Foley hails Legislature’s inroads on corruption

by Grassroot Institute of Hawaii, June 8, 2023

The recently concluded 2023 legislative session might have been disappointing on many fronts. But not all was doom and gloom. According to retired Judge Dan Foley, meaningful progress was made in the fight to improve transparency and accountability in our government. 

On the latest episode of “Hawaii Together” on ThinkTech Hawaii, Foley joined host Keli‘i Akina, president of the Grassroot Institute of Hawaii, to discuss which bills aimed at combating corruption were adopted by the Legislature, and which ones remain standing for future consideration.  

Foley chaired the Commission to Improve Standards of Conduct, tasked with recommending changes in response to several high-profile corruption scandals involving former lawmakers. 

Of the 28 bills the Commission recommended, 20 passed in some form, which Foley described as “a remarkable success.” Among them were a trio of bills designed to combat fraud, false claims and false statements: HB 707, HB710 and HB711.  

But several important measures failed to make it to the governor’s desk, including SB991 and HB719, which would have improved access to public records. 

“Right now, access to public records depends on how much money you have. People with money can buy their way in, people without money cannot,” Foley said. 

Taking the broader view, Foley said: “Corruption is never going to disappear. But we’re going to make it more difficult, and we’re going to make it riskier, and we’re going to make the penalties more severe.” 

In the meantime, he urged voters to “pay attention, engage your legislator, and see what your legislator is doing because legislators respond to their constituents.”

To view the entire interview, click on the image below. A complete transcript follows.

TRANSCRIPT

Keli’i Akina: Aloha, everyone, and welcome to “Hawaii Together” on ThinkTech Hawaii. I’m Keli’i Akina, your host and president of the Grassroot Institute of Hawaii. 

Well, corruption has always been a problem in Hawaii politics through the years. Across the state, elected lawmakers at both the state and county levels have been embroiled in bribery and ethics scandals recently, and beyond that, there have been many cases of corruption involving law enforcement officials, business leaders and many state and county bureaucrats.

Rooting out corruption seems like a daunting task, but thankfully, there are people in Hawaii who care about that and are doing just that. And that’s what we’re going to discuss on today’s show.

[music]

Akina: Aloha. I’m joined today by a man I respect greatly. He’s retired judge Dan Foley, who last year was chosen to chair the Commission to Improve Standards of Conduct following some serious corruption scandals at the state Legislature. 

The commission was created to recommend changes that might make Hawaii’s government more transparent and accountable and help eliminate the state’s culture of corruption that so many of us here in Hawaii abhor.

Before retiring in 2016 — and I use the term retiring guardedly — Dan served for 16 years on the Hawaii Intermediate Court of Appeals. Prior to that, he worked in private practice and is well known for his civil rights litigation, including representing the individuals whose case played a major role in the push to legalize same-sex marriage. Dan is also a nonresident judge on the Palau Supreme Court, a role he was appointed to in 2011. 

Won’t you join me in welcoming to the program, Dan Foley? Dan, thank you so much for joining us today. Appreciate you taking time out of your schedule to be here.

Judge Dan Foley: Great to be here. Thank you for having me.

Akina: Well, I’ve just really appreciated your role in the public in terms of not only the official positions you’ve held but in terms of your own advocacy of government that is cleaner and more transparent. Can you tell me just a little bit about how you got involved in your passionate advocacy for this?

Foley: Well, it happened shortly after a number of legislators were indicted — a member of the House and a member of the Senate — and we had ongoing corruption cases at the county level as well. I got a call from House Speaker Scott Saiki, who I’ve known for a long time — he was a student of mine when I taught civil rights at the law school — and he asked me if I would chair this commission he was going to create. He told me what it would be, who would be on it, and I said, “Yes.” 

I mean, how can you say no when you have a problem in government and there seems to be a serious effort to address it? I said I would do it. And the commission was created in the 2022 session. I became chair.

Akina: When the Commission to Improve Standards of Conduct was put together, what was its purpose? What were the outcomes that were expected?

Foley: The House resolution that created the commission went through the incidences of corruption and scandal, the loss of public trust, and it directed my commission to primarily focus on the laws that govern ethics, campaign spending [and] lobbying, and to make recommendations to make improvements to address corruption and to restore public trust.

Akina: Well, there were quite a few people who were somewhat jaded with the response of the government in the creation of another commission and not that enthusiastic that it would ultimately result in anything. When you were asked to be part of it, what were your feelings about the prospects of success?

Foley: You know, I understand that sentiment, and we’ve both heard it. You know, government creates a commission or a board to make a report to put on the shelf as a way of distraction, to avoid the problem. And I would not have accepted the appointment to the commission unless I thought the House was serious.

And the composition of the commission impressed me. It was the executive directors of the Ethics Commission, Campaign Spending Commission, representatives from Common Cause Hawaii, League of Women Voters, very respected former legislator Barbara Marumoto, who I got to work with and just absolutely love, and Flo Nakakuni, the former U.S. attorney. 

So I figured with a group like this, with a track record for open, transparent, honest government, independent, working with them, I thought we could actually come up with something meaningful. And I got the commitment from Speaker Saiki that the House would address it.

Akina: Well, now that you look back — the commission’s work is finished, I take it — how do you evaluate it? What came out of that process?

Foley: Well, we submitted a report that ran 396 pages, and that did not include all the documents that you can find on the House webpage that we utilized. We recommended the passage of 28 bills to increase transparency and accountability in government. Of those 28 bills, 20 passed in some form. 

Some became part of the House and Senate rules and administrative manuals. But you’ve been around; to have a commission, submit a report, recommend 28 bills, and the first session to have 20 pass: that’s a remarkable success.

Now, there are at least eight measures, significant measures, that didn’t pass, but this is the first regular session, and there’s another one coming up. 

Now, I’ve read columns and seen comments of  “big failure,” “nothing accomplished,” and “can’t trust the Legislature.”

And I just addressed the League of Women Voters a couple of weeks ago, and I compared it to an NBA game. We’re at halftime. You know, we finished half the work. We had a good first half — 20 of 28 ain’t bad. 

And now there’s a lot more to do, significant bills to do. We have another regular session coming up. Let’s continue to engage the Legislature, work hard, and finish the job. That’s my view.

So, I’m encouraged. I do think we have made progress. The governor, I believe, will sign the bills. The governor has also said he will take executive action to address areas where bills have not yet passed, maybe like access to public records. So I was very pleased with the results. 

Rep. Tarnas, who chairs the House Judiciary and Hawaiian Affairs Committees, conducted public hearings on every single one of our bills and passed out all but two. That’s pretty remarkable.

Akina: Well, I’m glad to hear of the positive results so far, but as you say, it’s part of an ongoing process, but a good start at the very least. 

Now, the Commission’s formation was on the heels of a period of time when we were watching reports about corruption on almost every news broadcast in the evenings for a period of time. 

We learned about our former legislators, our former Honolulu police chief, his wife and other notable individuals. It seemed as though Hawaii was going through quite a period of crime and corruption in public government. Was that the case, or was this just a passing episode?

Foley: I think it is the case. And the U.S. attorney’s investigation is not over. I expect more indictments to come down — possibly another legislator or two, more in county government. So we’re not finished with the investigation or prosecution.

One of the things we recommended that the Legislature pass, we recommended three bills to address corruption, fraud, false claims and false statements modeled after their federal counterparts. 

A lot of people ask, “Well, why is it that the federal government is doing this? Why not the state attorney general? Why not county prosecutors?” 

Well, for one thing, the federal government has better statutes to utilize. And working with the FBI, U.S. Attorney’s Office, the state attorney general, and all four county prosecutors, we crafted three bills, modeled after the federal bills, and all three passed.

So I do expect not only the U.S. Attorney’s Office to continue their investigation and prosecution, I would expect more activity from the [state] attorney general’s office and the four county prosecutors. 

Part of the collection or package of recommendations from my commission is to make government more transparent, to make it more difficult to have some of the conduct. Some of the conduct that we’ve read about — especially with the Legislature — came from lobbyists.

So we’ve had a number of bills passed and some signed into law already by the governor that makes it very transparent — relationships between legislators and lobbyists, what lobbyists are working on, prohibiting lobbyists from making campaign gifts.

And, you know, not one measure is the magic bullet. Corruption is never going to disappear, but we’re going to make it more difficult, and we’re going to make it riskier, and we’re going to make the penalties more severe.

Akina: We’re out here in the middle of the ocean in Hawaii, the most isolated archipelago on Earth, and certainly, distinct from the contiguous other states in the United States. How does the corruption you’ve seen here in the state of Hawaii stack up against corruption in other states, or even in Palau for that matter?

Foley: Well, Palau is great. They are really serious. They have a special prosecutor committed just to rooting out and prosecuting corruption. And the number of the cases I’ve sat on, is convictions and reviewing those convictions. So Palau is doing a great job, is taking it very seriously. 

I think we’re doing better than the mainland. I had a former law partner who got a master’s degree from Tulane and watched her race for mayor in Louisiana and one candidate for sheriff said, “Of course, I’m not honest, but at least I admit it.” So we have New Jersey — 

Akina: You can give him credit for that.

Foley: Yeah, we have New York, et cetera. So I don’t know how it compares to the mainland. I don’t think that’s really important. I think whatever is happening here, we can’t tolerate. And let’s become the cleanest, most transparent, most accountable government in the United States and in the Pacific. Why not?

Akina: Well, is it getting better, or is it getting worse as you look at Hawaii’s history since statehood? Let me give you that marker.

Foley: You know, let’s take the Bishop Estate, for example.

Akina: Yes, “Broken Trust.”

Foley: Yes, exactly. Bishop Estate operated as it did forever. What changed though was the culture, not so much the way Bishop Estate operated. But all of a sudden, people said, “Enough is enough. That type of behavior is not acceptable anymore.” 

The [state] Supreme Court, as you know, was caught up in that as accounted in Randy Roth’s  “Broken Trust.” Randy, who I love, and I’m sure you do, testified before our commission, and he said it’s really a matter of culture. We have to change the culture. It’s the old way of doing business: closing your eyes to wrongdoing, not sticking your neck out.

When there was corruption in the judiciary in the ’80s — whistleblower on “Cappy” Caminos and “Fat Boy” Okuda, a lot of, you know, payoff between the judiciary and the Legislature and members of the executive branch — I brought the whistleblower lawsuit on behalf of the deputy that reported it. He couldn’t find another lawyer, including a Republican lawyer, to take the case. 

And a number of cases I’ve taken when I was a lawyer is because other lawyers wanted to avoid controversy. When I took the “Save Sandy Beach” case, that’s when Bishop Estate was strong. No other lawyer would represent that coalition. So I took it.

So I think it’s a matter of changing the culture. And I think this commission is a beginning. I think holding people accountable for corruption is a beginning, so I think that’s good.

Akina: Dan, that’s an interesting thing, the culture. But who creates this culture? Is it created by politicians, by political parties? Is it created by the general public, by businesses, and so forth? How do we actually end up shaping the culture? 

I know that the Commission is recommending laws and legal measures and so forth. But what really brings about the culture that we live in that tolerates and even fosters corruption?

Foley: Well, you know, an answer to your question is: It’s really all of the above. All of that. All of those contribute to what we have. But ultimately, it’s the voter. 

You know, people complain about the Legislature. They’ll say, the presiding officer is a dictator, or the chair of the Ways and Means or Finance committees is a dictator. 

Everybody in the Legislature has one vote. If people are unsatisfied with the presiding officers, it’s because the majority of that body allows it. Same with the chair, or same with measures. And the voters put them in and keep them in every two years.

Businesses will do what they can to prosper. Government officials will get away with what they can get away with. 

Many of the proposals that we made and that are being passed will make those things more difficult — to make it more transparent so the voter can cast a more educated ballot, to make dealings between businesses, lobbyists, and legislators more transparent, which hopefully will make that more honest, to make government officials and employees more accountable for their actions, and to make their actions more transparent. So if they go wrong, they will be held accountable.

So it’s our desire from the Commission, our proposals, and I think we have made some progress, to address all of that. 

But ultimately, it comes down to the voter, you know. 

And one of the things that bother me — as you’ve said, and you alluded to it —  a lot of people will say, “Oh, this Commission report won’t mean anything. Whatever the Legislature will do will mean nothing.”

But that plays into the cynicism of the voter, the disillusionment. We have one of the lowest voter turnouts in the country. So my whole message is: Let’s get engaged, as bad as it is.

You mentioned the same-sex marriage case. I took that in 1991 — not one state, not one country in the world had same-sex marriage; 70% of the public was against it, and that’s probably a modest evaluation. What were the odds? 

But, you know, you roll up your sleeves, you get to work, you be positive, you don’t give up, and you can accomplish a lot of things. 50 states, 30 countries now have it. 

So why can’t we do the same in cleaning up our government? Just because it’s been, let’s say, a little less than honest and transparent in the past doesn’t mean it can’t be honest and transparent in the future.

Akina: Dan, the Commission came up with dozens of recommendations, and as you mentioned earlier, many of them have made their way into legislation and will soon perhaps be signed by the governor into law. What are one or two really good bills that you feel were passed that will make a difference?

Foley: Well, the one I mentioned, the sort of trio of fraud, false claims, false statements, giving our state and county law enforcement the tools to join the U.S. Attorney’s Office, investigating and prosecuting corruption. 

I think the trio of bills that deal with lobbyists to make lobbyists disclose all measures they’re working on by bill number, by measure number to prohibit them from making gifts to legislators.

For legislators in their financial disclosure, to disclose all relationships with lobbyists.

There are simple things that could have an impact. The League of Women Voters pushed through a voters guide. It’s a digital voters guide. So we have a more informed electorate.

One of the things that the public doesn’t fully take advantage of that they could, and I’m sure you do, the Legislature has a very transparent website. I started going to the Legislature in the ’80s where everything was hardcopy. It took you all day, every day to track something. Now it’s at your fingertips. 

But some of the recommendations we made that haven’t gone through yet — some of the committees are doing it, other committees are not — have public testimony available far in advance of the hearing. 

And the sort of fiasco we saw with the budget, to have that not repeat again. To have measures out there before they come up for a vote so the public can inspect and respond.

Some of the bills that are pending in the Legislature that I think are important that haven’t passed yet are public financing of elections; term limits, where there’s a difference of opinion; [and] no campaign contributions from contractors, grantees of public funds, their officers and family members to candidates.

Use of campaign funds: One thing we recommended: Right now you can take campaign funds and you can spend them on just about anything. You can give it to organizations, you can give it to scholarships and you can give it to other candidates. 

We said campaign funds should just be used for the campaigns of that candidate. And that’s pending, although it’s in a sort of unrecognizable form.

But I did write an article in the Honolulu —  the Advertiser — a couple of Sundays ago that did summarize all the bills that passed, all the bills that are pending, and I encourage anybody to read that.

Akina: Well, Dan, what were some of your disappointments? Where did the Legislature let you down?

Foley: Term limits, not so much. I proposed the term limits bill that was recommended by the Commission, 4-3. And even though there’s a split of opinion, I thought it was necessary to restore public trust. I think the public really wants it and they want to vote on it. So I would like to see that move.

Access to public records was a disappointment. Right now, access to public records depends on how much money you have. People with money can buy their way in, people without money cannot. 

So we recommended a bill in 2022 that was passed and vetoed by the governor that reduced the cost to access public records, made electronic records free, without cost, and if they were in the public interest, to make them free as well. 

That passed the House but has problems in the Senate, now it’s in conference committee. Since it passed, the year before, I was disappointed it didn’t pass. Some of the concerns some state agencies raised, we thought we addressed.

Solicitation and acceptance of contributions during a session, we recommended last year, no fundraisers during sessions. That passed, but what didn’t pass was soliciting and accepting funds during session. That hasn’t passed. I would hope that would pass. 

Well, one of the problems with that bill now, last year, the Legislature expanded it to all elected officials — not just legislators — can’t have fundraisers during sessions, or all elected officials can’t solicit or accept funds during session. 

Our recommendation is just legislators and candidates for the Legislature. Nice, simple bill. I think that should pass.

The contributions from people receiving public funds, whether commercial or noncommercial — that should pass. Campaign funds should be limited to campaigns. 

So there are some significant measures. And I do think there’s some interest in the Legislature. I don’t think we should throw up our hands and give up because they didn’t pass in the first session. You’ve been around. You know quite often a bill will be introduced in one session, and may take one or more sessions to have it become law.

Akina: Right.

Foley: So, you know, disappointed not every single proposal as we recommended passed as is in the first session, but that’s the legislative process, and you just keep working until you get the rest, and that’s what I intend to do.

Akina: Dan, you mentioned conference committees, and that made me think about the fact that this year there was a lot of concern about how the state budget was passed. One lawmaker even said that things were added to the budget even after the conference committee voted on it. Did the Commission come up with recommendations on how to combat these sorts of backroom deals?

Foley: Well, we discussed the sunshine law. And it applies to the county councils and executive agencies. And one of the problems in applying it to the Legislature, which would address the problem is that the Legislature meets in a short session, 60 days, with short deadlines. It just isn’t practical. 

Even Brian Black, who’s probably the biggest advocate for transparency for the Civil Beat Law Center, recognized that. But its many principles, a sunshine law should be adopted. And the budget’s probably the best example of a need for reform. That should never happen again.

You can extend a session, you can come up with your draft budget earlier and not wait until the last minute. People should not be voting on measures they haven’t read. Things shouldn’t be added to a measure — I don’t even know if that’s legal — after it’s voted upon. [laughs] So the budget this year is sort of the poster child on how not to do things, and that shouldn’t be repeated.

I hear part of the problem was we lost Sylvia Luke, who’s a master of the budget, and we got a new budget chair, not to blame him. But it’s not a matter of individuals, its the process. 

We in discussion said that the public should have access to these discussions on their budget, should be able to see what’s being proposed and being discussed. And I do think the House should take that up in its rules.

Akina: Dan, do you think it would help if members of the public were allowed to testify before conference committees?

Foley: I’m never against public input. That’s always a good thing. And to the degree that that can be accommodated, it should be, especially the way conference committees operate. If they significantly change a bill, the public should be able to see that proposed amendment and respond. 

So I guess the short answer is: yes. And the Legislature should think of a way to accommodate that, either by to put it all out there, to have a break, to have the discussions public.

We wanted the discussions public. And the [state] Constitution, it talks about meetings of the Legislature being public. You don’t have to adopt the sunshine law to just have your committee hearings more transparent.

Now, the conference committees, especially the budget conference committee, was the opposite of transparent. But I can tell you this much: I spent most of my time appearing before the House and Senate Judiciaries committees, and they were very transparent. What they recommended, they gave good reasons for. If they were going to defer a bill, they said why. And their decision-making was reasoned and public. So I would like to see more committees follow the model of those two judiciary committees.

Akina: Well, that sounds great. Well, Dan, you’ve provided such a great amount of insight. I appreciate it tremendously. 

We’ve got one minute left and I want to give it to you to tell us exactly what do we need to do to help bring down the rate of public corruption in Hawaii and to be the transparent government that we need to have.

Foley: Well, I think there are some great organizations — the Ethics Commission, the Campaign Spending Commission, Common Cause, and League of Women Voters — to participate in, to follow. Civil Beat has done, I think, a very good job in covering the legislative and government process and misdoings. 

But ultimately, I think it is to pay attention, engage your legislator, and see what your legislator is doing, because legislators respond to their constituents. And you look at the legislative election district, you only have a couple of thousand votes here and there. If a few hundred people in the election district  stand up, they can make a difference. They can get the attention, you know, of their legislator.

I know everybody’s busy. People have two jobs. They have to take care of their kids. There’s so much to do. But as much attention you can have on your legislative process, on your administrative agencies, on your government, what affects you, your city council. Look how the public’s responding to the pay raises at the City Council. That’s a great example of citizen action, and that may make a difference.

Akina: Well, very good. Well, thank you for your call to civic engagement, and thank you for your work on building a more transparent government here in Hawaii. Dan, thank you for being with us today.

Foley: My pleasure. Thank you.

Akina: My guest has been Dan Foley, former judge and still a very strong figure in helping Hawaii become what it needs to become. I’m your host, Keli‘i Akina. You’re watching “Hawaii Together” on ThinkTech Hawaii. Until next time. Aloha.