When Gov. David Ige announced Monday he plans to veto 28 bills approved by the Legislature this year, he aimed some extra criticism at a number of measures he said lawmakers passed without giving the public enough opportunity to provide input.
The highest-profile example is House Bill 613, which directs the spending of hundreds of millions of dollars in federal pandemic relief funding for education. Among other things, that bill awards bonuses of $2,200 to full- and part-time public school teachers.
In a message warning that he intends to veto the measure, Ige said it violates federal guidance on how to distribute the relief money.
That spending plan for the federal money was also developed during conference committee negotiations between the House and Senate at the end of session that were not held in public, so “it is unclear whether any meaningful community consultation occurred,” Ige wrote.
“This lack of a transparent and open consultation process further puts the state and Department of Education at risk of being in violation of federal guidance,” Ige wrote.
Ige also cited other examples where he said the Legislature bypassed the public input component of lawmaking during conference committee.
Significant last-minute amendments to another bill to create a new community development district on Maui “did not allow for public input,” Ige declared in another intent-to-veto message.
Still another measure to create a board to oversee development around public transit stations was also significantly amended during conference committee, “thereby denying public input,” according to Ige.
The public also had no opportunity to comment on much of the content of House Bill 1296, which would repeal the Tobacco Control and Prevention Trust Fund and transfer millions of dollars from that fund to the state general treasury, Ige wrote.
In an interview with the Civil Beat Editorial Board on Tuesday, Ige said he noticed that pattern and instructed his staff to review bills to see if the public was consulted because “I thought that it would be a part of the decision about vetoes.”
“I can’t ever recall a session that had so many of those kinds of things where … the final draft had really very, very different language,” Ige said of the bills that emerged from conference committee this year.
Ige’s intent-to-veto messages published this week make it clear he also has other concerns with each of the bills that he criticized for a lack of public involvement.
Sandy Ma, executive director of Common Cause Hawaii, said her organization was also concerned with the tactics used in conference committee this year that tended to exclude the public.
“Our concern in conference is the public isn’t allowed to testify, we don’t see the proposed conference drafts that are being circulated, we are not in the room — especially this time,” she said. “We don’t know what horse trading is going on. We just have no clue as to what bill is going to emerge.”
When lawmakers add new content to bills in conference committee in the last days of session, “it drastically changes a bill that comes out of conference, and we have no input. The public has no input into what emerges, the final version of the bill,” she said.
Randy Perreira, executive director of the Hawaii Government Employees Association, said even his organization was not consulted about the teachers’ bonuses included in HB 613. HGEA is the largest public worker union in the state, and has close ties with a number of key leaders at the Capitol.
“This took us by surprise, the issue of the bonus took us all by surprise,” said Perreira.
HGEA opposes the teacher bonuses because it says raises and bonuses should be negotiated between the union and Ige and the other public employers, and bonuses are not something that can be simply handed out by the Legislature.
In fact, Perreira said that if the bonuses were approved they would be subject to a legal challenge because the Hawaii Supreme Court has already ruled the Legislature cannot interfere with the collective bargaining process.
“In a general sense, sure, I think it would have been much better. We would have been able to share our concerns had this been addressed in an open committee hearing, and we could have testified and raised our objections and concerns at the time,” Perreira said. “So, yeah, in that respect we do have a problem with how it came about.”
But House Democratic Majority Leader Della Au Belatti suggested it is a positive sign that the governor is criticizing only a half-dozen out of the 28 veto candidates for “lack of transparency.”
“That’s not bad,” said Belatti. “If it was, like, half, that would be bad. The percentage is good.”
Lawmakers have used the practice of significantly changing bills at the last minute in conference committee “somewhat judiciously,” she said. She described it as “a legislative tool and a legislative practice.”
There was an additional complication this year because the conference committee process was compressed by a week during the pandemic, and the compressed session limited the ability for the public to provide input, Belatti said.
“The ideas that are percolating in each of those bills have for the most part been discussed throughout the session,” she said.
For example, some observers were startled to see the closed-door conference committee negotiations this year produce a last-minute plan that would allow the counties to impose their own hotel room tax of up to 3%.
However, Belatti said the larger issue of balancing county and state tax authority has been discussed for years.
Some new ideas do come out during negotiations in conference, and the “ultimate check” is a 48-hour waiting period after conference and before the final voting when lawmakers decide if they support the final drafts of each bill, she said.
The public can also weigh in by directly contacting and lobbying lawmakers after conference and before the final votes, Belatti said. And the public has similar informal opportunities to provide input on bills by contacting the governor directly, she said.
“For me, the public input occurs at many different stages,” she said. “If you’re going to just say public input occurs at that moment in the legislative process, then I think that’s a naive way of looking at how the public weighs in.”
Senate President Ron Kouchi and Senate Democratic Majority Leader Dru Kanuha did not respond to a request for comment Wednesday.
Ige has appeared to be more accepting of the internal machinations of the Legislature in the past, even when they tended to limit public participation in the legislative process.
The League of Women Voters of Honolulu and Common Cause sued to challenge a maneuver known as “gut-and-replace” in which the contents of a 2018 bill were stripped out and replaced with unrelated material.
Critics said gut-and-replace made it difficult for the public to follow the process and provide meaningful input, and that case is still pending before the state Supreme Court. Ma noted that Ige’s appointee, Attorney General Clare Connors, defended the practice of gut-and-replace in that case.
“It may be that his term is about to end and he’s term limited and he’s just being more kind of open about his concerns, I don’t know,” she said.
For his part, Ige said he doubts that vetoing the bills that he believes bypassed public input would prompt the Legislature to overhaul its conference committee process.
“I don’t know if a veto by, in and of itself would really change their behavior,” he said.
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