Archive for July, 2011

Reapportionment Opinion

July 20th, 2011

Rep. Bob Herkes on Tuesday presented the state Reapportionment Commission with an opinion from Attorney General David Louie stating that if the matter went to court, the state Supreme Court was likely to rule that nonresident groups (including military members and their dependents, students and incarcerated felons) should not be included in the population count for purposes of redistricting. (Story here)

The Commission voted last month, 8-1, to include those nonresident population groups in the population count. Doing so would prevent the Big Island from picking up a seat in the state Senate, retaining it on Oahu.

Here is the complete letter from the attorney general:

AG Herkes Opinion Reapportionment


July 19th, 2011

City Councilman Tom Berg has parted ways with adviser Eric Ryan.

Berg, in an email, said Ryan was fired recently for “workplace performance issues.”

Ryan, a conservative activist, was brought on board after Berg won the special election for Council District 1. Prior to working on Berg’s staff, Ryan was known more as a political agitator, with infamous public blowups with previous allies such as former state lawmaker and GOP gubernatorial hopeful John Carroll and anti-rail crusaders.

Ryan contends his firing was retaliatory. His statement can be found here.


July 19th, 2011

Marvin Dang, an attorney who serves on the state’s mortgage foreclosure task force, has asked the state Ethics Commission to retract a May memo that warned task force members not to testify before the Legislature as paid lobbyists on matters related to the task force’s work.

Dang, representing the Hawaii Financial Services Association, had testified against a mortgage foreclosure bill that passed the Legislature and was signed into law by Gov. Neil Abercrombie.

Leslie Kondo, the executive director of the Ethics Commission, noting that the state ethics code is meant to be “liberally construed,” held in the memo that members of task forces are state employees like members of boards, commissions and committees.

State employees are prohibited from being paid to represent another person or business on matters in which the employee participated.

In a letter Monday to Kondo, Dang said the commission’s memo was “overly broad and inconsistent with applicable statutes.”

Dang contends, among other things, that members of task forces are not state employees.

As you may know, a “task force” is different from a board or commission, and it is not a committee (such as a committee that is part of a department). The Mortgage Foreclosure Task Force has a limited duration: it was created by Act 162 on June 3, 2010 and it sunsets on June 30, 2012. It was established by the Legislature to conduct an analysis of all factors affecting mortgage foreclosures and to recommend appropriate legislation. It is required to submit reports of its findings and recommendations to the Legislature. The Task Force is solely advisory. It does not have regulatory powers. It does not make policy. Its members are not appointed by the Governor nor are they confirmed by the Senate. The Task Force is within the Department of Commerce & Consumer Affairs for administrative purposes.

HRS 84-3 refers only to “boards, commissions and committees.” No other entity is mentioned. Compare this to an unrelated statute (HRS 662D-1) which refers to “board, commission, division, office, officer, public body, task force, or any other similar entity (emphasis added).

There is a principle of statutory interpretation called “expressio unius est exclusio alterius,” which means “the inclusion of the one thing is the exclusion of the other.” In other words, when one or more things of a class are expressly mentioned, others of the same class are excluded.

*Update: Kondo said Tuesday that he has been invited to speak to the mortgage foreclosure task force in August. He said he does not plan to retract the memo.

“I don’t think the letter is appropriate,” he said of Dang’s correspondence. “The commission staff provided guidance based on the interpretation of the statute.”


July 15th, 2011

Paul Brewbaker, an economist and the former chairman of the state Council on Revenues, believes the state’s economic recovery is stronger than the Abercrombie administration has suggested.

Brewbaker had the task of defending the council’s projections, which have been criticized over the years for missing the full extent of revenue decline during recession and the pace of revenue growth during boom years.

The economist has described former Gov. Linda Lingle’s decision to delay state income tax refunds last year as “shenanigans.” But he said in an email that people should discard the impact of the refund delay — which the state says masks 3.4 percent in revenue growth — and take a closer look at other revenue streams.

I say, “ignore ALL refunds for a moment, corporate and individual. Just concentrate on what is ACTUALLY happening to the various tax revenue streams.”

Answer: gross revenues rose +7.4% last year. If refunds were “normal” from year to year–without any shenanigans–they should have been about neutral to that growth rate.

If this was a BAD fiscal year of economic recovery, and revenues grew 7% plus or minus a half percentage point, with Sendai, with oil, with UHERO saying “jobless recovery,” with TV newscasters bleating “double-dip,” with
Greece, repeatedly, with the monetary policy triage of QE2, with a gubernatorial election that reminds us of the Condorcet Paradox (Wiki it–think “Duke, Mufi, Neal” (in alphabetical order); now design an election), then imagine what a NORMAL year will look like!

The problem: there IS no normal. This IS normal, having all this stuff thrown at you. Take the 7% and get back to work.

Lingle in D.C.

July 15th, 2011

Former Republican Gov. Linda Lingle was in Washington, D.C. this week — taking part in a policy discussion on what role governors can play in a natural or man-made disaster.

Lingle was on a panel of former governors speaking Thursday at the Bipartisan Policy Center.

The conclusion, according to a published report, is that state leaders should aim to be transparent, on scene and know their local counterparts ahead of disasters.

From the story:

Linda Lingle, former governor of Hawaii, said Hurricane Katrina turned civil defense models upside down: The feds have become first responders. But Hawaii, imperiled by hurricanes and volcanoes, is five hours from the nearest help and needs plans in place for every town, county and island to remain self-sufficient until help can arrive, Lingle said.

Lingle was named in December as a founding member of a new governors’ council to advise the Bipartisan Policy Center.

First glimpse

July 13th, 2011

U.S. Rep. Mazie Hirono’s campaign has told supporters that the congresswoman raised nearly $300,000 in the last quarter for her run in the Democratic primary for U.S. Senate.

Jadine Nielsen, Hirono’s finance chair, said in an email:

This early support will help our campaign keep our foot on the gas pedal as we continue building a strong, grassroots organization all across Hawaii. But we know this campaign won’t be easy, and we still have a lot of work to do.

The Hirono campaign, which raised more than $100,000 in the first quarter of the year, has about $545,000 in cash on hand, according to Nielsen’s email.

Hirono’s staff would not provide a copy or more details about the campaign-finance report on Wednesday evening. Quarterly reports covering fundraising from April through June are expected to be publicly available on Friday.

Hirono and former congressman Ed Case are the announced candidates in the primary to replace U.S. Sen. Daniel Akaka, D-Hawaii, who is not seeking another term next year.

*Update: Case, in an email to supporters on Tuesday, said his campaign exceeded quarterly fundraising goals. He said on Thursday that he has raised around $240,000 since he announced his campaign and has about $210,000 in cash on hand.

We just finished our first fundraising quarter since I announced, and thanks to so many of you we exceeded our goals for both contributors and contributions. Mahalo for supporting us with your hard-earned resources; you’ve given us the solid footing we needed to go forward.

But meeting our goals in the first quarter of a Senate campaign is a little like setting some money aside for retirement when you’re 25. You’re glad you did it, but it’s nowhere near enough, there’s a long way still to go, and you’ve got to stay at it the whole way.

Ahead of the curve

July 13th, 2011

The state Council on Revenues has taken some grief over the past few years for missing the extent of the decline in state tax collections because of the recession.

But for fiscal year 2011, which closed at the end of June, the council was out ahead.

The council projected a 1.6 percent decline in revenue. The actual decline, according to the state Department of Taxation, was 0.9 percent, which gives the Abercrombie administration more wiggle room in implementing the state budget.

Revenues would have increased by 3.4 percent if not for the decision by former Gov. Linda Lingle to delay state tax refunds last year to help balance the budget.

Here’s how the state House and Senate budget negotiators viewed the council’s projections before grudgingly accepting the -1.6 percent forecast:

By law, the Council on Revenues (Council) reports its latest tax revenue forecast to the Governor and the Legislature on June 1, September 10, January 10, and March 15 of each year. The revenues come primarily from the general excise tax and the state income tax. Since the March 2010 forecast, the Council has both raised and lowered its prediction of tax revenues for the current fiscal year. The Council’s most recent forecast on March 29, 2011, lowered the growth rate to -1.6 per cent. The erratic changes in the Council’s forecasts, due largely to the income tax refund delay imposed by the prior administration, have hindered your Committee’s ability to formulate a functional budget, as appropriation requests are largely based on original revenue projections that are no longer viable.

The administration based its original budget request on the Council’s September 2009 projection of two per cent general fund tax revenue growth for fiscal year 2010-2011. Using this revenue projection, the budget deficit over the upcoming biennium was initially estimated at $818.5 million.

On December 29, 2010, the Council revised its forecast upward from two per cent to three per cent, resulting in an anticipated gain of $146.6 million in tax revenue through the end of the fiscal biennium. Incredulous that such an increase in revenue would materialize, neither the administration nor your Committee on Conference relied upon it.

On March 10, 2011, the Council revised its forecast downward from three per cent to 0.5 per cent, which resulted in a subsequent projected revenue reduction of $243 million through the end of the fiscal biennium. Hours later, Japan was struck by a trifecta of disasters — the 9.0 magnitude earthquake, deadly tsunami, and nuclear calamity. The disasters were unimaginable, devastating the Japanese people, causing unprecedented damage, and crippling Japan’s economy.

Given Japan’s significant share in the State’s tourism market, the Council was called back into session and convened on March 29, 2011, to re-evaluate its March 10, 2011, meeting projection in anticipation of declining numbers of Japanese visitors.

Although the Council lowered the projection to -1.6 per cent, which resulted in an additional revenue loss of $93.1 million for fiscal year 2010-2011 alone, and a loss of $311.7 million through the end of the fiscal biennium, the Council adjustment was due more in part to poor tax collections in February 2011 than the tragic events in Japan. In fact, some of the Council members noted that they did not see the events in Japan as having long-term effects on the State’s economy.

With the revised revenue levels, a net $1.3 billion deficit is projected over the biennium. However, despite the downward revenue projections for the current fiscal year, the Council retained its March 10 revenue growth forecast for fiscal year 2011-2012 of eleven per cent and maintained the previous forecast for fiscal years 2013-2017 at six per cent. The forecast was rationalized by the Council Chair’s optimistic statements that the two most important core components of Hawaii’s general fund revenues, general excise and use taxes and withholding taxes on wages, continue to grow at rates consistent with economic recovery.

Given the global and economic uncertainties and the recent volatility in the Council’s projections, it is with great caution that your Committee on Conference accepts the Council’s current revenue projection and notes the significant downside risk that exists for the revenue growth assumptions for the budget planning period.


July 12th, 2011

Gov. Neil Abercrombie has announced the last of his 17 vetoes for the year. State House and Senate leaders declined to return for a one-day override session on Tuesday, so the vetoes will stand.

Here are the bills the governor rejected, along with his explanation:

House Bill 56 would have allowed the family court to award reasonable visitation rights to grandparents if the denial of visitation would cause significant harm to the child. This bill would make it more difficult for grandparents to visit their grandchildren.

House Bill 545 would have required electronic voter registration on the website of the Office of Elections by January 1, 2014.  This measure would have required the Attorney General, counties, and the Office of Elections to modify its computer systems to verify the information required in the online voter registration system and to obtain an electronic copy of each applicant’s signature.  The estimated cost of implementation is $2.5 million and no funding was provided in the bill.  Electronic voter registration can be addressed as the state moves to assess and overhaul the state’s technology systems.

House Bill 667 would have created the food safety and security program within the Department of Agriculture (HDOA).  This bill did not provide any funding or power for the department to establish regulations.  Congress has recently passed the Food Safety Modernization Act and federal regulations are in the process of being passed.  The state must act on the issue of food safety and this Administration will be working on bringing a bill before the Legislature that is comprehensive and includes implementation of a funding mechanism.  Moreover, this measure has created such a division of opinion, passage of this bill would make more problems than it solves.

House Bill 1155 would have specified class A and B felonies that require mandatory minimum prison terms under the repeat offender statute. It would have also reinstated, added, and deleted certain class C felonies that require the mandatory minimum prison terms under the repeat offender statute. This bill would significantly change the current policy on how the criminal justice system addresses the problem of repeat offenders that was originally enacted since 1976. This bill would make the repeat offender law inapplicable to all felony drug offenses, ownership or possession of firearms or ammunition by persons convicted of certain crimes, and insurance fraud felony convictions. Governor Abercrombie agrees with the need to have judicial discretion and would like to revisit the issues raised in this bill in the next legislative session.

House Bill 1230 would have exempted the construction of nonresidential structures used for agricultural or aquacultural operations from county building permitting processes.  This measure does not define “third party reviewer” nor does it require such reviewer to have any technical knowledge of building code requirements.  This could lead to unqualified and inappropriate persons being labeled a third party reviewer to certify the building plans.

House Bill 1654 would have terminated a conditional use permit issued by a county agency to facilities intended for group living facilities or group homes that do not use the permits or cease operations for one year. There is a technical flaw in this bill.

Senate Bill 23 would have established the Aha Kiole Advisory Council within DLNR.  This Council is self-selected, not confirmed, has no defined term limits, offers no guidelines concerning the role of its members, selects its own Executive Director and offers no recourse for inappropriate conduct by its members.  This is a private entity that would receive taxpayer funds with no oversight.  Moreover, this Council is more appropriately placed with a new governing entity.

Senate Bill 40 would have established a tracking system for the sale of products containing pseudoephedrine or ephedrine. In conference committee, the legislature added “ephedrine” to also be tracked and reported. There is a technical flaw in this bill making it unconstitutional because the title of the bill is “relating to pseudoephedrine.”

Senate Bill 44 would have required the Department of Public Safety (PSD) to establish performance indicators for inmate reentry system; and required reports, using key performance indicators, to be provided to the legislature. It created the corrections and program report as a consolidated report of other annual reports. This bill does not allow enough time or resources for PSD to accomplish the intended outcomes of the bill. The Governor agrees with the intent of this bill but feels that it is premature. He would like to wait to see the outcomes from the Justice Reinvestment process and assessment from the new Chief Information Officer on the PSD’s capacity to respond in these performance areas.

Senate Bill 49 would have required the Director of Public Safety to report to the Governor, and the Governor to report to the legislature any death of an inmate or correctional facility employee within 48 hours. PSD currently does this and there is another statute that covers this procedure.

Senate Bill 217 would have eliminated the statute of limitations for civil actions brought by victims of sexual offenses as a minor against the person who committed the act(s) and authorizes suits against a legal entity in certain circumstances. This bill allowed an employer, including the state, to be sued for the criminal acts of its employees. This is contrary to well-established tort and agency law and is in direct contravention of the State Tort Liability Act (STLA), Chapter 662 of the Hawai’i Revised Statutes. Under the STLA, the state cannot be sued for the criminal or intentional acts of its employees. The elimination of a statute of limitations for a civil claim also raises grave constitutional and fairness concerns. If a claim can be brought after an unlimited passage of time, it is likely that documents will be lost or destroyed and witnesses will die or move away. The accused, even those falsely accused, will not be able to defend himself, herself, or itself, and true justice will not be achieved.

Senate Bill 590 would have extended the sunset date of the American Reinvestment and Recovery Act Commission by six months.  Governor Abercrombie already signed House Bill 383 into law as Act 26 that does the same thing.

Senate Bill 1417 would have established the minimum number of board members necessary to constitute a quorum for the State Rehabilitation Council to 10 and establishes the number of votes necessary to validate any action of the Council to at least a majority of quorum. Governor Abercrombie believes that rather than reduce quorum, it is better to appoint people to serve on the Council who are committed and will participate in meetings. Reducing the number of votes necessary to validate any action of the Council to 6 out of a 21 member council is not a fair representation of the Council.

Senate Bill 1493 would have required all new and replacement lights to be fully shielded beginning July 1, 2013, with certain exemptions. This bill did not provide funding for the significant initial and continuing expenses required to implement this legislation; and does not provide a feasible implementation plan. Governor Abercrombie believes this is a worthy issue and will work with the Legislature in the 2012 Legislative Session to achieve the objectives of this measure.

Senate Bill 1559 would have required priority processing of applications for agricultural facilities of an agribusiness that only processes crops or livestock produced on Important Agricultural Lands (IAL).  It also required the Public Utility Commission to establish preferential rates for the purchase of energy consumed for agricultural purposes on IAL.  While these incentives are important for encouraging agriculture and the designation of IALs, the preferential treatment needs to be decided within an overall agricultural policy.  Moreover, mandates on county governments should be worked out before imposing new requirements.


July 11th, 2011

The Abercrombie administration has posted an FAQ on the state’s website to detail the state’s side of the contract dispute with the Hawaii State Teachers Association.

The FAQ provides an alternate narrative to the prohibited practices complaint the HSTA filed with the Hawaii Labor Relations Board on Friday.

The narrative seeks to explain why the liberal Democrat who has been a labor ally for four decades chose to unilaterally implement the “last, best and final” contract offer:

Governor Abercrombie said he is supportive of teachers. How is this action supportive of teachers?

Public school teachers have sacrificed over the years and, like all public employees, they have faced a lot of criticism. Governor Abercrombie repeatedly reminds us that public workers are our neighbors, family members, and friends who pay taxes and have obligations just like everyone else. Governor Abercrombie and his brother were teachers. His mother was a kindergarten teacher who was taken advantage of because she was not part of an organized union. He believes teachers should have been given the opportunity to vote on the agreement reached by their negotiators. But since that opportunity was denied, implementation of the agreed terms is the only way forward that puts education above all else in a time when all people of Hawai’i are being asked to contribute their share.

Does the implementation of this “last, best and final offer” undermine the collective bargaining process?

No. Implementation of the “last, best and final offer” is part of the collective bargaining process. The rights of Hawai’i workers to collectively bargain are embedded in the State Constitution. Governor Abercrombie has been and will always be a champion of the rights of working people and the need for collective bargaining. But while the people of Hawai’i want to hold on to our core values, they also want to change the ways that government operates to better address our current and future challenges. Collective bargaining remains important as we come up with new ways of thinking and working together.


July 11th, 2011

The state Reapportionment Commission, which is redrawing the state’s political boundaries based on new population numbers from the census, has provided an opportunity on its website for anyone to draw and share their own maps.

Check it out here.

The commission is expected to make its first cut public in early August.