! January 9, 2012MEMO TO: Legislators (Via Email)FROM: Leslie H. Kondo, Executive DirectorSUBJECT: Invitations to “A Taste of Ag” We recently received an inquiry from a legislator regarding an invitation to “A Tasteof Ag,” an event presented by the Hawaii Crop Improvement Association1 (“HCIA”) andthe Hawaii Farm Bureau Federation2 (“HFBF”) and co-sponsored by, among others, theHawaii Department of Agriculture and the College of Tropical Agriculture and HumanResources, University of Hawaii. It is our understanding that approximately 400 invitationsto this event have been extended to business leaders, people associated with theagricultural industry, and certain government officials, including all legislators. We arewriting to advise legislators that based upon the information that we have received andreviewed, it is our opinion that the State Ethics Code prohibits the acceptance of thisinvitation by legislators.!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 HCIA is a nonprofit trade association representing the agricultural seed industry in Hawaii.Its member companies include Dow AgroScience, Monsanto, Pioneer Hi-Bred International, Syngenta,and BASF. According to an economic analysis commissioned by HFBF, the Hawaii seed industrycontributes approximately $144 million of economic activity to the state’s economy, including more than2,500 jobs. HCIA states that demand by farmers for hybrid corn has made Hawaii expanding seedindustry the number one agricultural commodity in the state. HCIA is registered with the State Ethics Commission as an organization which employs alobbyist. For the period March 1, 2011 through April 30, 2011 (the most recent reporting period),HCIA reported lobbying expenditures of $13,300, $11,200 of which was for “Entertainment & Events.” 2 HFBF is a nonprofit organization of approximately 2,200 farming families and is affiliatedwith the American Farm Bureau Federation. According to its website, HFBF’s purpose is to analyzeproblems and formulate action to ensure the future of agriculture, thereby promoting the well-beingof farming and the state’s economy. HFBF is registered with the Commission as an organization which employs a lobbyist. For theperiod March 1, 2011 through April 30, 2011 (the most recent reporting period), HFBF reported lobbyingexpenditures of $0. The last period in which HFBF reported expenditures relating to lobbying activitywas May 1, 2010 through December 31, 2010, reporting expenditures of $3,664.92. !
!Memorandum to LegislatorsJanuary 9, 2012Page 2 The invitation describes the event as a “celebration of Hawaii’s agricultural industryfeaturing our locally grown organic, conventional and genetically engineered produce andproducts.” The event is scheduled for Wednesday, January 11, 2012, on the lawn of theHawaii State Art Museum, from 5:30 p.m. to 8:30 p.m. From our discussions with Alicia Maluafiti, HCIA’s Executive Director, and DeanOkimoto, President of HFBF, we understand that the event will feature a variety of foodstations, each of which will feature locally grown or raised produce and products preparedby Chef Hiroshi Fukui, chef at the Hiroshi Eurasian Tapas restaurant. More specifically,the menu for the event includes the following: Big Island Baby Abalone “Casino” Marine AgriFuture sea asparagus and Wailea Agricultural Group heart of palm salad, roasted garlic aioli, shiso, tobiko, parmesan cheese, white truffle oil Red Wine Steamed Hawaiian Red Veal Cheek Nalo Farms cilantro pesto, yellow mustard aioli, Aloun Farms sweet corn succotash, Naked Cow Dairy truffle butter jus Bacon Wrapped Keawa Nui Farms Molokai Shrimp Green papaya salad, Waianae choi sum, sweet miso glaze, Kats Higa Farm green onion and ginger ragout Nalo Farms Micro Green Salad Ho Farms grape tomatoes, baby Japanese cucumbers, Keawa Nui Farms baby shrimp, shaved Wailea Agricultural Group heart of palm, Kamiya Gold papaya, angel hair potato, Hiroshi’s mustard sesame vinaigrette Crispy Skin Mari’s Garden Tilapia Shintaku haricot verts salad, Hanalei taro, roasted Hamakua pioppini mushrooms, saikyo miso-sansho peppercorn sauce, pickled red ginger, Nalo Farms micro shiso Long Steamed Shinsato Farms Pork Belly Torched Brie cheese, Ho Farms grape tomato salad, Big Island young ginger, adobo sauce Hawaiian Vanilla Bean & Puu Kane Farms Pineapple Panna Cotta Kula Country Farms strawberry ice, mango sorbet, Nalo Farms mintWe also understand that local wines and beer from local microbreweries will be served.The event is by invitation-only and at no cost to the invitees. HCIA estimates the fairmarket value, per person cost to be $50. As originally planned, HCIA expected officials from HCIA, HFBF, and the AmericanFarm Bureau Federation to offer very brief (5 minutes or less) remarks to the attendeesand intended to display information about the locally grown produce and products featuredat the various food stations on poster boards and in handouts.!!
!Memorandum to LegislatorsJanuary 9, 2012Page 3 In response to ethics concerns raised by our office, HCIA advised us, by letterdated January 3, 2012, of certain modifications to the event: (i) instead of an open bar,each attendee will be provided 2 drink tickets; (ii) “[f]armers, growers and ranchers willbe strategically placed at various tables so that guests can sit down and talk story withfarmers to learn more about their industry and how to work better together;” and (iii) every10 to 15 minutes, there will be brief presentations to discuss the various dishes, introducethe farmers, and to highlight specific opportunities and challenges experienced by farmers. As you know, the State Ethics Commission is mandated to liberally construe theethics laws to promote high standards of ethical conduct in state government. It is in thislight that the Commission interprets the gifts law, which expressly prohibits state legislatorsand employees from accepting any gift if it is reasonable to infer that the gift is intended toinfluence or reward official action.3 In determining whether or not a gift may be accepted,the Commission considers the following: (1) the value or cost of the gift; (2) therelationship between the donor of the gift and the recipient, including whether the donoris subject to official action by the recipient; and (3) whether the gift provides any “statebenefit,” including whether the gift will benefit the recipient in the performance of his or herofficial duties. Meals and invitations to other “food and drink” events are considered gifts and aresubject to the gifts law. The Commission has construed the gifts law, generally, to allowthe acceptance of meals and “food and drink” events valued at under $25. Meals and“food and drink” events valued at $25 or more generally may not be accepted unlessthere is a sufficient “state benefit” associated with the event, i.e., there is a reasonablerelationship between the event and the legislator’s or employee’s official duties.4 In applying the gifts law to “A Taste of Ag,” we considered that the value or perperson cost of this event was not under $25 and was therefore not within the range ofgenerally acceptable “food and drink” events. In fact, this particular event appeared to bea relatively “high end” or costly event in terms of the value of food and drink to be servedto invited guests. We also considered that the hosts of this event, the HCIA and the HFBF, are bothinvolved in lobbying activities before the legislature and both employ registered lobbyists.Both organizations and their members have interests that may be affected by official actionby invited members of the legislature.!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 3 Haw. Rev. Stat. § 84-11. 4 For more information about the types of gifts that may be accepted under the State EthicsCode, please refer to the State Ethics Commission’s publication, “Guidelines for Gifts Under the StateEthics Code.” The guidelines are available through the Commission’s website athttp://hawaii.gov/ethics/pubs_guides/gifts/GiftsGuidelines.pdf.!!
!Memorandum to LegislatorsJanuary 9, 2012Page 4 Finally, we considered whether this event provided a “state benefit” for legislators.We received information about this from both the legislator who contacted our office aboutthis event and the Executive Director of the HCIA. We were informed that by attending the event, a legislator could show support forthe local agriculture industry. While this is certainly laudable, our office has previouslyexplained that a desire to show support for an organization or group generally is not,by itself, sufficient to establish a “state benefit” for purposes of the gifts law. We were also informed that the event offered an opportunity for legislators to learnmore about issues facing the local agriculture industry. The HCIA described “a close nexusbetween the educational nature of this event and the official duties of invited guests,”including the chairs and vice chairs of the Agriculture, Water and Land, and “Money”committees as follows: 1. Agriculture Committee Chairs/Vice Chairs - because the right to farm including the various tools chosen by famers in order to sustain their operations are directly aligned with the success of farmers. 2. Water and Land Committee Chairs/Vice Chairs - because access to land and water are critical to the viability and sustainability of ag (farmers need both in order to farm)[.] 3. Money Committee Chairs/Vice Chairs - because if Hawaii does not address the failing infrastructure and our 100 year old irrigation systems, then ag will not survive. Events that are educational in nature may provide a stronger “state benefit” forpurposes of the gifts law. For example, state legislators and employees often requestethics advice from our office concerning invitations to attend conferences and seminars.Such invitations are often acceptable under the gifts law because of the educational valuethat they provide to legislators and employees in the performance of their official duties. With regard to “A Taste of Ag,” however, we were unable to find this kind ofeducational value or benefit from the event. The event appears to have been originallyplanned as a culinary showcase of dishes featuring local agricultural products. There wasno educational program to speak of for legislators and other guests at this event. Rather,the event appeared to be primarily a social event and an opportunity for invited guests tosample specially prepared dishes. We acknowledge that HCIA’s changes to the event’s format provide a betteropportunity for legislators and other state officials to meet and talk to farmers, growers,and ranchers about agriculture issues; however, those modifications notwithstanding,!!
!Memorandum to LegislatorsJanuary 9, 2012Page 5the event still appears to be primarily an upscale social or “goodwill lobbying” function.Although legislators and state officials no doubt benefit from meeting and talking to leadersand members of an important local industry, such as those associated with HCIA, HFBF,and the other co-sponsors, the Commission does not consider “networking” or “goodwilllobbying” to be a significant enough “state benefit” to outweigh the reasonable inferencethat a relatively costly “food and drink” event is being offered to influence or reward officialaction. Accordingly, absent a sufficient “state benefit,” we cannot reasonably conclude thatthe State Ethics Code allows legislators to accept an invitation to “A Taste of Ag.” Our advice in this situation does not prohibit legislators from attending otherevents at which they may meet and discuss agriculture issues with HCIA, HFBF, or othermembers of the agricultural industry. For example, the Commission generally interpretsthe gifts law to allow legislators to attend “meet and greet” events or “goodwill lobbying”events that are valued at under $25. In addition, educational conferences or seminars thatprovide information to legislators about agriculture issues may be acceptable under thegifts law even where the cost exceeds $25.5 Our advice is based on the information that has been provided to our office aboutthis event. You are welcome to provide us with additional information that may allow usto better understand the “state benefit” in your attendance at the event. If you havequestions or would like to discuss our position further, please do not hesitate to contact us.!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 5 Legislators who are offered payment of costs for them to attend educational conferences orsimilar events should contact the State Ethics Commission for advice.!!