When Hawaii Reps Ask, Say Says ‘No Conflict’

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Editor’s note: This is part of a Civil Beat series exploring conflicts of interest in the Hawaii Legislature. Read the related stories.

Hawaii lawmakers stand up and say there may be a problem.

They’re not sure if they should vote — one has a grandson at the Medical School, another’s law firm is handling a related case, a third has a Peruvian wife.

“No conflict,” Speaker Calvin Say tells them.

Again and again this session, the message from Say to his members was: No problem.

Civil Beat analyzed all 105 times a representative stood up on the floor of the Hawaii House of Representatives to ask for a ruling on a possible conflict of interest through the 2011 session’s first 51 days.1

Ninety-seven times they were met with a “no conflict” ruling from either Say or Vice Speaker Joey Manahan, who presides over the chamber when Say cannot.

Say found a conflict only in the most obvious examples: seven cases involving a lawmaker who had already been appointed to the quasi-judicial Public Utilities Commission and an eighth where an attorney specifically asked to be excused from voting because his partner lobbied the bill in question.

His counterpart in the Senate, Shan Tsutsui, faced five conflict questions. Just one senator was excused from voting due to a conflict of interest this session.

Say: Excluding Lawmakers From Voting Would be Unfair

Civil Beat began its “No Conflict” series by exploring the case of Maui Rep. Joe Souki, who has a $24,000-a-year side job as a lobbyist for the chemical industry but was allowed to vote on a state fee for single-use checkout bags opposed by his client.

The speaker defended the decision, saying, “Just because he represents that company does not mean he cannot vote up or down on the measure.”

The rationale Say applied to Souki’s disclosure is the same he used to make many of his other decisions. He told Civil Beat that he’s generally inclined to allow members to vote because to exclude them would be unfair to their constituents. He said representatives have a solemn duty to vote on measures that come before the Legislature.

“Each of us have been elected by our voters and constituents to represent them,” Say said. “I don’t see it as a conflict because by the Constitution2, you are supposed to vote on every issue.”

Say pointed to Sections 60.5 and 60.6 of the [pdf], which require House members to disclose conflicts of interest or ask for a ruling if they’re unsure. The rules also specify that instances where lawmakers or their families are “part of a class of people affected by the legislation” do not qualify as conflicts.

“In most cases, I would not recuse (a lawmaker) because there are a class of individuals that are being impacted, not just himself or herself,” Say said.

“Basically, when we talk about conflicts of interest, disclosure is very important in the House,” he said. “That’s what I try to instill in the members: If you think you’re going to have a potential conflict, ask for a ruling.”

Speaker Has Had Own Conflict Questions

Say has found himself in the middle of some conflict of interest debates of his own.

When the Legislature convened in special session a few years ago to clear the way for the Hawaii Superferry, Say disclosed that his son worked in marketing for the company. Say was allowed to vote because his son was deemed to be part of a class — Superferry employees. Later, the law the Legislature passed was found to be unconstitutional because it had only one private company in mind.

In 2009, Say introduced a bill that would have forced a mainland company to provide better leases to a number of Mapunapuna tenants. One of those tenants was a company that paid Say $1,000 per month to serve as an officer, though he said he didn’t deal with its day-to-day operation. In a lawsuit challenging the law, the mainland company .

In defending his role in the bill, Say used the argument that provides the basis for nearly all his other rulings: He was among a large class of people who would be impacted by the legislation.

Five times during the 2011 session, Say stepped down from his speaker’s podium and stood up to disclose a potential conflict. Five times, he was told by the House’s presiding officer that he had no conflict and that he could vote.

When Should Representatives Be Excused?

Asked to come up with a scenario that he would consider to be a conflict of interest and prevent a lawmaker from voting, Say mentioned the real case of a representative whose family was among roughly a dozen to own a slip on a Kaneohe Bay pier that the state was considering fixing. But asked where the line is and what counts as a “class” and what doesn’t, Say said, “I don’t have any number in mind.”

“In most cases, I’ll let them vote because most of the legislation has to be broad rather than narrow. And if it’s narrow, it may be found unconstitutional,” he said.

In the eight times House leadership excused a member from voting this session due to conflict of interest concerns, there was little choice in the matter.

Seven of those eight cases featured now-former Kauai Rep. Mina Morita after she was appointed to the Public Utilities Commission but before she was confirmed by the Senate and resigned from her legislative seat. Morita knew she’d soon be in a position where she might be asked to rule on the same issues before her in the Legislature.

The eighth case was when Rep. Gilbert Keith-Agaran specifically asked to be excused from voting on , which would have provided tax cuts for the film industry.

“Mr. Speaker. On Standing Committee Report 502, I’d like to be excused from voting on this measure. My law partner apparently is lobbying on this measure,” Keith-Agaran stated on the floor, according to the [pdf]. “I’m not sure if I will receive anything from what he is paid, but in an abundance of caution, I like to be excused.”

The response: “So ordered. You are excused.”

When the same issue came up two months later, however, the disposition from House leadership was the opposite.

When the House voted on on April 12, Keith-Agaran again disclosed that “One of my law partners has been lobbying on this bill.”

This time, he didn’t ask to be excused, and wasn’t. Keith-Agaran was instead told he had “no conflict” and therefore should vote, according to [pdf].

In most cases, Say or Manahan made their ruling without asking follow-up questions or explaining their decision on the House floor. For example, Say said he hadn’t reviewed the [pdf] that would have revealed the details of Souki’s side job as a Maui chemical industry lobbyist.

Lawmakers Who Raised Most Conflict Questions

Say’s quick trigger finger may be due to his experience with the matter and knowledge of different lawmakers’ potential conflicts. Some issues come up time and time again.

One bill illustrates the point. Four lawmakers stood up to disclose their connections to the Civil Air Patrol Auxiliary, a nonprofit group affiliated with the U.S. Air Force that was seeking funding via an . After ruling no conflict for the fourth consecutive legislator, the presiding officer took action to get the floor session back on track.

“If there are any other members who would like to ask for a ruling on a potential conflict, there is no conflict,” the [pdf] reads.

One of the four lawmakers was Republican Kymberly Pine. She made 12 disclosures this year, many related to her part-time work3 providing services to homeless veterans. All 12 times, she was told she could vote.

But her 12 weren’t the most. House Majority Leader Blake Oshiro led the way in requests for a ruling; 17 times he was told he had no conflict. Most of his disclosures included the phrase “my law firm” and a reference to one of the many cases handled by colleagues at Alston Hunt Floyd & Ing.

Oshiro said because he’s not a partner at his firm4, he doesn’t see any personal financial gain from any votes that are taken at the Legislature. He also said he doesn’t spend much time during the legislative session at the firm and generally doesn’t talk to colleagues or supervisors about issues that he’s going to vote on — at least not until after the fact.

“In my 11 years, I’ve been excused from a vote twice, and that was because the legislation that was before us was directly dealing with the case that I was working on,” he said. “There will always be the potential for multiple interests and the potential for a conflict, because by nature we are a part-time legislature. Everyone to some degree … has something that will call something into question.”

Oshiro said the most important thing is disclosing the potential conflict so that House leadership, colleagues and the public can make a decision. He pointed to , which he said discourages legislators from sitting out votes “because we are then disenfranchising our entire constituency.”

The 600-plus-page how-to guide is used by most of the nation’s state legislatures, but it’s not clear how Hawaii compares to other states when it comes to conflicts of interest.

The National Conference of State Legislatures compares , but the listing for Hawaii references of the Hawaii Revised Statutes. Part of what’s known as the state’s Ethics Code, that section largely applies to state employees but not to state legislators.

And though the NCSL sells copies of Mason’s Manual, its comparison chart does not mention the book or the rules of the Hawaii House and Hawaii Senate.

Test of Conflict is What a ‘Reasonable’ Person Would Think

The House rules cited by Say define conflict of interest, but they also caution lawmakers to consider what a “reasonable” person would think.

House Rule 60.4 tells members that they should, to the greatest extent reasonably possible, “Consider at all times whether their conduct would create in reasonable minds the perception that their ability to carry out legislative responsibilities with integrity and independence is either questionable or impaired.”

But that standard isn’t necessarily the overriding factor weighed by leaders in the Hawaii House in determining whether their colleagues can vote on matters in which they have a personal interest, as can be seen by how Say explained his voting on the 2009 bill that benefitted a company that paid him a monthly salary.

“Reasonable people may think of it as a conflict,” Say told Civil Beat. “But I don’t think of it as a conflict.”

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