State Rep. James “Jimmy” Tokioka has voted nearly two dozen times on bills related to telecommunications, broadband and cable television in the 2012 Hawaii Legislature.

But Tokioka works for Oceanic Time Warner Cable and several of the measures were supported by his employer.

According to Tokioka’s latest disclosure with the Hawaii State Ethics Commission, the Kauai representative is paid between $50,000 and $100,000 annually as a business manager for Oceanic.

Oceanic provides for digital TV, high-speed Internet and home phone service throughout the state. With more than 270,000 subscribers, it is the largest Internet service provider in Hawaii.

Tokioka acknowledged to Civil Beat that he voted on measures involving telecommunications, but he said that he always asked House Speaker Calvin Say for a ruling on a potential conflict of interest when bills came to the floor.

“I would say, ‘I work for Oceanic,’ and then he looked at it and said ‘no conflict,'” said Tokioka. “I did that, I believe, on every single bill.”

That’s Say’s recollection as well.

“First and foremost, I am just happy that members ask if there is a conflict, that that is in the record on the floor of the House,” he said. “At that point, I try to incorporate the past action of all former speakers, which is to allow all members to vote on issues important to their community. That approach I have always taken.”

House Communications Director Georgette Deemer pointed to House rules that she said support the speaker’s “no conflict” ruling on Tokioka, who is a majority whip for House Democrats and a Say supporter.

“I think it is pretty clear that if there is a potential conflict, the way that it is decided is if a member has a direct personal or financial interest — with the exception of a member who is of a class of people,” she said.

By “class of people,” Deemer means that a representative may have a connection with an entity that is affected by legislation — for example, an attorney whose law firm is involved in environmental matters concerning the state or a real estate company affected by mortgage foreclosure laws.

Such legislation, said Deemer, is not “directed specifically” at a representative.

Tokioka, however, has his critics, including Jay April, president and CEO of Akaku: Maui Community Television. He believes that Tokioka is part of a state House effort to reduce PEG funding (it stands for “public, educational and government”) for public access stations.

“He absolutely has a conflict because, if you look at Time Warner’s record across the country, they are one of the top cable companies in the United States,” he said. “Time Warner is a big operative.”

Bills and Votes

April has been publicly expressing his views about Tokioka.

He has posted a link on Akaku’s website that reprints an article by Hawaii blogger Ian Lind. The title of Lind’s March 2 article is blunt: “Does a $50,000+ job with Oceanic Time Warner create a conflict of interest for legislator?”

More than a dozen measures related to broadband, telecommunications and cable were introduced in the 2012 session.

Four remain alive, including two measures — House Bill 2524 and HB 2526 — that are part of the Abercrombie administration’s initiative to improve the state’s broadband capabilities.

Oceanic testified in support of HB 2524 and raised concerns and requested amendments on HB 2526. While excused from some committee votes, Tokioka voted in favor of both measures.

Tokioka also voted in favor of the other two telecom measures that remain alive, Senate Bill 2235 and SB 2236. Oceanic did not testify on SB 2235 — the bill concerns broadband permits and infrastructure — but did provide comments on SB 2236, which would allow issuance of special purpose revenue bond financing for telecommunications projects.

Tokioka also voted in favor of four other telecom bills that were later deferred: HB 2874, which also had Oceanic’s support (more on that below); HB 2267, HB 2324 and HB 2325.

And, Tokioka was a co-sponsor of another deferred measure, HB 2653, which sought to do the following:

Exempts the upgrading of existing wireless telecommunications facilities from state and county permitting processes. Provides expedited permits for siting of wireless telecommunication facilities and proposed new tower and antenna support structure.

HB 2653 was supported by three other telecom companies, AT&T, Verizon Wireless and Sandwich Isles Communications.

Ian Lind, in his March 2 article, raised the question of conflict of interest over Tokioka’s vote on HB 2874, “one of the cable bills that has stirred up controversy.”

Lind, a former newspaper journalist and former executive director of Common Cause Hawaii, wrote that “Oceanic, which often finds itself at odds with the community access corporations funded by its franchise fees, is seen as a key interest behind these cable-related bills.”

Roy Amemiya, president and CEO of Oahu’s Olelo Community Media, also strongly objected to HB 2874, largely because of revenue concerns.

But Bob Barlow, president of Oceanic Time Warner Cable, testified, “Oceanic is supportive of initiatives such as this legislation that provides a more equitable distribution of cable fees toward education and government services.”

What the Rules Say

The words “conflict of interest” appear only four times in the 53 pages of House of Representatives rules — once in the table of contents and the rest in these passages:

60.5. If the member has a conflict of interest in legislation, the member shall disclose to the presiding officer (the committee chair or the Speaker, depending on where the vote is taking place) the conflict of interest prior to voting on that legislation. For the purposes of this rule, a “conflict of interest” means that the legislation affects the member’s direct personal, familial, or financial interest except if the member, or the member’s relative, is part of a class of people affected by the legislation.
 
60.6. If a member is uncertain as to whether a conflict of interest exists, the member may request a ruling from the presiding officer by giving notice and disclosing the direct financial interest to the presiding officer prior to voting. When making a determination in cases where a portion of a measure may place a member in a conflict of interest, the presiding officer shall give due consideration to the context of that portion as it relates to the overall purpose of the measure. If the presiding officer determines that a conflict exists, the presiding officer shall recognize the conflict and honor the member’s request to be excused from discussion, debate, and voting.

The Hawaii State Ethics Code, meantime, mentions “conflict of interest” only twice, in the table of contents and in this section:

§84-14 Conflicts of interests. (a) No employee shall take any official action directly affecting:(1) A business or other undertaking in which he has a substantial financial interest; or (2) A private undertaking in which he is engaged as legal counsel, advisor, consultant, representative, or other agency capacity.

Legislators, however, are exempt from that provision.

Asked about whether he had concerns about the appearance of a conflict of interest by voting on bills related to the industry — and the company — that employs him, Tokioka said he was hired by Oceanic in July 2011 to do hotel sales. He said his votes have been consistent on telecommunications legislation for the past six years, and the new job hasn’t changed that.

Speaker Say is also not troubled by appearances, either. If there is a perceived conflict, Say said, voters can choose not to re-elect Tokioka.

Civil Beat did not examine every “no conflict” ruling by Say this session. But, as Civil Beat has reported, in the 2011 session Say decided 97 out of 100 times there was no conflict of interest in votes involving members.

That included giving the green light to Speaker Emeritus Joe Souki to vote on a proposed plastic-bag ban, even though Souki is a paid lobbyist for a chemical industry that produces plastic bags.

What Critics Say

Tokioka said he has never discussed legislation with his bosses at Oceanic.

His ex-wife, Beth Tokioka, is on the state’s Cable Advisory Committee. Tokioka said he’s never discussed the cable business or legislative matters with her.

“We’ve been divorced 16 years,” he said. “Why would I do something crazy like that?”

Tokioka said that Akaku’s April and Olelo’s Amemiya have been “frustrated” by Tokioka’s scrutiny of the stations’ lack of transparency about finances — he says both local stations make millions from cable fees — and his push to have them provide closed captioning. Tokioka’s 17-year-old son is deaf.

“They’ve been pissed about that,” said Tokioka. “If they want to fight me because I want to get closed captioning, well. … Is that a conflict — by fighting for people because (they are deaf)?”

April dismissed Tokioka’s charges and called him “an enemy of the people when it comes to the concept of community television in Hawaii.” He said Tokioka should not vote or be involved with legislation that “in any way benefits Time Warner.”

Amemiya did not comment on whether Tokioka had a conflict of interest.

He did say that Olelo agrees closed captions for programming “is a very worthy goal” but “very costly.”

Like April, Amemiya is critical of Tokioka.

“What is puzzling is that he consistently supports legislation to reduce our funding when he should be helping us remove the existing cap on our funds rather than lowering it further,” he said. “This is money that is already being collected from cable subscribers, but because of the cap, subscribers are not receiving PEG (Public, Educational and Government) access benefit.”

“As for transparency, we have repeatedly shared our financial information with House members including a presentation earlier this session to the entire House Leadership at which Rep. Tokioka was present,” he said. “But despite our efforts to educate and inform, he refuses to believe our financials that are supported by clean audit reports. It is very frustrating.”

Tokioka does not appear to accept the audit reports.

He is the author of House Concurrent Resolution 183, which calls for a performance audit of the Department of Commerce and Consumer Affairs Cable Television Division, the agency that has jurisdiction over Olelo, Akaku and public access stations on Kauai and the Big Island.

The resolution passed the House this session but has not been heard by the Senate. Tokioka voted in favor of HCR 183.