The Hawai'i State Ethics Commission has warned state lawmakers that invitations from the Hawaii Medical Assurance Association to visit its skybox at the Sony Open next month seem to violate the state's gift ban.

The HMAA, which provides health benefits to small- and medium-sized companies, invited each lawmaker and a guest to the skybox on the 17th hole of the Waialae Country Club during the PGA Tour event.

"It's only meant to be a courtesy. No one is going to be lobbied. Not at the Sony Open," said John Henry Felix, HMAA's chairman and chief executive officer.

But Dan Mollway, the ethics commission's executive director, told lawmakers in a confidential memo this month that it was reasonable to infer the invitations were given to influence or reward official action and have no overriding state purpose.

The state ethics code prohibits lawmakers from receiving gifts, including entertainment and hospitality, intended to influence or reward their official duties. Lawmakers are also prohibited from accepting anything of value because of their status.

WHERE TO DRAW THE LINE

The issue goes beyond an invitation to a golf tournament and touches on the more slippery territory of what, if any, perks lawmakers should be able to accept from the people and interest groups competing for their attention. It also shows how sensitive lawmakers, and the ethics commission, can be when it comes to setting boundaries.

In a separate memo this month to lobbyists, Mollway warned that many lobbyists, trade associations and other interest groups are not reporting their expenses for "getting to know" or "goodwill" receptions with lawmakers that are typically held at the end of the year or in early January before the legislative session.

Lobbyists and interest groups are required to report lobbying expenses to the ethics commission, which makes the information available to the public. Expenses can include any beverages and meals for a lawmaker that exceed $25 per day or $150 per reporting period. Lobbyists and interest groups that ignore the law could face a $500 fine per violation.

Mollway wrote that even if specific legislation is not discussed at the receptions it does not mean the activity is not considered lobbying. He said building rapport with lawmakers in these settings could lead to greater access later during session.

"If you are talking to them for the purposes of building relationships for the purpose of lobbying down the road — and then talking about specific bills — then we would consider that 'goodwill lobbying,' " Mollway said in an interview.

The two memos, which were discussed in private caucus by state House and Senate Democrats last week, have ruffled some lawmakers who believe Mollway might be interpreting the ethics code too broadly.

"I think he's sort of trying to write legislation with some of his opinion letters," said state Sen. Norman Sakamoto, D-15th (Waimalu, Airport, Salt Lake).

State Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha), said she would ask Mollway to speak to senators after the holidays to clarify the memos. She said no lawmaker wants to be accused of violating the ethics code but believes the memos and other guidance from the commission often appears contradictory.

For example, the HMAA invitation to the Sony Open could be viewed as "goodwill" outreach that should be reported as a lobbying expense. At the same time, lawmakers are being warned not to attend for fear of violating the gift ban.

"I think there is a level of frustration," Hanabusa said.

State House Majority Leader Kirk Caldwell, D-24th (Manoa), said he basically told House Democrats in caucus Thursday not to accept the HMAA invitation out of caution. "The opinions from the commission are so broad you can read so many interpretations into them," he said.

ETHICS CODE

Asked about the memos, John Radcliffe, one of the state's top lobbyists, said it was not his place to agree or disagree with Mollway. "The regulator says that's what it is — that's what it is," he said. "Are we going to comply? You bet."

State Sen. Les Ihara, Jr., D-9th (Kapahulu, Kaimuki, Palolo), said he may propose lobbying reform legislation next session to strengthen disclosure requirements.

"Our lobbying disclosure system is resulting in little actually being disclosed," he said.

Mollway said the memos are meant as guidance for lawmakers and lobbyists and reflect his interpretations of the ethics code. The HMAA memo came after he was asked about the propriety of the invitation. He said he sent his memo to lobbyists after hearing several concerns that lobbying expenses are not being reported. "It's much better to address it before it happens than after someone files a complaint," he said.

Mollway said he only became aware in the past year of the dozens of receptions lawmakers are invited to before each session. He acknowledged it is a difficult area of the ethics code because it is not always clear when a reception rises to lobbying.

On Thursday, after speaking with The Advertiser, Mollway sent another confidential memo to lawmakers explaining that he was only trying to provide cautionary advice and did not intend for the issue to "find its way to the media." He wrote that one lawmaker had left him a voice message that questioned whether it was proper to attend any event if the HMAA invitation violates the gift ban.

"This is certainly not the case," Mollway wrote. "The memorandum regarding the HMAA was based on the facts of the case to the extent that I knew them, which is why I used the word 'seem' in my memorandum.

"If there were a bar to legislators attending any event where something of any value might be presented to a legislator, no matter how small, our office would have issued such a memorandum long ago."

The ethics code was written in part to help improve the public's confidence in government and reduce the perception that lawmakers get special treatment. For many lawmakers, that perception alone is enough to discourage certain behavior.

An 'Aiea man, for instance, complained to Gov. Linda Lingle after his experience at the University of Hawai'i football game against New Mexico State at Aloha Stadium in October. He said his family was invited to watch the game in the press box but his two sons, ages 4 and 6, were turned away because of safety rules to prevent young children from falling out. To his dismay, he said, he saw two young children in the press box with Lingle and her friends.

"I didn't know that segregation was still alive in 2007," the man wrote in an e-mail to Lingle, state lawmakers and The Advertiser. "I did not know that there were two separate sets of rules made for those that are friends with the governor and for those that are not. At last check, I believe the governor's position was a publicly held, elected position, elected by citizens of Hawai'i like myself. Since when or how many of these separate rules are there in Hawai'i?"

Russ Saito, the state comptroller who oversees Aloha Stadium for the Lingle administration, responded to the man in an e-mail Thursday.

"I agree with your assertion that rules should be adhered to without regard to one's position," Saito wrote. "The governor was not made aware of the rule regarding the age restriction in the press box. However, stadium personnel were aware of the rule and should not have allowed the family and young children you mentioned to visit the governor in the press box."

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.

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