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The Hawaii Ethics Commission has been through some tough times recently. It’s had to deal with hostile public reaction to an unpopular ruling that had effectively blocked educational trips for public school students, the departure of its executive director and continued pressure from legislators who believe several commission rulings improperly impinge on legislative prerogatives.
And two recent court rulings — one local, one federal — indicate more troubles ahead for the commission.
A state judge last month ruled in favor of the Hawaii State Teachers Association in a lawsuit brought by the union and overturned the commission’s guidelines on educational travel.
In a June 17 ruling, Circuit Court Judge Rhonda Nishimura overturned guidelines issued by the commission last year. Those guidelines had put at least a temporary stop to educational trips for students which, for decades, have been organized and led by teacher chaperones and supported by the Department of Education.
The commission’s guidelines said teachers would put themselves on the wrong side of the state ethics law if they accept free travel provided by educational tour companies in exchange for their work organizing and leading student tours.
The guidelines, adopted over the protests of the DOE and the HSTA, considered free travel for teacher-chaperones to be an impermissible “gift” and also a violation of the “fair treatment” provisions of the ethics code.
The teachers union unsuccessfully pursued an administrative challenge to the commission’s guidelines and, when their challenge was rebuffed, filed suit to block them.
Former Congresswoman and current congressional candidate Colleen Hanabusa represented HSTA in its legal challenge.
Hanabusa argued the travel guidelines exceeded the commission’s authority. By law, the commission is required to issue advisory opinions when a state official or employee asks for advice as to “whether the facts and circumstances of a particular case constitute or will constitute a violation of the code of ethics.”
By their nature, Hanabusa argued, advisory opinions must deal with the specific facts of a particular case. But the commission’s guidelines on travel looked beyond any specific case to spell out a hard and fast rule applicable to all proposed travel.
In adopting the general travel guidelines, the commission had to interpret the gift provisions of the ethics code, which prohibit state officials or employees from soliciting or accepting gifts when it “can reasonably be inferred” that the gift is intended to influence an employee or official in the performance of their official duties or reward them for their official acts.
Hanabusa and HSTA argued that the commission failed to spell out the basis for determining that it could “reasonably infer” that the free travel was given to influence or reward a teacher in carrying out their official duties.
Instead of issuing guidelines, the plaintiff argued, the commission should have promulgated a proposed rule on travel, subject to the public notice and public hearing requirements of the Hawaii Administrative Procedures Act (Chapter 91 HRS).
In her decision, Nishimura agreed with the union, ruling the commission’s travel guideline “embraces a broader group than just those teachers who have plans scheduled, but had broader application with respect to teachers who intend to take a trip, etc.”
Therefore, Nishimura ruled, “it is subject to rulemaking.” And the commission is barred from enforcing its travel guidelines until it completes the rulemaking process. The case may still be appealed by the commission, but for now its travel restrictions will remain in limbo.
One key point buried in the legal arguments is bound to add to the commission’s woes.
In documents filed in the course of the lawsuit, Hanabusa repeatedly noted that the issues underlying the disagreement over teacher travel and education trips are also central to the application of the gift provisions of the ethics code to legislators and other public officials.
When is it “reasonable to infer” that a gift is an impermissible attempt to influence or reward a legislator?
The Ethics Commission gave its answer to the question in a set of guidelines issued in mid-2011 which spelled out new restrictions on gifts to legislators. According to these guidelines, legislators are prohibited from accepting invitations or tickets to attend gatherings such as receptions, dinners or charitable fundraising events costing more than $25 unless there is a “legitimate state benefit.”
“Generally, a desire to “show support” for an organization by attending a fundraising function is not, by itself, sufficient to establish a ‘state benefit,’” the commission advised.
According to the commission’s guidelines, it could reasonably be inferred that invitations to these events are intended to influence legislators in their official duties in violation of the ethics law.
The ruling drew unusually public pushback from legislators, but in the end the commission’s guidance prevailed.
The gift guidelines for legislators, and the guidelines for educational travel, both rest on the commission’s interpretation of that short phrase, “reasonably be inferred.”
That overlap makes this dangerous territory. Prior ethics opinions about gifts to legislators have been grumbled about at the Capitol but not directly challenged. It’s a rare elected official who wants to publicly be seen on the wrong side of ethics.
But if the commission holds to its prior position and the teachers case is ultimately subject to a rulemaking process, it will open the door to challenges to the way the same gift provisions have been applied to legislators and lobbyists. At least some players are likely anxious to renew that debate, especially in the good company of thousands of interested public school teachers, students and parents trying to salvage future educational trips.
And then there’s the latest curve ball thrown by the U.S. Supreme Court in its decision last week overturning the corruption conviction of former Virginia Gov. Bob McDonnell.
McDonnell was convicted of taking official action in exchange for nearly $200,000 of loans and other gifts from a businessman seeking state assistance in developing and marketing a nutritional supplement made by his company.
McDonnell had been convicted after the jury found that he took official actions in exchange for the cash and gifts. These “official acts” included arranging meetings between the businessman and other state officials to discuss the product, hosting events for the company at the governor’s mansion and contacting other state officials concerning possible state-funded research studies.
In a move that surprised and unsettled many legal observers, the high court held these types of things do not comprise official acts.
Further, the court held that applying a broad view of what constitutes official action raises significant constitutional issues.
The law prohibits “quid pro quo” corruption, an agreement to take an official act in exchange for some valuable consideration.
But the court described the view of prosecutors as overly broad.
“In the Government’s view, nearly anything a public official accepts — from a campaign contribution to lunch — counts as a quid; and nearly anything a public official does — from arranging a meeting to inviting a guest to an event — counts as a quo,” the court found. “But conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns — whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm.”
And that brings us back to Hawaii’s ethics law.
The gift provisions, for example, prohibit gifts that can be seen as influencing or rewarding official action by a legislator or employee. And the ethics laws are designed not only to prevent actual corruption but the appearance of corruption or conflict of interests.
But now that the Supreme Court has spelled out a constitutional case against a broad interpretation of what constitutes an official act or official action, and in the process devalued the matter of appearances, it seems that the state Ethics Commission — and other ethics agencies — will be forced to review their earlier opinions and advisories to take into account those new constitutional concerns.
It’s hard not to be worried about how this is going to finally play out.