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Leing (sic) Down a Gift Law
Tuesday, July 2nd, 2013
Robert Wechsler
In Hawaii, "Aloha" is not just a greeting. It also is a way of
treating people, of thanking them. In other words, it often involves
a gift. That explains the headline of a
Honolulu Civil Beat article yesterday, "Can Too Much Aloha Be
a Bad Thing? Ask Hawaii's Ethics Commission."
As in so many state and local governments, elected officials and ethics commissions rarely see eye to eye about limits on gifts. But in Hawaii some of the gifts are more colorful, and the explanations for gift bans are better, as well. But since the state's gift rule is based on whether one can “reasonably infer” that a gift is intended to “influence” or “reward" an official, what is a gift is not very clear.
Therefore, the ethics commission has to keep making interpretations. For example, the EC has determined that leis are acceptable as gifts, even though they can be expensive if they're made of real flowers.
One EC member used the example of manapua, which are traditionally white buns with a dark pink-colored diced pork filling, usually steamed. According to Wikipedia, the filling's dark pink color comes from marinating the pork with a small amount of saltpeter prior to slow roasting. Manapua now come filled with hot dogs, curried chicken, kalua pig, and even ube (purple yam) for vegetarians.
The EC member said that it doesn’t make sense for a contractor to be able to give manapua to a small agency, but not to a larger department because the cumulative value would be too high. A dozen manapua for $20, that's OK. But 100 manapua for $150, no?
Gift provisions should not be complicated recipes, based on half-baked ideas and with all sorts of fillings and local interpretations. This EC member recognizes that money is not what matters. What matters is the relationship. If a contractor offers a gift, it should be refused. Period.
But what matters to Hawaiian legislators is that Les Kondo, the EC executive director hired in 2011, started getting tough on gifts. In testimony to the state legislature in February 2012, relating to a bill to add an exception to the gift provision for nonprofit events, Kondo said the right things. First, he went beyond the gift provision to note that the ethics code prohibits unwarranted benefits or privileges as a result of an official's position.
Then he said what is too rarely said: "The State Ethics Code represents the legislature’s clear and unambiguous determination as to the minimum standards of conduct required to achieve that purpose." (the emphasis is Kondo's) In other words, if there is any doubt about intent to influence or that a gift is unwarranted and due to the official's position, the gift should be refused. There does not have to be proof of intent.
Then Kondo dealt with the gift exception being discussed. He explained why gifts from nonprofits are often unacceptable. "[M]any charitable, non-profit organizations, including 501(c)(3) non-profit organizations, lobby the legislature. Those organizations lobby for and against substantive bills that may result in significant changes to State policy (e.g. civil unions). Charities compete with each other and with for-profit organizations for state contracts, state grants-in-aid and other state funding, benefits, and assistance."
There is a $25 per-gift limit. One state senator feels this is problematic. In fact, some legislators say it’s too low, while others say it’s too high. The senator told the reporter, “Once you open the door and allow gifts, then it becomes where do you draw the line and being consistent.”
If they can't accept most gifts that are offered, what legislators want most of all is clarity, so they know what gifts to accept and what gifts to turn down, and so they don't get caught in a scandal. Of course, they can always ask for advice. But if they choose to make the determination themselves, it should be based on what the EC member said: the relationship, not the amount and not whether the giver is for-profit or non-profit. Officials should not take a gift from anyone seeking a special benefit from their government, nor should they take a gift from someone they have helped. Aloha should take the form of words and a smile.
Robert Wechsler
Director of Research-Retired, City Ethics
---
As in so many state and local governments, elected officials and ethics commissions rarely see eye to eye about limits on gifts. But in Hawaii some of the gifts are more colorful, and the explanations for gift bans are better, as well. But since the state's gift rule is based on whether one can “reasonably infer” that a gift is intended to “influence” or “reward" an official, what is a gift is not very clear.
Therefore, the ethics commission has to keep making interpretations. For example, the EC has determined that leis are acceptable as gifts, even though they can be expensive if they're made of real flowers.
One EC member used the example of manapua, which are traditionally white buns with a dark pink-colored diced pork filling, usually steamed. According to Wikipedia, the filling's dark pink color comes from marinating the pork with a small amount of saltpeter prior to slow roasting. Manapua now come filled with hot dogs, curried chicken, kalua pig, and even ube (purple yam) for vegetarians.
The EC member said that it doesn’t make sense for a contractor to be able to give manapua to a small agency, but not to a larger department because the cumulative value would be too high. A dozen manapua for $20, that's OK. But 100 manapua for $150, no?
Gift provisions should not be complicated recipes, based on half-baked ideas and with all sorts of fillings and local interpretations. This EC member recognizes that money is not what matters. What matters is the relationship. If a contractor offers a gift, it should be refused. Period.
But what matters to Hawaiian legislators is that Les Kondo, the EC executive director hired in 2011, started getting tough on gifts. In testimony to the state legislature in February 2012, relating to a bill to add an exception to the gift provision for nonprofit events, Kondo said the right things. First, he went beyond the gift provision to note that the ethics code prohibits unwarranted benefits or privileges as a result of an official's position.
Then he said what is too rarely said: "The State Ethics Code represents the legislature’s clear and unambiguous determination as to the minimum standards of conduct required to achieve that purpose." (the emphasis is Kondo's) In other words, if there is any doubt about intent to influence or that a gift is unwarranted and due to the official's position, the gift should be refused. There does not have to be proof of intent.
Then Kondo dealt with the gift exception being discussed. He explained why gifts from nonprofits are often unacceptable. "[M]any charitable, non-profit organizations, including 501(c)(3) non-profit organizations, lobby the legislature. Those organizations lobby for and against substantive bills that may result in significant changes to State policy (e.g. civil unions). Charities compete with each other and with for-profit organizations for state contracts, state grants-in-aid and other state funding, benefits, and assistance."
There is a $25 per-gift limit. One state senator feels this is problematic. In fact, some legislators say it’s too low, while others say it’s too high. The senator told the reporter, “Once you open the door and allow gifts, then it becomes where do you draw the line and being consistent.”
If they can't accept most gifts that are offered, what legislators want most of all is clarity, so they know what gifts to accept and what gifts to turn down, and so they don't get caught in a scandal. Of course, they can always ask for advice. But if they choose to make the determination themselves, it should be based on what the EC member said: the relationship, not the amount and not whether the giver is for-profit or non-profit. Officials should not take a gift from anyone seeking a special benefit from their government, nor should they take a gift from someone they have helped. Aloha should take the form of words and a smile.
Robert Wechsler
Director of Research-Retired, City Ethics
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