The Civil Beat Editorial Board Interview: The Standards Commission's Dan Foley And Robert Harris - Honolulu Civil Beat


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Civil Beat Editorial Board

The members of The Civil Beat Editorial Board are Chad Blair, Patti Epler, Nathan Eagle, Kim Gamel, John Hill and Matthew Leonard. Opinions expressed by the editorial board reflect the group’s consensus view. Not all members may participate in every interview or essay. Chad Blair, the Politics and Opinion Editor, can be reached at cblair@civilbeat.org.


Editor’s note: The Civil Beat Editorial Board spoke last week with retired Judge Dan Foley and State Ethics Commission Executive Director Robert Harris about the work of the Commission to Improve Standards of Conduct, which delivered its final report to the state House on Thursday. It proposes 31 changes that, if approved, could significantly alter the way local government operates. Foley, the commission’s chair, and Harris, a commission member, began by explaining why the report described government in Hawaii as being in “a deep moral crisis.” This interview has been edited for length and clarity.

Foley: We come from House Resolution 9, and essentially they’re not saying anything much different today. We are in a crisis and we have to do something. We have to restore public trust, but we have to earn it. We have to be more open. We have to be more accountable. And that’s what our mandate was to do. The sort of moral outrage is not just from our side. I think it’s from the general public, from the witnesses that testified before us, from the op-ed pieces that are published in Civil Beat. And there is just outrage and cynicism across this community because of events in the Legislature and City and County government, Honolulu, Maui County, on the Big Island. So this is really a unique opportunity, I think, with everyone recognizing dramatic things have to be done, and that’s what the commission is recommending and hopefully the Legislature will be receptive to it.

Harris: The report went to great pains to not only acknowledge the crisis that created it, but also acknowledging the various cases that are happening in the various counties. And they go to the heart of what is government. Obviously, the Legislature is the highest body of the land. But if you look at allegations against the Department of Planning and Permitting in Honolulu — that goes to fundamentally almost every person who’s trying to do any type of project activity, home remodel, kitchen remodel. So these systemic, frequent problems obviously go to the heart of people’s faith and trust in democracy. And so I do believe in strong language, but I think it’s appropriate in this situation and it is necessary that we take that type of approach to it.

Retired Judge Dan Foley, left, chaired the standards commission. Robert Harris of the state Ethics Commission was a member. Submitted

Of those 31 proposals, are there any priorities? 

Foley: There’s priorities to different people. You’ll see certain things that specifically come within the kuleana of the Ethics Commission, the Campaign Spending Commission, law enforcement. You have other issues. You can see from the minutes and agendas that we had certain commissioners sponsor media sessions on certain topics. So I think in terms of prioritizing — and I think if you asked the seven commissioners, each may, if they had to, have a different list — I consider them all as chair important. And I think from even the — some people would say housekeeping — items as far as a Campaign Spending Commission, they’re extremely important for the Campaign Spending Commission to be able to carry out its mandate, to investigate, to enforce its laws and to be more effective. So I wouldn’t list one through 31. I don’t think the order and the report suggests any priority. And members of the commission and members of the public will have different priorities which they’ll focus on.

Members of the media as well.

Harris: I don’t believe there is any silver bullet that’s going to radically, fundamentally change how government runs. I think it is a matter of incremental change. And in that light, I think all the measures are important and they all have some impact overall. And so I think it will be important to look at them as all being relatively important. Obviously, some may be a bit more challenging, whether it be politically, pragmatically, etc., but I think the intent from the commission was to be audacious and try to put some proposals out there that were more audacious, for lack of a better word, as well as some of the more pragmatic.

One of the things that was in your summary is you were advised by several of the people that advised you to be “bold,” to be bold in your recommendations and proposals to the Legislature. That’s the same as audacious, I guess.

Foley: Yeah. I mean, you know, (retired federal public defender Alexander Silvert), who wrote about the Kealoha mailbox conspiracy, that’s actually a phrase he used and urged us to be bold. And people are a bit cynical. They’re thinking the commission wouldn’t do it again — even if the commission recommended, the Legislature won’t do it. But we’re very optimistic. We think it’s the time. This session is the time. And if it doesn’t happen this session, the odds go down with each (subsequent) session to getting this done. And we’re hopeful the whole package, all 31 proposals will be adopted in one form or another.

Harris: I agree.

The first item calls to strengthen investigation and prosecution of fraud that involves reforming the penal code. How easy is it to reform the penal code law?

Foley: The penal code is a mess. It was adopted in 1972 based on the Model Penal Code, and there’s been various commissions to review it, to revise it, and to make recommendations. And it’s just a mess. It’s filled with inconsistencies and whatnot. But we’re not headed out to revise the Model Penal Code. We’re just out to include a couple of more sections on false claims, fraud, modeled after federal statutes.

“There is just outrage and cynicism across this community because of events in the Legislature and City and County government, Honolulu, Maui County, on the Big Island.” — Dan Foley

And where does that come from? I think you’ll notice that all the investigations and prosecutions of corruption have been by the U.S. Attorney’s Office, not by the (Hawaii) attorney general, not by the City and County of Honolulu or other county prosecutors. And in part when we conducted our hearing — and you’ll see it in minutes with representatives from the FBI, the Attorney General’s Office, the various prosecutors, former attorneys general, former U.S. attorneys — that the federal U.S. Attorney’s Office has better tools, they have better statutes which help them investigate and to prosecute. And all we’re doing is taking those key — I think there’s three of them — model federal statutes and adopting a state law so our state and county law enforcement prosecutors will have the same federal tools to go after corruption. And we just don’t have to turn to the feds to do it for us.

A second big takeaway is openness and transparency on the list. The Legislature has a pretty good website; it could be better. They just redid it, by the way. Live-streaming of hearings and floor sessions, that’s gotten better because of Covid. However, there is no explanation of why measures aren’t scheduled for a hearing. No explanation why a bill is unilaterally deferred. There’s a whole lot of other things that are in the report. But I wonder if you might just speak to openness and transparency here.

Harris: So we actually proposed a concept called a Public Bill of Rights with regards to their interaction with the Legislature. This is modeled off of one of the testifiers, Jim Shon, who actually came up with some of the concepts. And we wanted to run with that.

A former state legislator.

Harris: Correct. And so a lot of it dealt with how the public interacts with the Legislature, including on some of the things that you’ve mentioned — why are bills being deferred, the fear or the belief that decisions are being made away from the microphone. And then they come along and announce, “We’re going to do this.” And essentially the public’s being left out of that interaction or that dialogue. And so the intent here was really to force the reasons for that decision to be made public, to actually elaborate and actually express it.

The Commission to Improve Standards of Conduct meeting at the Hawaii State Capitol Aug. 17.
The Commission to Improve Standards of Conduct meeting at the Hawaii State Capitol Aug. 17. Screenshot/2022

There are additional concepts in that Bill of Rights, including civility in interactions. We’ve received some reports of actions that go beyond the pale of appropriate behavior. And again, I think this is really trying to address those that interact with the Legislature who frequently would have a lot of the same consistent concerns and complaints. And so an attempt there was to try to create a structure to say this is the standard of conduct that we’d like to see the Legislature held to.

With respect to (the Sunshine Law), again, there were efforts to again try to force decision-making to be more public. I should note one of the challenges we had is constitutional — the length of time that the Legislature meets. I think we went to great pains to try to look at ways to try to expand notification of when bills are being held … trying to figure out ways to try to make more notice and more opportunity for the public to participate. However, with the constitutional start date (the third Wednesday in January) and essentially primary elections on both ends, it’s really hard to figure out ways to make the Legislature more expansive and sort of build in some of that time without doing something more fundamental about essentially revising the constitution and when the Legislature starts.

Specifically the Sunshine Law. Is that what we’re talking about?

Harris: These are concepts of the Sunshine Law. So, for example, you know, getting one week’s worth of notice before a hearing is held and having the opportunity to see testimony — most of us would point to and say that that’s fair and reasonable and lets the public really be engaged. It’s difficult to build in such a condensed (60-day) schedule that the Legislature has currently. And so, again, a lot of the concepts we’ve tried to build in the Public Bill of Rights is trying to balance sort of the constitutional framework that we’re in and trying to figure out ways to try to really make it more clear and specific that the public should be engaged. For example, one of the things that we put in there was all testimony should be public 24 hours after it’s been submitted. And that’s sort of a compromise approach. But the intent is to, again, try to be more public and more transparent than what we currently are.

You had mentioned in some cases things have been done at the Legislature “beyond the pale.” Can you give an example? Is this an example of beyond the pale — not getting that testimony up within a day?

Harris: I think that reference was specific to interactions between a lobbyist and legislator, and I think the one that I’m specifically referencing was given to us in confidence. And I can explain the underlying circumstance. It’s a lobbyist that’s relatively well known who had difficulty in reporting a problem with a website because they didn’t want to see their career put in peril. And so the intent and the Public Bill of Rights included the idea of creating a new agency. But I think there really is an intent to try to build us into an existing agency and actually do an investigation and have the ability to report and actually try to do some resolution on the issue, versus the current structure would be essentially that lobbyist would have to report directly to the Legislature that there’s a problem, which is very difficult to do, particularly if it breaches into sort of sexual harassment or other kinds of areas.

So you want to create an Office of a Public Advocate. Could you speak a little more to what you see that doing and the fact that it would be assigned to the AG’s office? How would that be different than just having an assistant AG rule or give an opinion on something, which they already do?

Harris: I want to be clear that the concept of the Office of a Public Advocate was a straw proposal, recognizing, for example — I think originally we discussed trying to have the ombudsman office do some of this investigative work and some reporting out — recognizing they already have some capacity challenges in that currently the ombudsman is appointed by the Legislature. So there’s definitely sort of an appearance issue there whether they could fairly investigate as well as (there are) resources and capacity kinds of questions at the Legislature that I think they would have to work out.

“I don’t believe there is any silver bullet that’s going to radically, fundamentally change how government runs. I think it is a matter of incremental change.” — Robert Harris

We think the Bill of Rights is really what should be focused on and essentially trying to make sure there’s a fair, transparent, objective body that can actually help do some investigation work and sort of look into these complaints as they come in. The idea of not necessarily assigning it to the AG’s office was in part because the AG currently will represent and advise the Legislature. And so there’s also sort of an appearance issue there of trying to create some separation. The idea was it would be administratively attached to the AG’s office, but the idea is to be a separate entity.

And then what do you see them doing, say, like on a day-to-day basis? What would be something you thought this public advocate would do?

Harris: So I guess you hear me repeatedly going back to straw proposal. I don’t think any of us necessarily really wanted to stand up a new agency specifically for this. I think it would make sense to put it to an agency that already has some of that capacity. The challenge was trying to find the right agency to put it into. I think ultimately that’s the correct answer, to find an existing agency and build it into that.

I guess what I’m asking is would someone who felt like they were not getting a document they wanted, or not into a hearing they wanted, could they go to this public advocate and ask them to step in and intervene, which is common?

Harris: Absolutely. I think that’s exactly how it’s written up currently. And so I think we envisioned it as being somewhat similar to the ombudsman’s office, which has the ability to engage, interact, lean on, try to get resolution. And ultimately, if they’re not getting a resolution to publicly report out, there is a systemic problem here. “Here’s what’s happening.” So it would be essentially their enforcement power under the constitution. Currently, the Legislature has a right to regulate itself. And so there’s a little bit of a difficulty of saying we’re going to somehow take some of that away from the Legislature. But the idea is to have somebody who can verify, validate, protect confidentiality when necessary and say there is a problem here. We validated it and this is what needs to be done.

Louis Kealoha leaves with Attorney Gary Modafferi leaving US District Court.
The commission’s final report to the House cites a string of high-profile public corruption cases in Hawaii, including the one involving Louis Kealoha, left, Honolulu’s former police chief. Cory Lum/Civil Beat/2019

Judge, did you want to add anything before we go on?

Foley: Yeah, I’d just like to, generally on the legislative process. I’m so old I started going to the Legislature when everything was hard copy — in 1984, on behalf of the ACLU, where you actually had to go sit in a room and just go all day, every day to every piece of paper that was produced, referred and acted upon to have some sense what was going on and what you could do. So we felt it was important to point out in the report how far we have come, how accessible activities in the Legislature are by their web page, by live-streaming, literally at the tip of your finger. You can access these things instantaneously and follow measures and amendments and committee reports and problems, etc. That’s not to say it can’t be improved. The public wants it improved and our recommendations are to make improvements. But I think a lot of members of the public that don’t interact with the Legislature on a regular basis don’t fully appreciate how accessible it is.

You mentioned the interim report that was due in March and how frenetic — that’s the word that was used in this final report — how frenetic the pace was in order to get things to the Legislature. And we’re talking about the 2022 session, which was going to conclude in six weeks or so or whatever the case was.

Ultimately, 15 recommendations from the interim report did pass and two were vetoed: Senate Bill 3172 on requiring public boards to maintain recordings of their meetings and make them available, and in particular, Senate Bill 3252, capping the cost of public records and exempt requesters from paying fees if a records request is made in the public interest. The governor, in his veto message in July, said both bills would hamper the government’s ability to do its job. What’s your response to the soon to be former Gov. David Ige’s response? And the second thing is what’s going to be different the second time around to get these through?

Foley: Number one, we will have a new governor. So it’s going to be Josh Green, not David Ige, that looks at these bills that they pass — and we expect them to pass again even with the new Legislature. We did make an attempt to address concerns raised by Gov. Ige. And we think we’ve struck the proper balance and we’re hopeful that the new governor will agree.

Harris: One of the concerns was the inability to interpret the passed bill. And so in this version, we specifically had references to the federal statutes and sort of the interpretation to simply say that that is what we’re supposed to be looking towards. So hopefully some of the concerns about the ambiguity of the passed bill are going to be addressed in that way. The concern specifically about the costs of public records — the public interest was really fairly narrow and limited.

You use the word “optimistic” — that all 31 of these proposals are going to be taken seriously and may be passed. And you mentioned the new governor. The report itself also mentions that as well as new legislators and new leaders in the counties. But you’re also dealing with the very same institution that has, in some cases, moved forward on reforms and other cases have not. And you are talking about directly impacting the way they do their business, including how they raise money, how they run for office, what they disclose as part of their rules. What makes you think that the Legislature is going to go along with this very audacious package?

Foley: Well, when I say I’m optimistic, that’s the only way you can get things done. If you’re cynical, you’re not going to get anything done. So when I say I’m optimistic, I’m not making a prediction all 31 measures will pass. That’s how the commission is going into it. But I do think we’re at a unique time. This initiative came from the House of Representatives House Resolution 9, to a large degree, from the leadership of Speaker (Scott) Saiki. And I think the House is going to be very receptive. We were created by the House, but we’ve complied with the mandate of the House, and we’re giving the House what they asked for. Now, the Senate, you know, we’ve had senators come testify before our commission, Sens. (Karl) Rhoads and (Chris) Lee. We’ve followed, in fact, this whole area really reading your Q&A with candidates for office. I’ve gotten more information from senators on what they think of the commission and our proposals there than I have from testimony.

Opening Day Legislature 2022, House Speaker Scott Saiki speaks to the media duirng a press conference held at the Capitol.
The Commission to Improve Standards of Conduct was established by the Hawaii House of Representatives, which is lead by Speaker Scott Saiki, right. Cory Lum/Civil Beat/2022

But you know this Senate, it’s more of a question mark for me, but I would hope the House at least would act quickly and adopt our recommendations and pass it over. As far as the way they do business, I don’t think transparency hurts the way they do business. I don’t think having greater transparency in terms of relationships with lobbyists, expense accounts, discussion on bills, why bills are moving forward, not moving forward. I see no way how this disrupts or is harmful to the business of the Legislature. In fact, if anything, by having greater transparency, creating more public trust and support in the institution will make it better for them. So I don’t see a downside.

Harris: I think there’s two answers. One is, every bill that we’ve put forward, we’ve really attempted to look at all sides of the view, and we’ve really tried to put together bills that are inherently reasonable. They may be audacious, but the idea is we’re trying to find a balance between sort of the normal functioning of government and sort of the interest of integrity, transparency and ethics. And so I think these bills would have a good shot regardless of the commission.

The intent is we’ve tried to put together good ideas for the Legislature to consider. But also, just as importantly, I think some of this is going to rely upon the public’s interest and enthusiasm for these concepts. We want the public to be aware of what’s being put out there. We want the public to understand why these ideas are being put together the way they are and to engage. Because if the public doesn’t engage, then that’s essentially the pendulum shift that’s going to happen. Legislators may assume that this no longer is a topic of interest. It has to remain a topic of interest and it has to be done in light of all these terrible, deplorable situations we’ve had in the past year and a half or so.

The House resolution, as you point out, came not long after the Ty Cullen and J. Kalani English admissions of bribery. Of course, that was a Senate leader and a House leader, but the resolution is coming entirely from the House. Your work was entirely ordered by the House. And while you’ve talked with Sen. Karl Rhoads, who leads the Judiciary Committee, and Sen. Chris Lee, who I think now leads transportation, did you receive any feedback from Senate leadership — the president or the vice president or the majority leader, given that one of their own was indicted in one of these terrible scandals?

Harris: Early on I did meet with the Senate president, and he assured me that the Senate would look at all the concepts that come from the Standards Commission. So I have faith and trust that they’re going to look at these ideas objectively. And the hope is they’re going to carry forward.

I noticed you want to put on the ballot a term limits proposal for 2024. I’m just curious, did you consider putting on the ballot a citizens initiative process proposal? Because a lot of the things that you guys are proposing here, which cynical us thinks won’t get through, are done through citizens initiatives in other states. Hawaii is, I believe, the only Western state that does not have a statewide process for citizens initiative.

Foley: That’s an area I’m intimately familiar with. I represented the Save Sandy Beach initiative years ago. I represented a group out of the Big Island putting an anti-nuclear referendum on the ballot because, as you know, we do have it at the county level. We don’t have it at the state level. You know, that issue of initiative — referendum, recall — was discussed at the 1950 Constitutional Convention, the 1968 Con-Con, the 1978 Con-Con. At all three constitutional conventions it has been discussed and not proposed. We discussed it and we felt there were problems with it. It originated, as you know, out of Oregon, is sort of part of a popular movement, but California is kind of the poster child on what went wrong — that it’s really a vehicle for special interests and big money to pretty much put anything on the ballot and push for it. It’s been abused in that state. That was one of our concerns.

Senate opening day 2019 with lei and people filling up the chambers.
The commission’s proposals will require support from the state Senate. Cory Lum/Civil Beat/2019

Another concern was that it should be somewhat limited in scope. For example, in California, you can propose a state constitutional amendment, and then we thought that would be entirely inappropriate. I was at the receiving end, as you know, of a proposed constitutional amendment that overturned the rights of gays to marry. If we had a citizens initiative, I wouldn’t have been able to fight that off for four or five years. It would have happened within a month of that state court decision. So we’re not adverse to it being further discussed. We know a lot of people would like it. Our concern has been abuse. And if it were to be discussed at the state level, that it’d be somewhat limited. But there was no push to make it part of our recommendation.

We disagree as an editorial position and I’ve personally lived in states where it works really well. If you look at Arizona this year, they did great things. They rejected all the bad things and passed the good things. So I do think it works well and everybody always refers to California. That was so long ago.

Foley: I think California is still abusing it.

Harris: Speaking as somebody who used to be at a nonprofit, it’s pretty well known: Here’s the amount of money you need to get a ballot initiative in California. An estimated $1.5 million is what it took to get something on because you had to hire people to go out and get the signatures. So essentially, it really became a well-funded special interest focus or project in order to have that kind of conversation.

I just think you need to look at states that are not California, but some of the successful ones, Washington state, Arizona. But also this is Hawaii. Everyone’s a Democrat. There’s no way to get anything through here unless you do.

Foley: Oh, yeah. The Democratic state prohibited same-sex marriage, which was later ruled by the U.S. Supreme Court to be unconstitutional.

Two things I was curious about. One was it looks like there’s a significant amount of real estate in the report addressing the need to reform lobbyists, lobbying behavior, including things like visitor logs, which are sort of more standard in some other jurisdictions. But I just wondered if either of you would care to address the perceived need there in terms of the role of lobbyists and how the measures you’re suggesting address them.

Harris: My office, just for background, does regulate the lobbyist chapter. And I think sort of looking nationally, we probably are on the lesser end of lobbyist regulations. And so there’s clearly sort of a need to look at that and make sure we’re doing a good job.

So some of the recommendations currently that are in the report include mandatory training every two years as a condition to register as a lobbyist — that you’d have to sign up. And we would do something similar to what we currently have, which is an online, self-directed training course. Anybody can go on and take it and then simply register to be a lobbyist. That’s really intended to capture changes to lobbying regulations, so that people are always kept abreast of what’s going on.

“And we’re hopeful the whole package, all 31 proposals will be adopted in one form or another.” — Dan Foley

We put in a section essentially holding lobbyists also accountable for essentially legal gift-giving to state employees. Currently, only state employees are regulated. And so we’ve had situations where lobbyists have basically tried to give something to one employee and got turned down … and then (they move to) the next employee and essentially without repercussion. And employees are saying, “Hey, you know, can you tell them to stop, and try to make it reciprocal?” So if the laws are saying whether you’re a city employee or whether you’re the lobbyist trying to give it a legal gift (it applies).

We did have quite a bit of discussion about visitor logs, lobby IDs. I can say personally that I didn’t really want to push forward with that. Recognizing that our Capitol is probably one of the most open capitols in accessibility — it’s so open that we may be headed in that direction anyways, where that’s getting increasingly more closed off. I didn’t necessarily want this to be the reason to start saying everybody has to check in and sort of lose some of that openness that currently exists.

We have internally — the Ethics Commission — talked about potentially trying to publish photographs of registered lobbyists with the idea of, you know, folks are really kind of curious who is who, maybe trying to create a mechanism to find that out as a means to address some of this. We also in the Bill of Rights — and this also sort of goes to lobbyists — put in a requirement that drafts (of bills) be published. So if a lobbyist is submitting a draft of a bill or something, that gets published in real time. If a lobbyist is lobbying on a particular bill or concept that we actually get the bill number or get the thing that they’re working on, not just sort of a general description. These are admittedly probably small steps, but I think they’re important small steps that need to happen.

A quick follow-up question, unrelated — whistleblower protection. I was just curious whether that emerged as an issue.

Foley: I realized when I filed a federal lawsuit, we didn’t have a state statute. I had to file under the First and 14th Amendments. And so I did write — this would have been in the late ’80s — a state whistleblower act. We have one on the books. I haven’t followed it, whether it’s been updated or not. The problem with whistleblowers isn’t necessarily the law, it’s that if you blow the whistle, what’s going to happen to you? There’s not supposed to be retaliation. The law prohibits it, but there’s more discreet ways of retaliating without leaving fingerprints. (Emeritus UH law professor) Randy Roth in his testimony before the commission, which you’ll see on YouTube and in our minutes, he really focused on the absence of whistleblowers in Hawaii. People know what’s going on and see what’s going on. But because we have this small community we are reluctant to report it, it’s not because of the law. According to Randy, it’s because of the culture we have.

Interesting.

Harris: Any complaint that is submitted to the Ethics Commission by statute is confidential. And so some people, I think, have criticized the Ethics Commission for being very closed on its investigations of complaints, but in part the intent is to make people feel comfortable in coming forward. And we receive, you know, in the magnitude of 40 or 50 complaints every month. Some of them are very apparently from somebody deep within that agency, your department, who feels comfortable submitting an anonymous complaint where they can’t get tracked. And again, I’m not saying that that necessarily replaces the need for a well-functioning Whistleblower Protection Act, but I do just want to make sure that people are aware that there is a mechanism somewhat to try to get investigations into these things.

In addition, started by my predecessor about two and a half years ago, we started a fraud waste hotline, specifically with the Attorney General’s Office, to try to encourage these types of complaints to come forward. And we allow them to come in anonymously. We have a number of people call in and give tips, etc., and then jointly with the Attorney General’s Office, we work through who’s going to investigate, who’s going to handle it, sort of whose jurisdiction does it really fall under and try to address it. We also encourage people to leave their name and number — by statute we have to treat them confidentially. They ended up being followed up with, and we tell them, “This is what we’re doing, not doing, we need more information, etc.” And so I want to make sure people are aware of that option and use it.

You were talking about legislation introduced by request.

Harris: We certainly talked about the “by request” (bills that are introduced anonymously) quite a bit, and we did not specifically come forward with a solid recommendation on that. Let’s say a large lobbying firm writes up a complicated, detailed statute, the idea is that that has to be published and identify that they came from a law firm or somebody with a disproportionate amount of interest or influence. The by request was not addressed, but it certainly was brought up by a number of people. And it’s potentially something they could still look at. I think if that were solely up to me, I don’t necessarily have a concern about by request, but asking them to identify who is (the requester) in some ways that could be really beneficial. Introducing on behalf of a constituent is a great way to recognize that constituent’s recommendations.

But if a gambling company wants to have a gambling bill passed, you know, why wouldn’t we want to know who that is, too? By the way, there were seven of you on the commission, correct? How did you deal with dissent then? Some of it is reflected in the minutes and disagreements. But how unanimous were you in the outcome here?

Foley: It’s really remarkable. You know, we have the Ethics Commission. We have a Campaign Spending Commission and Common Cause, League of Women Voters, a prosecutor and former U.S. attorney, a retired Republican lawmaker. And many of these members have interests of the organization they represent, the agency they represent. But despite all of this, so much of what we did was by consensus. And even when there was dissent or disagreement, you can see it in the minutes. You can see it to a certain degree in the report on certain measures that there was disagreement, but on the whole, the process was so professional and civil.

It was really inspirational to be with such a great group, with great expertise, public interest in mind, balancing their agency or their organization with a larger mandate. So you’ll see certain issues where there’s disagreement. Term limits probably had one of the greatest disagreements. We ultimately recommended (term limits), although there was dissent by three members, and we accommodated some of the concerns of those who did not support term limits.

Harris: There’s an opportunity for commissioners to introduce minority comments if they so choose. And I think the intent and the report does try to capture some of that.

As both of you know, as all of us in this room know, there is a habit, a pattern of reports, recommendations, commissions, their work coming out. And we use the phrase “they sit on a shelf” and they gather dust. And I’m hearing both of you express optimism that that’s not going to happen. But what if it does happen and what is your work going forward? Robert, obviously as the ethics director, you’re going to be down at the Legislature arguing for your package. But are you guys done with your work — and what’s going to happen if nobody jumps on all this stuff?

Foley: I chaired the appellate review task force to come up with a new appellate system created pursuant to a resolution adopted at the Legislature. The co-chair was Paula Nakayama. We submitted our report. The Legislature adopted exactly what we recommended. I chaired a panel put together just a couple of years ago reviewing the whole judicial selection process after the latest Supreme Court judge — what we recommended in most part was adopted by the Legislature, and there has been some reform already in the Judicial Selection Commission, already publicizing lists of applicants for the Intermediate Court of Appeals. And we’ll do the same for the state Supreme Court.

So my experience with the Legislature has been very positive. I do know what you are referring to. I don’t think that’s going to happen with this report and the recommendations.

“These systemic, frequent problems obviously go to the heart of people’s faith and trust in democracy.” — Robert Harris

As far as the commission itself, the way I read House Resolution 9, our life expires when we (submitted) the report on Dec. 1. That’s it. That’s all we were mandated to do. But the commissioners are not finished as individuals, as representatives of the various agencies and organizations they represent as public citizens. So we’re all committed still as private citizens to work and get others to support what we’re recommending to make it happen.

Now, if the Legislature, for some reason doesn’t, the voters will hold them accountable.

Harris: I would like to adopt all the comments of Judge Foley and include them as mine, except for the record of success on reports. I think some things that are distinguishing this report from maybe some others you can compare it to that. We have some very specific bill recommendations in there that are something the Legislature could pick up and run with. It’s not vague. It’s not open-ended. These are very specific concepts the Legislature can adopt, even if they don’t get adopted this year.

Let’s say we get half the bills through. I think we can all point to them and say that that was a tremendous improvement. In addition, those concepts will not die. They’ll continue to float and echo. And, as we all know, sometimes bills have to percolate for a couple of years before they’re ready to be adopted.

That being said, I agree entirely with Judge Foley that there would be public pressure for them to move forward on some of the bills. So I feel confident that some of these concepts are going to move forward.


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The members of The Civil Beat Editorial Board are Chad Blair, Patti Epler, Nathan Eagle, Kim Gamel, John Hill and Matthew Leonard. Opinions expressed by the editorial board reflect the group’s consensus view. Not all members may participate in every interview or essay. Chad Blair, the Politics and Opinion Editor, can be reached at cblair@civilbeat.org.


Latest Comments (0)

I'd love it if that were the case!! I saw many re-elected who'd perpetuated the rail rail fiasco, continue "shady" practices, and more, so one can only hope but my fingers are crossed...

KeepingItReal · 2 months ago

Excellent work! I hope the legislature acts on all the recommendations in one way or another, so long as the end results are good.

MW · 2 months ago

It's embarrassing to know as a Fact, that Without the FBI, US. Attorney and Our Federal Prosecutors actively Investigating and prosecuting State Legislators, Departments/ C&C & Departments, etc. For Corruption, The Corruption would Never be Exposed or brought to Light!That directly holds the State Attorney, Legislators, Law Enforcement, Prosecutors, etcAccountable for Not Performing their duties In Exposing Corruption for these Entities First before the Feds Did!"No one Is Above The Law, Including those who write, enforce and work for the government of the People!"

PSpects · 2 months ago

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