HOUSE OF REPRESENTATIVES

H.B. NO.

2748

THIRTIETH LEGISLATURE, 2020

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to government.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  The legislature finds that the people of Hawaii expect and deserve a government that will work in their best interest, free from corruption or undue influence.  Unfortunately, from time to time in democracies around the world, some government leaders and employees in positions of trust are found to have made decisions in their own best interest, rather than those of the people they serve.

     Few countries have dealt with corruption as well as Singapore, where the government once faced significant corruption and scandal.  Singapore has since adopted strict penalties for corruption and strong incentives to prevent it.  Those found guilty of corruption in Singapore can now face fines, forfeiture of benefits, and time in prison.  To deter bribery and corruption, Singapore pays government employees competitive salaries, some of which are directly benchmarked to sixty per cent of the median income of the top salary earners in Singapore.  These competitive benefits are designed to deter the need for underpaid workers to succumb to bribery, and to attract talented leaders to public service who would otherwise earn significantly more by remaining in the private sector, resulting in better leadership benefitting the people of Singapore.

     Strong penalties and competitive benefits have resulted in the recruitment of talented leaders less likely to succumb to bribery or corruption.  These reforms have catapulted Singapore forward and today the country is consistently rated among the least corrupt nations in the world.

     The legislature further finds that in Hawaii, instances of corruption cannot be tolerated by government leaders or employees.  Recent cases of corruption demonstrate that significant and meaningful reforms are necessary to prevent corruption or bribery to protect the public interest in the future.  These include stronger penalties, including the loss of pension benefits, for government leaders and employees found guilty of corruption, and competitive salaries to attract talented workers to public service that would otherwise earn more by remaining in the private sector.

     The purpose of this Act is to:

     (1)  Authorize the forfeiture of certain employees' retirement system benefits, pursuant to court order, for state or county employees and designated beneficiaries who are convicted of an employment-related felony;

     (2)  Make ethics code violations a class A felony for government leaders;

     (3)  Increase the offense of bribery to a class A felony for government leaders;

     (4)  Require the commission on salaries, in making its salary recommendations for government leaders, to consider competition with private sector equivalents and the deterrence of corruption and bribery by persons appointed to those position; and

     (5)  Create a task force to investigate the prevention of corruption and bribery, including establishing heightened penalties and salaries that are competitive with private sector equivalents for all other government employees not subject to the commission on salaries.

     SECTION 2.  Chapter 88, Hawaii Revised Statutes, is amended by adding a new section to subpart C of part II to be appropriately designated and to read as follows:

     "§88-     Forfeiture of benefits; felony convictions.  (a)  If a member, former member, or retirant is convicted of a felony and the court finds that, by a preponderance of the evidence, the felony is related to the employment of the member, former member, or retirant by the State or any county, the court may decree a civil penalty, pursuant to section 706-605(8), of forfeiture by the member, former member, or retirant of all or a portion of any:

     (1)  Interest;

     (2)  Hypothetical account balance in excess of the amount representing any employee contributions made by or on behalf of the member, former member, or retirant;

     (3)  Pension;

     (4)  Annuity; or

     (5)  Retirement allowance,

to which the member, former member, or retirant may otherwise be entitled under this chapter; provided that upon the death of the member, former member, or retirant, the designated beneficiary of the member, former member, or retirant may receive benefits to which that beneficiary would otherwise be entitled under this chapter; provided further that the designated beneficiary was not also convicted of a felony based on the same set of circumstances as the member, former member, or retirant penalized under this section.

     (b)  Upon receipt of a certified copy of the order decreeing forfeiture, the system shall comply with the order and shall reduce, suspend, or deny payment to the member, former member, retirant, or designated beneficiary, if applicable, as provided in the order until such time as the system receives a certified order to:

     (1)  Increase, resume, or make payments to the member, former member, retirant, or designated beneficiary; or

     (2)  Quash or reverse the decree of forfeiture.

The system shall not be required to make inquiry into the propriety of the order decreeing forfeiture or recoup any payments made to the member, former member, retirant, or designated beneficiary prior to receipt by the system of the order decreeing forfeiture.

     (c)  For the purposes of this section, a felony is "related to the employment" of an employee of the State or a county if the employee uses or attempts to use the employee's official position to commit the felony, including:

     (1)  Felonies in which state or county time, equipment, or other facilities are used in the commission of the felony;

     (2)  Bribery;

     (3)  Embezzlement, theft, or other unlawful taking, receiving, retaining, or failing to account properly for, any property or funds that belong to the State or any county or any department, bureau, board, or other agency thereof; or

     (4)  A felony committed against a person over whom the employee, in the course of the employee's duties, exercises custody or supervision.

     (d)  This section shall not impair or diminish benefits accrued prior to the effective date of Act    , Session Laws of Hawaii 2020.  This section shall not apply to felonies committed prior to the effective date of Act    , Session Laws of Hawaii 2020.

     (e)  This section shall not apply to accrued retirement benefits that are non-forfeitable pursuant to sections 88-73(f), 88-281(g), and 88-331(f)."

     SECTION 3.  Section 26-56, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  The commission shall review and recommend an appropriate salary for the governor, lieutenant governor, members of the legislature, justices and judges of all state courts, administrative director of the State or an equivalent position, and department heads or executive officers and the deputies or assistants to the department heads of the departments of:

     (1)  Accounting and general services;

     (2)  Agriculture;

     (3)  The attorney general;

     (4)  Budget and finance;

     (5)  Business, economic development, and tourism;

     (6)  Commerce and consumer affairs;

     (7)  Defense;

     (8)  Hawaiian home lands;

     (9)  Health;

    (10)  Human resources development;

    (11)  Human services;

    (12)  Labor and industrial relations;

    (13)  Land and natural resources;

    (14)  Public safety;

    (15)  Taxation; and

    (16)  Transportation.

     The commission shall not review the salary of any position in the department of education or the University of Hawaii.

     The commission may recommend different salaries for department heads and executive officers and different salary ranges for deputies or assistants to department heads; provided that the commission shall recommend the same salary range for deputies or assistants to department heads within the same department; provided further that the appointing official shall specify the salary for a particular position within the applicable range.  In making its salary recommendation for each position, the commission shall consider competition with private sector equivalents and the deterrence of corruption and bribery by any person appointed to that position.

     The commission shall not recommend salaries lower than salary amounts recommended by prior commissions replaced by this section."

     SECTION 4.  Section 84-19, Hawaii Revised Statutes, is amended to read as follows:

     "§84-19  Violation.  (a)  Any favorable state action obtained in violation of the code of ethics for legislators or employees and former employees is voidable in the same manner as voidable contracts as provided for under section 84-16; and the State by the attorney general may pursue all legal and equitable remedies available to it.

     (b)  The State by the attorney general may recover any fee, compensation, gift, or profit received by any person as a result of a violation of the code of ethics by a legislator or employee or former legislator or employee.  Action to recover under this subsection shall be brought within one year of a determination of such violation.

     (c)  [Any] Subject to subsection (d), any violation of this chapter by an employee, candidate for election to and elected delegate to the constitutional convention shall be punishable only in accordance with the code of ethics adopted by the constitutional convention.

     (d)  Any violation of this chapter by an employee whose salary is subject to recommendation by the commission on salaries pursuant to section 26-56 shall be guilty of a class A felony."

     SECTION 5.  Section 710-1040, Hawaii Revised Statutes, is amended to read as follows:

     "§710-1040  Bribery.  (1)  A person commits the offense of bribery if:

     (a)  The person confers, or offers or agrees to confer, directly or indirectly, any pecuniary benefit upon a public servant with the intent to influence the public servant's vote, opinion, judgment, exercise of discretion, or other action in the public servant's official capacity; or

     (b)  While a public servant, the person solicits, accepts, or agrees to accept, directly or indirectly, any pecuniary benefit with the intent that the person's vote, opinion, judgment, exercise of discretion, or other action as a public servant will thereby be influenced.

     (2)  It is a defense to a prosecution under subsection (1) that the accused conferred or agreed to confer the pecuniary benefit as a result of extortion or coercion.

     (3)  For purposes of this section, "public servant" includes in addition to persons who occupy the position of public servant as defined in section [710-1000], persons who have been elected, appointed, or designated to become a public servant although not yet occupying that position.

     (4)  [Bribery] Subject to subsection (5), bribery is a class B felony.

     (5)  Bribery is a class A felony if the person who commits the offense of bribery pursuant to subsection (1)(b) is a person whose salary is subject to recommendation by the commission on salaries pursuant to section 26-56.

     (6)  A person convicted of violating this section, notwithstanding any law to the contrary, shall not be eligible for a deferred acceptance of guilty plea or nolo contendere plea under chapter 853."

     SECTION 6.  (a)  There is established a public employee corruption and bribery task force under the state ethics commission.

     (b)  The task force shall consist of thirteen members and shall include:

     (1)  The executive director of the state ethics commission, or the director's designee, who shall serve as the chair of the task force;

     (2)  Two members appointed by the president of the senate;

     (3)  Two members appointed by the speaker of the house of representatives;

     (4)  Two members appointed by the chief justice of the supreme court;

     (5)  Two members appointed by the governor;

     (6)  Two members invited by the chair of the task force to represent public sector labor unions; and

     (7)  Two members invited by the chair of the task force to represent community groups or non-profit organizations whose focus is on good government or transparency in government.

     (c)  The task force shall investigate the prevention of corruption and bribery among public servants not subject to the commission on salaries.  Specifically, the task force shall focus upon:

     (1)  Increasing penalties for government employees in positions whose salaries are not subject to recommendation by the commission on salaries but who, based upon the task force's determination, occupy positions of influence in government affairs and violate the law in their official capacities; and

     (2)  Adjusting salary levels of those government employees identified in paragraph (1) to maintain competition with private sector equivalents in order to deter the persons in those positions from engaging in bribery and corruption.

     (d)  The members of the task force shall serve without compensation.  No member of the task force shall be made subject to section 84-17, Hawaii Revised Statutes, solely because of that member's participation on the task force.

     (e)  The state ethics commission shall provide administrative and clerical support required by the task force.

     (f)  The task force shall submit a report of its findings and recommendations, including any proposed legislation, to the legislature no later than twenty days prior to the convening of the regular session of 2021.

     (g)  The task force shall dissolve on June 30, 2021.

     SECTION 8.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 9.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 10.  This Act shall take effect upon its approval; provided that section 2 of this Act shall take effect upon the ratification of a constitutional amendment requiring a court to order the board of trustees of the employees' retirement system to withhold all or a portion of a public employee's benefits when that court sentences that public employee for a felony offense relating to that public employee's duties.

 

INTRODUCED BY:

_____________________________

 

 

 

 


 


 

Report Title:

Employees' Retirement System; Commission on Salaries; Bribery; Task Force

 

Description:

Authorizes forfeiture of certain employees' retirement system benefits, pursuant to court order, for state or county employees and designated beneficiaries who are convicted of an employment-related felony.  Makes ethics code violations a class A felony if the salary of the employee who commits the offense is subject to the recommendation of the Commission on Salaries.  Increases the offense of bribery to a class A felony if the salary of the public servant who commits the offense to recommendation by the Commission on Salaries.  Directs the Commission on Salaries to consider the deterrence of corruption and bribery by persons appointed to those positions.  Creates a task force to investigate avenues to prevent corruption and bribery issues among public servants in positions of influence.

 

 

 

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