WASHINGTON — State lawmakers and lobbyists who are frustrated with the Hawaii State Ethics Commission’s approach to gifts might really hate working in Iowa.

In Hawaii, lawmakers are advised they can accept meals worth under $25. In Iowa, the cut-off is $3. Some other states have even stricter limitations on gifts and meals.

“They’re called ‘zero tolerance’ or ‘no cup of coffee’ states,” said Natalie O’Donnell Wood, senior policy specialist¹ at the Center for Ethics in Government at the National Conference of State Legislatures (NCSL). “Iowa has a $3 dollar per day allowance for gifts of food and beverage. It’s very, very low. But it is a monetary threshold state. If not for that, it would be pretty much zero tolerance. California has a limit of $10 dollars per day.”

The National Conference of State Legislatures’ state-by-state database of ethics laws demonstrates a wide variety in ethics approaches nationwide. Most laws begin with the intent to discourage any gifts offered to state employees as a way to influence or reward them.

What that means has driven a wedge between Hawaii lawmakers and the state’s ethics chief over the past year. Most recently, Hawaii State Ethics Commission Executive Director Les Kondo caused a stir when he told lawmakers that they were not permitted to attend a pau hana culinary event called “The Taste of Ag,” sponsored by the Hawaii Crop Improvement Association and the Hawaii Farm Bureau Federation. The ethics commission later decided that lawmakers could pay $50 apiece to attend the event, which was not open to the public.

“People are very frustrated with the commission’s position on certain types of events,  especially high-end events, when it doesn’t allow the state employee to accept the invitation,” Kondo said. “It just shows to me that we continue to have to try to better educate the state employees including the legislators as to how the commission interprets the statute.”

One thing is clear: Hawaii state employees have far more leeway than some of their counterparts in other states — but Hawaii isn’t the most laid back state either.

How Hawaii Stacks Up

Wisconsin, Massachusetts and South Carolina are all zero-tolerance states, among others, according to NCSL. In Florida, gifts from lobbyists to lawmakers would be outright banned but for one exception: Lawmakers can accept flower arrangements on the opening day of the legislative session. In Hawaii, lei are allowed because they’re considered “gifts of aloha,” which are permitted.

The majority of states have monetary thresholds — so they’re only allowed to accept gifts up to a certain aggregate value per day or year.

“But there are tons of exemptions to these laws, and nuances that makes each one unique,” Wood said. “It can be difficult to categorize them.”

In Hawaii, there’s no monetary threshold on gifts. State employees including lawmakers “can’t accept any gift if there’s a reasonable inference that it’s offered to influence or reward,” Kondo said.

If a state employee accepts a gift worth more than $200, he or she is required to report it (but just because a gift is worth less than $200 doesn’t necessarily mean it’s OK to accept it). The $25 cap on accepting meals was a guideline established by the commission.

“People like to do business over meals,” Kondo told Civil Beat. “Trying to recognize that, the commission has looked at that $25 as the guidepost. With any gift, we’re asking who’s the offer from? Who’s the donor? What’s the value? And if it’s over $25 for a meal, what’s the state benefit?”

There are some exceptions to the $25 limit, Kondo explained. A recent example was a two-day conference on charter schools earlier this month.

“They were taking up substantive issues but they also provided lunches, and the cost of the registration was $250,” Kondo said. “That’s an event that the commission said ‘no problem,’ because there’s a state benefit to participating.”

The state benefit of the recent “Taste of Ag” pau hana event, Kondo said, was less clear. Having state employees pay to attend seemed like a “reasonable” solution to Bob Stern, who co-authored several ethics laws including campaign reform proposals in California. Stern is the former president of the Center for Governmental Studies in Los Angeles, and is known in political circles as “the godfather of ethics reform.”

He said that even when lawmakers pay to attend an event, lobbyists are still sometimes ultimately footing the bill.

“The question is: How will they pay for it?” Stern said. “They’ll probably pay for it out of campaign funds, and the lobbyists donate to (those funds), so really it’s taken care of (by the lobbyists).”

There’s also the question of how such an event benefits the state. In a commentary published on Civil Beat on Jan. 19, “Taste of Ag” planners complained that Kondo was discouraging lawmakers from learning about the agriculture industry.

But Stern questioned why an educational event for lawmakers looked so much like a social function. “Taste of Ag” was planned to have an open bar and high-end culinary creations like veal cheek, abalone, pork belly with torched brie cheese and other offerings.

“The idea of lawmakers being educated and talking to people and attending events is great, but it’s a problem with the open bar because a reception is not the same thing as an event,” Stern said. “The big problem is what happens at these events and what are the perks of attending? Is it a free golf round? A concert? A fancy meal? You schmooze and talk to people. Well, you can schmooze in your office without the open-bar lubrication.”

Ethics and Jaywalking

Stern and other ethics scholars agree that banning all gifts goes too far. Ben Bycel, the founding director of the Los Angeles Ethics Commission, said that focusing on the small stuff means that the big stuff gets ignored. He equates the zero-tolerance attitude to a police department that ignores murders and enforces jaywalking instead.

“The purists love it but if you are a practical ethicist, enforcing that can drive you crazy,” Bycel said. “If you spend your time going after bagels and coffee, you’re wasting your time. In an odd way, those who you should be going after love the fact that you’re burdened with your ‘jaywalking’ problems.”

Stern says that “disclosure of everything,” no matter what the value, is critical. The idea is that being forced to disclose gifts will change behaviors. Bycel said that the other key is demonstrating to public employees that the Ethics Commission is serious about the law.

“We made clear we would not be intimidated,” Bycel said. “You’re met with shock in the lobbyist community, and that shock is then met with push back onto the ethics commission. The ethics commission should not be a mad dog, it shouldn’t be a lap dog, it should be a watch dog. And there’s a big difference between those things. It’s very difficult.”

The push back, Bycel says, often comes in the form of an excuse from lawmakers and lobbyists.

“They say, ‘we’re being over-regulated,’ and ‘you’re creating the environment for people to mistrust politicians,” Bycel said. “The message was that if my mother violated the law, I would clearly prosecute her — and If my worst enemy didn’t, I wouldn’t have anything to do with it. It’s got to be the rule of law.”

But the rule of any law is subject to interpretation. In their commentary for Civil Beat, “Taste of Ag” planners complained that commission chief Kondo’s subjectivity in interpreting the law amounted to a lack of clarity or consistency. Kondo rejects that complaint.

“Interpretation is subjective by nature,” Kondo said. “So it’s correct that there’s a subjective element to the interpretation but that doesn’t mean that we’re making stuff up and it’s just Les Kondo or the State Ethics Commission staff off by themselves.”

First and foremost, Kondo said he looks to the state ethics law. On rare occasions, the Ethics Commission looks to how other states handled situations, but mainly decisions are crafted based on precedent within Hawaii, he said. Regarding the “Taste of Ag” decision, Kondo said that lawmakers and lobbyists made it clear to him that they weren’t happy. Kondo said the frustration directed at him demonstrates that he needs to keep working to educate state employees about the rules.

Ethics “godfather” Stern says commissions must also go a step beyond education and guidance, and deliver when it comes to enforcement. Strong enforcement, he says, is at least as important as a well-written ethics law.

“Actually going after public officials and bringing cases against them instead of just releasing statements,” Stern said. “In most jurisdictions, they’re afraid to go against the public officials.”

Kondo, who has led the Hawaii commission for about one year, won’t say whether he likes his job. Instead, he calls it “interesting and very challenging.” He said he agrees with Bycel’s description of the commission’s role as a “watchdog” but knows that some interpret his duties as a personal attack against them.

“When people tell me they really want to get me fired, that’s personal,” Kondo said. “From my perspective, we’re not being a lap dog and we’re not being a mad dog. It’s a hard sell when I tell people you should look at me as your teammate. Folks get mad, and they aren’t listening at this point, but I tell them, ‘I’d rather talk to you before the fact than after the fact, when someone has brought a charge against you. I want to keep your name out of the paper because I know if your name is in the paper, my name is in the paper, too.'”