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The Sunshine Editorial Board

The members of Civil Beat’s editorial board focused on ‘Let The Sunshine In’ are Patti Epler, Chad Blair, John Hill and Richard Wiens.

Hawaii lawmakers should embrace this idea for a new legislative umpire to “call balls and strikes” and otherwise have the public’s back.

The Legislature was too quick on the trigger last session when it shot down a novel concept for ensuring that lawmakers treat themselves and the public fairly.

A proposed Office of the Public Advocate — or something similar — deserves more serious consideration in 2024.

It’s the brainchild of the Commission to Improve Standards of Conduct, which was formed last year to address state government ethics, transparency and accountability after a series of public scandals that included the bribery convictions of two legislators.

The commission envisioned the public advocate as someone who could push lawmakers to honor a “Bill of Rights” that was the centerpiece of its reform proposals. Both were wrapped into House Bill 725, which was deferred without a vote in the House Judiciary Committee after it conducted a public hearing.

The quick out occurred despite widespread public support for the measure. Former Judge Dan Foley, chair of the standards commission, called it “an aspirational starting point for how the public and legislators can best engage with each other in a respectful and transparent manner during the legislative process.”

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Some legislators contend the “rights” have already been written into the rules of the House and Senate, but many of the more substantive proposals have not.

Regardless, the idea of creating a new place to turn for people who feel mistreated by the Legislature — whether it be an Office of the Public Advocate or something else — has merit.

Someone To Call Balls And Strikes

Robert Harris certainly agrees. The director of the State Ethics Commission was also a member of last year’s standards commission.

Harris still believes a public advocate could fill a niche between the Ethics Commission, which has some oversight of all levels of state government when it comes to legal issues, and the Legislature, which is constitutionally charged with policing itself.

As proposed, the Office of the Public Advocate wouldn’t possess enforcement power, but would have the ability to investigate, compel testimony and go public with its findings.

Commission to Improve Standards of Conduct panelist Robert Harris conducts meeting. Mr Foley was absent.
State Ethics Commission Director Robert Harris thinks the concept of an Office of the Public Advocate deserves renewed consideration during the next legislative session. (Cory Lum/Civil Beat/2022)

“You want to have some independent entity that has the ability to kind of call balls and strikes,” Harris says, adding it would be able to “facilitate and cajole and if necessary, publicize areas of concern.”

It could deal with all manner of complaints against individual lawmakers or about legislative procedures that seem unfair.

Harris cites two scenarios that could involve the public advocate.

“For example, sexual harassment by a legislator to, say, a lobbyist,” he says.  “There really isn’t a great mechanism or remedy or ability for them to report that and have that analyzed or reviewed in presumably at least a semi-confidential matter in the beginning. And that was a part of the idea of having an entity charged with being able to handle complaints or allegations or concerns around this.”

“Hawaii was the first state to create an ethics commission in its constitution. So we tend to be one of the leaders.”

Ethics Director Robert Harris

“A similar circumstance might be where a legislator demands a state employee do something and then when they don’t do it the way the legislator likes it, all of a sudden those positions are zeroed out in the budget,” he said. “There have been several accusations of that over the past couple of years. Seems to be the type of circumstance where you really want to have some third party that can analyze it.”

Many other complaints would undoubtedly be less complicated — allegations that the House or Senate’s own procedural rules are being violated, for instance.

Like Hawaii, many other states have their own ethics commissions to compel adherence to laws. But Harris says he doesn’t think the concept of an Office of the Public Advocate as proposed by the standards commission exists anywhere else. The National Conference of State Legislatures was also unable to point to one.

“I think this would be a new proposal that is unique,” he says, adding, “Hawaii was the first state to create an ethics commission in its constitution. So we tend to be one of the leaders.”

Prospects For Next Session

Harris says he’s looking for a third party to champion the public advocate concept at the next legislative session, and he may have one in Common Cause Hawaii.

“It will definitely be something that we are alerting legislators that we are aggressively interested in and we’ll be pursuing,” says Camron Hurt, the organization’s new program manager. But he added a cautionary note.

“If you’re asking me to be realistic, if I know that we’ll get it through this legislative session, I’m not so sure because I can anticipate pushback, especially in an election year,” Hurt says.

Sen. Karl Rhoads, left, and Rep. David Tarnas, chairs of the Senate and House Judiciary committees, aren’t convinced of the necessity for an Office of the Public Advocate. (David Croxford/Civil Beat/2023)

Last session, the pushback started with written testimony from the Attorney General’s Office. Investigations by the proposed public advocate could undercut probes by other agencies, the AG’s office said, adding that the advocate’s ability to subpoena legislators would violate the state constitution.

“The power to discipline its members and determine its rules lies with the Legislature, not with any other entity,” the AG’s office said.

Harris disagrees on both points, saying concurrent investigations “happen all the time” and that it’s incorrect to say “nobody can have some regulatory or enforcement oversight over the Legislature … because our Constitution, for example, creates the Ethics Commission and gives the Ethics Commission oversight over legislators.”

“Somebody still has to complain. And that’s the hard part is people don’t want to complain.”

Sen. Karl Rhoads

He says the AG’s testimony was “probably a misreading of what that statute or that bill was proposing. And if the bill were to be introduced again, I would welcome a more full-throated conversation with the AG’s office.”

Still, Rep. David Tarnas, chair of the House Judiciary Committee, pointed to that testimony to justify his deferral of HB 725 last session, and said he saw it as a likely obstacle to reconsideration next session.

“I read the AG’s testimony on it and they had serious concerns about the constitutionality of it,” Tarnas says. “And that’s not really changed. And so I don’t know why we would want to go back and do it all over again.”

“If Mr. Harris thinks that the attorney general is not interpreting correctly, then the two of them should have a conversation,” Tarnas says. “I mean, Mr. Harris is an attorney, so they could speak the same language.”

Other Ways To Get It Done

Are the prospects any better if the measure goes to the Senate Judiciary Committee?

That panel’s chair, Sen. Karl Rhoads, says the issue with any new oversight is that “somebody still has to complain. And that’s the hard part is people don’t want to complain. Especially if you’re lobbying on a particular interest of yours, you don’t want to complain to the people who can set that policy.”

That’s a painfully frank analysis, but Harris believes aggrieved parties will be more willing to complain if they don’t have to start inside the Legislature.

Establishing an Office of the Public Advocate isn’t the only way to offer complainants a less threatening sounding board. Laws could be changed to expand the roles of the State Ethics Commission or the Office of the State Ombudsman, which currently serves as a liaison between the public and state agencies but not the Legislature.

It’s not really a criticism of our senators and representatives to say that an outside influence is needed to prod them to follow their current rules and, when necessary, enact new ones.

What isn’t working is the status quo, because legislators rarely investigate each other.

It’s true that the House formed special committees to look into a drunk driving charge against former Rep Sharon Har and before that the residency status of former Rep. Calvin Say.

But consider the fact that the House went into great detail in establishing a Select Committee on Standards of Conduct and appended it to its rules in 2008. It’s supposed to be brought into play when a representative has been accused of misconduct.

Apparently the select committee is quite selective, because 15 years later, it has never been convened.

It’s not really a criticism of our senators and representatives to say that an outside influence is needed to prod them to follow their current rules and, when necessary, enact new ones.

No public officials should be policing themselves exclusively.

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About the Author

The Sunshine Editorial Board

The members of Civil Beat’s editorial board focused on ‘Let The Sunshine In’ are Patti Epler, Chad Blair, John Hill and Richard Wiens.

Latest Comments (0)

It might work if it were run by Republicans. Democrats and their union bosses have had a stranglehold on this state for decades. Democrats watching over democrats is a joke.

Hoku · 2 months ago

It's quite unfortunate that our legislative leaders are not willing to be more transparent and accountable for their actions. Both of those chairs should just step down now. They're not acting like Democrats whatsoever.

Scotty_Poppins · 2 months ago

Yes, we need a Public Advocate, and not just for the Legislature, but for condominium owners throughout the state who are experiencing abuse and corruption within their associations (by Board members, Management Companies, and others overseeing their buildings and their money).

Greg · 2 months ago

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