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Thursday, March 31, 2022
Corruption Reforms: What They Left Out
By Andrew Walden @ 11:51 PM :: 1133 Views :: Ethics, Hawaii State Government

by Andrew Walden

Spurred by the federal arrest of two Hawaii legislators, House Speaker Scott Saiki’s sham ‘Commission to Improve Standards’ is releasing its ‘interim report’ today.

The purpose of the Commission is to dissipate reform energy in order to preserve the status quo. 

Part of the process is timing:  This interim report is timed to ensure that no new ideas can be entered into the legislative process.  The final report is set for December, 2022, by which time, insiders hope, public attention will wane because the new federal prosecutor Connors will have succeeded in preventing new corruption scandals from emerging.

As Explained: Big Win for Mafia: Biden Appoints AG Connors US Attorney

The report is designed to gradually sift effective reforms out of consideration.  Two key reform proposals are mentioned nowhere in this report:

  • End the unilateral power of a committee chair.
  • Require public votes to defer bills indefinitely, or to otherwise kill a bill.

Other proposals are left open as possibilities for the final report--they will be gradually killed off either during the preparation of the final report or by legislative inaction thereafter.

The only really effective proposal in the interim report has already been neutered by legislators:

  • SB555 SD1: Prohibits legislators and employees or persons acting on behalf of a legislator from holding any fundraiser during a regular or special session of the Legislature….

As Explained: SB555: So-Called ‘Ban’ on Fundraisers during Session has Gigantic Loophole

Here are some key excerpts from the report….

  *   *   *   *   *

INTERIM REPORT OF THE COMMISSION TO IMPROVE STANDARDS OF CONDUCT

from Commission to Improve Standards of Conduct, March 31, 2022 (excerpts)

Findings and Recommendations

The House Resolution tasks the Commission with submitting an interim report of findings and recommendations to the House of Representatives by March 31, 2022. To this end, the primary focus of the Commission has been to submit recommendations on legislation for action prior to Adjournment Sine Die of the Regular Session of 2022, which is currently scheduled for May 5, 2022. After much deliberation, the Commission voted to adopt this Interim Report and the findings and recommendations provided herein.

Several measures introduced during the Regular Session of 2022, if enacted, may improve existing laws and standards of conduct to enhance and reestablish the public's trust in its elected officials and employees. If these measures are not enacted during the current legislative session then they may be considered as a recommendation in our Final Report and for potential inclusion for bills to be introduced during the Regular Session of 2023. To streamline its focus and have the largest impact in the immediate short-term, the Commission's recommendations are primarily focused on legislation that appears to be moving through the Legislature in the Regular Session of 2022. Therefore, certain measures that did not meet a specific legislative filing deadline, but are nonetheless supported by the Commission, may be taken up as a recommendation in the Final Report if the Commission believes the measure could improve the conduct of public officials.

Further, in light of the fact that Adjournment Sine Die of the Regular Session of 2022 is quickly approaching, the Commission concedes it may not be feasible to adopt or implement these recommendations during this regular session, considering constitutional restrictions on bills, such as subject and title limitations and the three readings requirement in each chamber of the Legislature. The recent Hawaii Supreme Court decision in League of Women Voters of Honolulu and Common Cause v. State of Hawaii (SCAP-19-0000372, November 4, 2021) held, among other things, that substantive amendments to bills must be germane to the original purpose of the bill in order to meet the three readings requirement of the Hawaii State Constitution. It is under these constraints that the Commission offers its recommendations.

The recommendations are categorized as follows:

• Areas of immediate focus, covering subjects of fraud and criminal prosecution, openness and transparency, ethics oversight, and campaign reform; and

• Areas of long-term focus, consisting of topics for further consideration by the Commission for its Final Report.

For each recommendation, the Commission endorses a certain action, measure, or particular version of a measure or recommends amendments to enhance the effectiveness and timeliness of implementation of an action or measure. Please note: the following bills may have been, or will be, further amended by either the House, Senate, or Conference Committee prior to the adjournment of the Regular Session of 2022. Thus, bills and/or suggested amendments may only be relevant as of the date of this Report.

Areas of immediate focus

I. Strengthen Investigation and Prosecution of Fraud…

SB2930 SD2: Establishes and funds two new units with the Department of the Attorney General, the Special Investigation and Prosecution Unit and the Sex and Human Trafficking Unit. Of particular interest in this bill is the Special Investigation and Prosecution Unit which is tasked to: (1) Receive, gather, and analyze information; (2) Develop tactical and strategic intelligence; (3) Assist in the control of fraud, white collar crime, and public corruption; (4) Provide technical assistance and training to county law enforcement agencies in the detection and prosecution of fraud and white collar crime, and public corruption; and (5) Provide, with the Attorney General's approval, specialized personnel and technological equipment for the use of law enforcement agencies in the State with respect to fraud, white collar crime, and public corruption.

HB1423 HD1 SD1: Increases the amount of the fine from $1,000 to $5,000 for each occurrence or an amount not to exceed three times the amount of an unlawful contribution or expenditure that may be assessed against a noncandidate committee that makes only independent expenditures (i.e., Super PACs) and has received at least one contribution of more than $10,000 from any one person or has made expenditures of more than $10,000 in the aggregate in an election period. Authorizes the Campaign Spending Commission to order that the fine, or any portion of the fine, assessed against a noncandidate committee be paid from the personal funds of the officers of the noncandidate committee.

SB212 SD1: Increases the amount of fines that may be assessed against a noncandidate committee for violations of organizational report requirements and advertisement disclaimer requirements. Increases the fines for noncandidate committees making only independent expenditures (i.e., Super PACs) for advertisement disclaimer violations.

SB665 SD1 HD1: Strengthens campaign finance reform by allowing the Campaign Spending Commission to refer a complaint to the Attorney General or county prosecutor for criminal prosecution in addition to assessing administrative fines. Creates a class C felony for intentionally providing certain false information relating to the payor of a campaign advertisement. Amends the applicable fines related to false advertisements. Increases the disqualification period for holding elective public office from 4 years to 10 years for anyone convicted for a crime involving campaign finance law

II. Give Openness and Transparency a Boost …

Post Legislator Allowance Expenditures Online: The Commission recommends the House of Representatives and Senate consider internal administrative and policy modifications concerning legislative allowance expense reimbursements. To increase transparency and accountability, the Commission recommends each chamber of the Legislature post all legislative allowance expense reimbursements online….

SB2143 SD2 HD1: Defines "board packet" and requires each state board to make such packets publicly available at least 48 hours in advance of the board meeting if the board uses such packets.

SB3252 SD2 HD1: Imposes a cap on the costs charged for the reproduction of certain government records and for searching, reviewing, and segregating digital records. Waives the cost of duplication of government records provided in an electronic format. Waives fees when the public interest is served by a digital record disclosure….

SB3172 SD1 HD1: Requires any electronic audio or visual recordings of board meetings to be maintained as a public record, while still requiring written minutes….

III. Serve the Public Interest with Ethical Awareness and Oversight…

HB1475 HD1: Requires all state employees to complete ethics training either live or online within 90 days of the start of employment and at least once every four years thereafter. Requires existing state legislators and employees who have not received ethics training within the immediately preceding three years to complete live or online ethics training within 12 months of the Act's effective date and then again at least once every four years thereafter….

HB2069 HD2: Creates procedures for the custody, inventory, and care of protocol gifts received by the State. Requires the creation of a publicly available written record and ongoing maintenance of the gift….

IV. Reduce the Power of Money in Politics…

SB555 SD1: Prohibits legislators and employees or persons acting on behalf of a legislator from holding any fundraiser during a regular or special session of the Legislature….

HB1888 HD2: Restores the threshold amount of aggregated expenditures that requires disclosures of electioneering communications from $1,000 to $2,000. Modifies the disclosure date of electioneering communications to coincide with the distribution of the electioneering communication. Restores the requirement that subsequent distributions of electioneering communications be reported once the $2,000 threshold has been met. Exempts news stories or editorials published by electronic means from being considered electioneering communications. Repeals the actual expenditures exception from the definition of electioneering communications….

HB1426 HD1 SD1: Provides that a person waives the right to a contested case hearing if the person fails to request a contested case hearing within 20 days of receipt of the Commission's preliminary determination. Gives the Campaign Spending Commission the ability to have their order confirmed as an enforceable judgment of the Circuit Court in addition to contempt proceedings.

HB1427 HD1: Emphasizes that candidates are not required to file preliminary general reports if they are either unsuccessful or are elected to office in the primary election because such candidates are not on the ballot. Clarifies the aggregating contribution and expenditure amounts that determine when a committee needs to only file the final election period report.

SB2043 HD1: Repeals references in the campaign spending law that have been previously repealed in 2018….

Areas of Long-Term Focus

V. Other topics to be considered by the Commission for its Final Report

In contemplation of its Final Report to be submitted to the House of Representatives by December 1, 2022, the Commission is exploring long-term areas of concern to focus on for its Final Report. The following non-exhaustive list of topics are mere suggestions at the time of publishing this Interim Report and are subject to later refinement. The preliminary list of topics that the Commission intends to analyze further and seek feedback on before addressing its recommendations in its Final Report are to include, but not be limited to, the following

• Increased Criminal Penalties and Investigative Tools for State and County Law Enforcement Agencies to Address Fraud and Public Corruption

• Public Funding of Elections

• Term Limits

• Election Reform, including Ranked Choice Voting and Top Two Primaries

• Campaign Contribution and Expenditure Restrictions

• Voter Education, including a voter pamphlet with a link to campaign spending information about candidates and candidate committees

• Lobbyist Reforms, including requiring and publishing financial and gift disclosures, documenting and publishing lobbyists' meetings with legislators, ethics training for lobbyists, creation of lobbyist visitor logs, adding a lobbyist's passport-type photo to their registration, disclosure of specific bills an individual lobbyist supported or opposed

• Senate and House Rules, including disclosure of the individual or entity that requests a legislator to introduce a bill "by request"

• Legislative Grants-In-Aid Framework and Process

• Constitutional Amendments

• Reporting and Disclosure Exemptions

• Gift Reporting Requirements

• Expansion of Conflict of Interest Provisions

• Establishment of Baseline Budget Guidelines for the following state agencies: Ethics Commission, Campaign Spending Commission, Auditor, and Ombudsman

• Legislation from the Regular Session of 2022 that did not meet the criteria for inclusion in the Interim Report

read … Full Report

---30---  

Big Q: What do you think of the interim report by a new state commission, which recommended ways to stop corruption in government?

SA: Predictably, Borreca Tries to Convince Readers this Commission is the Real Deal 

HPR: Legislative panel promotes steps to improve conduct in government amid cesspool corruption

SA: Hawaii legislative report calls for ‘better, honest’ government or something

CB: Open Government Commission Releases Recommendations On Legislative Bills  

SA Editorial: Tough ethics rules for public officials

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