Leing (sic) Down a Gift Law

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 href="http://www.civilbeat.com/articles/2013/07/01/19418-can-too-much-aloha-b…; target="”_blank”">a
Honolulu <i>Civil Beat</i> article yesterday</a>, "Can Too Much Aloha Be
a Bad Thing? Ask Hawaii's Ethics Commission."<br>
<br>
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.<br>
<br>
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. <br>
<br>

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 <span class="mw-redirect">hot dogs</span>, curried chicken, kalua pig,
and even ube (purple yam) for vegetarians.<br>
<br>
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?</span><br>
<br>
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.<br>
<br>
But what matters to Hawaiian legislators is that Les Kondo, the EC executive director hired in 2011, started getting tough on gifts.
In <a href="hawaii.gov/ethics/2012-legislation/testimony2012/HB2457-JUD.pdf" target="”_blank”">testimony
to the state legislature in February 2012</a>, 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.<br>
<br>
Then he said what is too rarely said:  "The State Ethics Code
represents the legislature’s clear and unambiguous determination as
to the <i>minimum</i> 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.<br>
<br>
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."<br>
<br>
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.”<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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