Bill Text: HI HB31 | 2017 | Regular Session | Introduced

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Bill Title: Relating To Governmental Standards Of Conduct.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2017-01-23 - Referred to LAB, JUD, referral sheet 1 [HB31 Detail]

Download: Hawaii-2017-HB31-Introduced.html

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HOUSE OF REPRESENTATIVES	H.B. NO.	31
TWENTY-NINTH LEGISLATURE, 2017
STATE OF HAWAII

A BILL FOR AN ACT

 

 

Relating to Governmental Standards of Conduct.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     SECTION 1.  The legislature finds that the state ethics commission administers and enforces governmental ethics laws, issues advisory opinions, educates public officials and employees on matters relating to ethics in government, and investigates charges of alleged ethical violations.  Pursuant to section 84-31(a)(2), Hawaii Revised Statutes, the commission, upon request, issues advisory opinions on whether the facts and circumstances of a particular case constitute or will constitute a violation of the state ethics code.  Occasionally, however, these advisory opinions appear to be based upon subjective and overly broad applications of the state ethics code that can be detrimental to the public.  For example, in its Advisory Opinion No. 2015-1, the commission found ethical violations in the longstanding practice of public school teachers receiving free travel and other benefits from tour companies when chaperoning students on out-of-state educational trips.  The commission found that when public school teachers planning these excursions select the tour company, design and organize the itinerary with the tour company, decide which teachers will travel with the students, and promote the trip to the students and their parents using materials prepared by the tour company, the teachers help generate substantial revenue for tour companies and are, essentially, "rewarded" for their efforts in the form of free travel and other benefits from the tour companies they selected and promoted.  The commission determined that the dual role as teacher and tour company representative places public school teachers in a conflict of interest under the state ethics code and also raises concerns under the gifts law and the fair treatment law.

     The gifts law under section 84-11, Hawaii Revised Statutes, prohibits an employee from soliciting, accepting, or receiving any gift, including travel, under circumstances where it can be reasonably be inferred that the gift is intended to influence the employee in performing the employee's official duties or is intended to reward the employee for official action.  The state ethics commission found that because the gifts law is based upon an appearance of impropriety, it is immaterial whether the employee is actually influenced by the gift or whether the donor actually intended to influence the employee.  The commission stated that if it appears to a reasonable person that the gift is given to influence or reward the employee for official action, the employee is prohibited from accepting the gift.  Under that standard, the commission found it reasonable to infer that the free travel and other benefits offered to public school teachers by a tour company were intended as both an incentive for the teachers to promote the trip to students and parents and a reward for the teachers' efforts in generating revenue for the tour company.  The commission therefore concluded that the free travel and other benefits were prohibited gifts.

     The legislature finds that the state ethics commission's advisory opinion on public school teachers accepting free travel from tour companies may have the unintended effect of depriving students of valuable learning opportunities outside of the classroom, by making it difficult for teachers to afford activities that are largely contingent upon their participation.  In particular, the treatment of free travel from tour companies as prohibited gifts does not provide an equitable response to the challenges of requiring public school teachers to pay for their own travel on work-related trips in the absence of available funding from the department of education.  Public school teachers dedicate personal time and resources to coordinate the trips, chaperone students, and plan curriculum, oftentimes supervising students in other cities and countries for entire days and for the duration of the trip.  Public school teachers participating in student educational trips assume additional work responsibilities that exceed normal duties, and teachers often sacrifice vacation time with their own families to accompany their students on the trips.  Given these considerations, the legislature believes that the state ethics code should be more strictly interpreted and applied to avoid unfair restrictions placed upon student educational trips and other activities that benefit the public.

     The legislature further finds that the ability of the state ethics commission to provide oversight and guidance on matters of governmental ethics would be greatly enhanced if commission members had a better understanding of the roles and responsibilities of public officials and employees who are subject to the commission's decisions and advice.  Currently, commission members are appointed by the governor from a panel of ten persons nominated by the judicial council.  The legislature believes that increased diversity among the commission's membership, through appointments to the commission made by multiple branches of government, would significantly benefit the public.

     Accordingly, the purpose of this Act is to clarify and enhance the application of the state ethics code by:

     (1)  Repealing the standards:

         (A)  Requiring a liberal interpretation of the state ethics code; and

         (B)  Allowing determinations of gifts law violations based upon an inference of impropriety, to instead require a finding of actual intent to influence the recipient of the gift;

     (2)  Requiring that advisory opinions rendered by the commission be approved and signed by a majority of the commission members; and

     (3)  Requiring that two of the five members of the state ethics commission be appointed by each chamber of the legislature.

     SECTION 2.  Section 84-11, Hawaii Revised Statutes, is amended to read as follows:

     "§84-11  Gifts.  No legislator or employee shall solicit, accept, or receive, directly or indirectly, any gift, whether in the form of money, service, loan, travel, entertainment, hospitality, thing, or promise, or in any other form, under circumstances in which [it can reasonably be inferred that] the gift is intended to influence the legislator or employee in the performance of the legislator's or employee's official duties or is intended as a reward for any official action on the legislator's or employee's part."

     SECTION 3.  Section 84-21, Hawaii Revised Statutes, is amended to read as follows:

     "§84-21  State ethics commission established; composition.  (a)  There is established within the office of the auditor for administrative purposes only a commission to be known as the state ethics commission.  The commission shall consist of five members appointed [by the governor from a panel of ten persons nominated by the judicial council.] as follows:

     (1)  Three members appointed by the governor from a list of six persons nominated by the judicial council;

     (2)  One member appointed by the president of the senate from a list of two persons nominated by the judicial council; and

     (3)  One member appointed by the speaker of the house of representatives from a list of two persons nominated by the judicial council;

provided that no list of nominees submitted pursuant to this subsection shall include any nominee that is currently pending selection from any other list of nominees submitted pursuant to this subsection.

     Each member of the commission shall be a citizen of the United States and a resident of the State.  Members of the commission shall hold no other public office.

     (b)  The chairperson of the commission shall be elected by the majority of the members of the commission.  The term of each member of the commission shall be for four years.  No person shall be appointed consecutively to more than two terms as a member of the commission.  A vacancy on the commission shall be filled for the remainder of the unexpired term by the respective appointing authority in the same manner as the original appointment[, except that the judicial council shall nominate for gubernatorial appointment two persons for a vacancy].

     (c)  No member of the commission shall hold office for more than one hundred and twenty days after the expiration of the member's term.  If the [governor] respective appointing authority fails to appoint a person to a vacant office within sixty days after receipt of the list of nominees from the judicial council, the council shall select a person from its list of nominees to fill the vacant office, notwithstanding subsection (b) and section 26-34 to the contrary.

     (d)  The [governor] respective appointing authority may remove or suspend any member of the commission appointed by the respective appointing authority upon the filing of a written finding with the commission, and upon service of a copy of the written finding on the member to be removed or suspended."

     SECTION 4.  Section 84-31, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  The ethics commission shall have the following powers and duties:

     (1)  It shall prescribe forms for the disclosures required by article XIV of the Hawaii constitution and section 84-17 and the gifts disclosure statements required by section 84-11.5 and shall establish orderly procedures for implementing the requirements of those provisions;

     (2)  It shall render advisory opinions upon the request of any legislator, employee, or delegate to the constitutional convention, or person formerly holding such office or employment as to whether the facts and circumstances of a particular case constitute or will constitute a violation of the code of ethics[.]; provided that no advisory opinion shall be rendered unless approved and signed by three or more members of the commission.  If no advisory opinion is rendered within thirty days after the request is filed with the commission, it shall be deemed that an advisory opinion was rendered and that the facts and circumstances of that particular case do not constitute a violation of the code of ethics.  The opinion rendered or deemed rendered, until amended or revoked, shall be binding on the commission in any subsequent charges concerning the legislator, employee, or delegate to the constitutional convention, or person formerly holding such office or employment, who sought the opinion and acted in reliance on it in good faith, unless material facts were omitted or misstated by such persons in the request for an advisory opinion;

     (3)  It shall initiate, receive, and consider charges concerning alleged violation of this chapter, initiate or make investigation, and hold hearings;

     (4)  It may subpoena witnesses, administer oaths, and take testimony relating to matters before the commission and require the production for examination of any books or papers relative to any matter under investigation or in question before the commission.  Before the commission shall exercise any of the powers authorized in this section with respect to any investigation or hearings it shall by formal resolution, supported by a vote of three or more members of the commission, define the nature and scope of its inquiry;

     (5)  It may, from time to time adopt, amend, and repeal any rules, not inconsistent with this chapter, that in the judgment of the commission seem appropriate for the carrying out of this chapter and for the efficient administration thereof, including every matter or thing required to be done or which may be done with the approval or consent or by order or under the direction or supervision of or as prescribed by the commission.  The rules, when adopted as provided in chapter 91, shall have the force and effect of law;

     (6)  It shall have jurisdiction for purposes of investigation and taking appropriate action on alleged violations of this chapter in all proceedings commenced within six years of an alleged violation of this chapter by a legislator or employee or former legislator or employee.  A proceeding shall be deemed commenced by the filing of a charge with the commission or by the signing of a charge by three or more members of the commission.  Nothing herein shall bar proceedings against a person who by fraud or other device, prevents discovery of a violation of this chapter;

     (7)  It shall distribute its publications without cost to the public and shall initiate and maintain programs with the purpose of educating the citizenry and all legislators, delegates to the constitutional convention, and employees on matters of ethics in government employment; and

     (8)  It shall administer any code of ethics adopted by a state constitutional convention, subject to the procedural requirements of this part and any rules adopted thereunder."

     SECTION 5.  Section 84-1, Hawaii Revised Statutes, is repealed.

     ["§84-1  Construction.  This chapter shall be liberally construed to promote high standards of ethical conduct in state government."]

     SECTION 6.  Notwithstanding any other law to the contrary, the incumbent members of the state ethics commission serving on the effective date of this Act shall continue to serve until the expiration of their respective terms, except that the two incumbent members whose terms expire the earliest following the effective date of this Act shall be replaced in accordance with this section.  No later than sixty days after the effective date of this Act, the judicial council shall separately submit to the president of the senate and the speaker of the house of representatives, a list of two nominees for appointment to the commission; provided that no nominee shall be included on both lists.  If the respective appointing authority fails to make an appointment pursuant to this section within sixty days of receiving the list of nominees from the judicial council, the judicial council shall make the appointment in accordance with section 84-21(c), Hawaii Revised Statutes.  Upon and for each appointment made pursuant to this section, the incumbent member of the commission whose term at that time expires the earliest following the effective date of this Act shall be immediately discharged from office and the newly appointed member shall begin the member's service.  After all commission appointments required by this section have been accomplished, every appointment to the commission shall be made in accordance with section 3 of this Act.

     SECTION 7.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 8.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	_____________________________

 

 

Report Title:

State Ethics Commission; State Ethics Code; Gifts Law

 

Description:

Repeals the standards (1) requiring a liberal interpretation of the state ethics code; and (2) allowing determinations of gifts law violations under the state ethics code based upon an inference of impropriety, to instead require a finding of actual intent to influence the recipient of the gift.  Requires state ethics commission advisory opinions to be approved and signed by a majority of the commission members.  Requires that 2 of the 5 members of the state ethics commission be appointed by each chamber of the legislature.

 

 

 

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