When public officials are convicted of corruption in Hawaii, they may lose their jobs and their reputations but there is something they can almost always count on.
Unlike many other states, Hawaii has no legal mechanism to claw back lifetime payments and other benefits from people who abuse their positions of power.
That includes people like former Honolulu Police Chief Louis Kealoha who was convicted of two felonies this year related to his use of police officers to frame his wife’s uncle. The disgraced top cop is likely to keep receiving an estimated $150,000 per year in pension checks plus health care for life – even if he ends up in prison. His sentencing is scheduled for March.
“It’s really not right that somebody can commit a felony — a job-related felony — and still walk away with the complete pension,” said state Sen. Breene Harimoto, who has sponsored legislation on this issue. “There needs to be some punishment there.”
At least 25 states agree. From California to New Jersey, states have passed laws allowing government agencies to revoke the pensions of those found guilty of felonies committed on the job, according to a review by Governing magazine.
In Florida, pensions of public employees can be revoked for any felony conviction involving a “breach of public trust.” In Michigan, pensions can be withheld after felony convictions related to official duties. They can even be used to pay for the cost of incarceration.
Pennsylvania just toughened its pension forfeiture law this year. It allows the yanking of pensions from not only offenders of job-related felonies but also workers convicted of any offense punishable by more than five years in prison.
“It’s frustrating when we know someone has committed a serious crime, but we still have to pay them a pension using taxpayer money,” Pennsylvania Gov. Tom Wolf said in a statement to PennLive. “That’s just not fair to honest, hardworking Pennsylvanians.”
It’s an argument Hawaii has yet to embrace.
Year after year, pension forfeiture bills have been introduced at the state Capitol. Many were never even discussed, dying in committee. Others got some consideration but didn’t make it over the finish line. One proposal introduced this year by House Speaker Scott Saiki, House Bill 1264, passed in the House but died in the Senate.
Sen. Karl Rhoads, who chairs the Senate Judiciary Committee, said with 3,000 bills considered every year, committee leaders have to choose their priorities.
“I don’t really know what the problem is,” Rhoads said. “There are a bunch of bills where I don’t quite understand why we don’t pass them.”
Back in 2003, Gov. Linda Lingle was pushing for a benefits claw-back measure. Saiki, then House majority leader, told the Honolulu Star-Bulletin that her proposal was rejected for constitutional reasons.
At the time, the newpaper’s editorial board said legislators were protecting corrupt public officials and suggested opponents were “lapdogs of Hawaii’s powerful public employee unions.”
For the recent House bill, the unions didn’t weigh in. The only testifier was the Employees’ Retirement System itself, which had no objection.
It was tough to pin down where Hawaii’s unions stand now.
Malcolm Lutu, president of the State of Hawaii Organization of Police Officers, did not respond to requests for comment. Caroline Sluyter, spokeswoman for the Hawaii Government Employees Association, wouldn’t say where that organization stands on the issue.
“We are not in a position to comment on your story because pensions are not negotiable in our contracts,” Sluyter said in an email.
Sen. Les Ihara has introduced pension forfeiture proposals repeatedly since 2007, according to his office.
“If there’s a breach of public trust to commit a felony, there should be some degree of accountability,” he said.
There may be some legitimate constitutional questions, Ihara said, and those should be discussed.
“I just think it’s totally unfair that you can commit a felony and keep your pension.” – Hawaii Sen. Karl Rhoads, chair of the Senate Judiciary Committee
He pointed to a 2007 opinion from a Legislative Reference Bureau attorney who quoted a section of the state constitution: “Membership in any employees’ retirement system of the State or any political subdivision thereof shall be a contractual relationship, the accrued benefits of which shall not be diminished or impaired.”
The attorney, Ken Takayama, said a constitutional amendment would be “advisable.” That would have to be done through a constitutional convention or a referendum presented to voters, according to the state’s website. Voters rejected the opportunity to have a so-called ConCon in November 2018, and the chance won’t come again for another nine years.
Rhoads, an attorney, doesn’t think a constitutional amendment would be needed and said it’s “quite likely” 2020 will be the year Hawaii embraces pension forfeiture.
The Kealoha cases might spark the political will to make it happen, he said, but nothing is for sure.
In 2001, when former City Councilman Andy Mirikitani was sentenced to four years in prison for public corruption convictions, then City Councilman Steve Holmes told the Honolulu Advertiser that state lawmakers should change the law to prevent people like Mirikitani from keeping their pensions. It never happened.
“I don’t really know if anything will change,” Rhoads said. “I just think it’s totally unfair that you can commit a felony and keep your pension. Not one voter that I’ve ever talked to thinks that’s fair and I agree with them.”
Whether Gov. David Ige would support such a measure is unclear.
“This idea deserves consideration,” he said in a statement. “It really needs to be taken up by the Legislature.”
Harimoto has heard objections to pension forfeiture on the grounds that revoking a pension would impact a retiree’s family members who collect some of the benefit. There’s another argument that pension recipients who commit felonies should at least be entitled to the money they paid into the pension systems themselves. It’s an idea Harimoto is open to exploring.
“These matters can be resolved if we just have a hearing and a discussion,” he said. “I’m hoping with the Kealohas’ publicity, there will be enough public pressure.”
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