Poinography!

April 30, 2009

What happens if the budget were vetoed?

Filed under: Hawaii State Politics — Doug @ 6:29 pm

Part I of II in a Poli-Sci-themed day of posts.

Embedded in this Star-Bulletin story is a very intriguing passage that is offered without further comment:

[Speaker] Say said [Governor] Lingle stopped by his office Tuesday morning to discuss the state budget and let him know she might veto the budget because of her concern with provisions in the bill that would limit her ability to transfer funds between programs.

Before I go on, there’s no way that a veto of the budget would not be overturned or (less likely) amended to a form that the Governor would not veto. So, with that established, her veto threat is best viewed as a political stunt.

Still, what if the budget were vetoed and the Lege did not override or amend the vetoed budget? Would the government shut down on July 1 when the new fiscal year begins? Would there be some sort of continuance of the previous budget? The Constitution doesn’t address the scenario explicitly, so my non-lawyer guess is that means no spending of state money (or, more specifically, no spending except what is authorized by non-vetoed legislation) could occur.

Going back to the Governor’s threat, what exactly is it about the fund transfer provisions in the budget that rises to the level of provoking a potential veto? I did a quick scan of the appearances of the verb “transfer” in the House and Senate drafts of the budget, but those appearances read more like permissive than restrictive language. Maybe something has happened at the ongoing budget conference meetings that is not reflected in those drafts. ??

Two-thirds majority? Don’t be fool(ed/ish)

Filed under: Hawaii State Politics — Doug @ 6:29 pm

Part II of II in a Poli-Sci-themed day of posts.

I’ve seen a few Twitter tweets today about an agreement reached during conference meetings on SB 1677 that would require the Lege to pass a concurrent resolution with a supermajority vote before the conclusion of any sale or transfer of state lands to non-state entities.

If this were a ConAm question, then I’d be impressed. It’s not a ConAm. I’m not impressed. Future legislators, with a simple majority, could simply pass new legislation to suspend, repeal, or carve out exemptions to SB 1677. The Legislature, for reasons that should be obvious, has no power to (durably) restrict its own future actions in this manner.

April 28, 2009

Hawaii County internet use investigation is not open-ended

Filed under: Uncategorized — Doug @ 7:29 pm

Just as Aaron Stene and Tiffany Edwards Hunt have heard from Hawaii County Corporation Counsel Lincoln Ashida in response to what they wrote on their blogs, Ashida has responded to my post, too.

I wrote:

Sounds almost reasonable, until you consider that the County may never (probably will never, if they are serious about curbing abuse) stop collecting these data. Unless there is a plan to halt internet access by County employees altogether at some point, the “proper timing” argument for the release of the data is, if not a red herring altogether, going to be a real challenge. Here’s why: the portion of the investigation that “includes sites currently being visited in order to establish trends” may reveal other alleged cases of abuse, which would lead to further “ongoing” investigations preventing the release of the data, which could again reveal other potential cases of abuse, ad infinitum. Long story short: investigations of this nature are never “complete.” Following Ashida’s argument to its logical conclusion, we’ll never have access to these data.

Ashida’s response:

1. We are looking at the period from January 2008 through December 2008. Even though subsequent data may be looked at to establish trends, we are mindful of statute of limitations concerns, and that will drive us to ensure closure of the investigation in order to generate charges, if any (with a referral to the Prosecuting Attorney if appropriate). Assuming there is a noncriminal violation (i.e., no internet gambling or private business use or anything that would constitute a penal offense; we anticipate this will be the vast majority of “cases” made), then the reports will be forwarded to the offending employee’s appointing authority for appropriate disciplinary action. At that point, normal UIPA standards would apply with respect to a department head (or Council representative) determining whether the records may be made public or not.

2. More on the “trends” I mention above, I doubt we will find much more probative evidence at this point, given the media coverage generated. I would assume offending employees have since stopped visiting any illicit sites (but you never know).

3. I’m sure you’re more interested in “when” you can expect the reports to be released or when the department head may be asked to produce them. I don’t want to make a commitment we cannot keep, but I will be meeting with Data System representatives on Wednesday (i.e. April 29) to develop an internal timeline for completion. We are proceeding one department at a time, and I am recommending the first set of departments be completed by the end of May 2009.

4. Regarding the UIPA standards I mention above, I am talking about the balancing of the public’s right to know against any significant privacy interest as defined by HRS Chapter 92F. Once the investigation is completed (each department) and there no longer is a basis to withhold the information based on the UIPA’s “frustration” exception, my recommendation would be to release the records.

Let me know if you need any more information.

The only questions I have at the moment are these:

What kind of internet use data are collected? How much detail is captured in the data (and how much would be released)? i.e. Does the County capture only a list of domain names visited, an exhaustive list of full-length urls and length of visit to each individual page, or something in between those extremes? After accounting for any possibly illegal activity, I am much less interested in tying any particular website visit to any particular employee than I am interested in knowing what amounts and what websites are considered “allowable” internet use with government equipment, on a government network, on government time.

While I have your attention, Mr. Ashida, I’d also like a list of IP addresses for the County network so that, by scrutinizing my server logs, I would be able to tell whenever County employees visit and/or leave anonymous comments on my blog. Heh.

April 26, 2009

When the internet goes away, then perhaps we can tell you what we know

Filed under: Hawaii Media,Neighbor Island Politics — Doug @ 11:02 am

I’ve been keeping a loose watch on the Hawaii County situation regarding an investigation of the internet activity of County workers. The County has data with details of where workers have been on the internet, but have refused to release the data to Councilmembers, to Stephens Media reporters, and to bloggers. The latest wrinkle is this message from the Corporation Counsel that attempts to explain why the data are withheld. Lincoln Ashida writes: 

This is what the County can disclose at the moment:

1. The records compiled by the Department of Data Systems are highly sensitive, and have not been shared outside of their department with any County department, agency or person, other than on a need to know basis. This is because many County officer and employees (including the Council) may be called as witnesses in future cases.
2. If the records are released prior to formal charges (administrative or criminal) being filed, the integrity of the case and investigation may be compromised. When I served as a prosecutor, such unlawful premature release of information would be cause for dismissal or other disciplinary action.
3. These records will ultimately be released, once all investigations are completed.

Some may wonder what the harm is if these records reveal only past internet sites visited. The reason this could harm future cases and the County is because:

1. The investigation includes sites currently being visited in order to establish trends. This also involves forensic examination of hardware and downloading of saved content.
2. Disclosing the records would identify particular individuals who may not be eventually charged administratively or criminally.

No doubt the public is entitled to view these records. The sole issue is one of timing. Once the investigations are completed and final decisions are made on administrative and criminal charges, the records will be released.

Wha?

Sounds almost reasonable, until you consider that the County may never (probably will never, if they are serious about curbing abuse) stop collecting these data. Unless there is a plan to halt internet access by County employees altogether at some point, the “proper timing” argument for the release of the data is, if not a red herring altogether, going to be a real challenge. Here’s why: the portion of the investigation that “includes sites currently being visited in order to establish trends” may reveal other alleged cases of abuse, which would lead to further “ongoing” investigations preventing the release of the data, which could again reveal other potential cases of abuse, ad infinitum. Long story short: investigations of this nature are never “complete.” Following Ashida’s argument to its logical conclusion, we’ll never have access to these data.

Grudging kudos to the Coporation Counsel office for deigning to respond publicly to the simmering story. I’m hoping that Ashida has a less cynical take on this than what I’ve laid out above. I’m open to hearing it if he does.

April 23, 2009

Repeal of tax credits is within bounds of Constitution, even if retroactively applied

Filed under: Hawaii State Politics — Doug @ 7:27 pm

The Senate balked at passing SB 199 CD1 which would suspend and amend certain tax credits, which led Representative Marcus Oshiro to suspend budget conference negotiations, according to the Advertiser. I don’t recall where I first read it, but a version of the argument that may have caused the Senators to reconsider the adjustments is posted at Hawaii Reporter . The crux of the argument from the Hawaii Science and Technology Council (a trade association) is:

BILL IS UNCONSTITUTIONAL.

Bill reduces the investor credit from 100% to 90%. It is unconstitutional because it retroactively restricts the rights of investors to claim Act 221 investment tax credits for past investments made in years prior to 2009. This is because Act 221 requires investors to wait 5 years to claim all of their investment tax credits for investments made in the first year. Therefore, this bill restricts investors rights to claim credits for investments that may have been made as far back as 2005. Additionally, the credit reduction would apply to taxable years beginning January 1, 2009.

THE BILL HARMS INVESTORS AND WILL EXPOSE THE STATE TO LITIGATION

Applying this restriction retroactively to past year investments will trigger lawsuits from many investors for potentially hundreds of millions of dollars against the state. Eliminates any carryover for credits generated between Jan. 1, 2009 and Dec. 31, 2010, including credits generated from past investments made from years prior to 2009.

This argument is not compelling. States and the federal courts (to include SCOTUS) have ruled that retroactive tax increases are Constitutional. It may not be “fair” to renege on those who had acted in a certain way in order to obtain a tax advantage, but it’s legal. So says the Heritage Foundation, the Oregon Courts, and (from that Oregon link) the U.S. Supreme Court:

Legislation adjusting the benefits and burdens of economic life are presumed constitutional, even when retroactive. Usery v. Turner Elkhorn Mining Co., 428 US 1, 96 S Ct 2882, 49 L Ed 2d 752 (1976). The standard set forth by the United States Supreme Court for application of the Due Process Clause to retroactive legislation merits repeating.

“Provided that the retroactive application of a statute is supported by a legitimate legislative purpose furthered by rational means, judgments about the wisdom of such legislation remain within the exclusive province of the legislative and executive branches[.]
“* * * * *

“[R]etroactive legislation does have to meet a burden not faced by legislation that has only future effects. * * * But that burden is met simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose.” Pension Benefit Guaranty Corp. v. Gray & Co., 467 US 717, 729-30, 104 S Ct 2709, 81 L Ed 2d 601, 611 (1984).

Hmmm. This all sounds rather similar to the legal canards that contributed to (and/or provided a pretext for) the failed vote to recall the civil unions bill. I wonder if the same principals (and/or political prinicples) are involved…

April 21, 2009

Surveillance camera fail

Filed under: Hawaii Media,Honolulu Politics — Doug @ 8:02 pm

The Advertiser notes a recent attack in Chinatown occurred in an area subject to video recording yet did not yield any video evidence. The police and prosecutors claim there were no recordings made of the crime, yet the article goes on to say that new footage was [is?] routinely recorded over old footage. [Allegedly the media are re-used before anyone bothers to read the police blotter? Genius!]

Remember when HPD was looking for volunteers to monitor these cameras? (There’s a post on that topic in the pre-crash archive somewhere…) Well, that effort didn’t pan out, they are still looking for volunteers, and now we see the cameras revealed as a example of security theater.

A critique for Mr. Dooley: I notice that law enforcement is simply asserting that there was no recording of the incident. That deserves some explanation, doesn’t it? Are the cameras in operation 24/7, or not? The possibility that the records were destroyed intentionally would certainly create a “reasonable doubt,” in my mind, if I were a juror when this case goes to trial…

April 7, 2009

311 pages of inequality – courtesy of Senator Espero

Filed under: Hawaii State Politics — Doug @ 8:25 pm

After soliciting a copy from Senator Espero, and after three evenings of effort, I offer the following crude digest of his 311-page draft to revive the Civil Union bill. However, after all this work, today comes news that there is at least one other alternative draft being circulated (by which Senator[s], if any, I don’t know) which is much more brief. And the red shirted opponents are already strategizing on how to respond. [I thought Dennis Arakaki was a rather progressive guy when he was in the House. Apparently not. What happened?!]

Espero’s bill seems to go from start to finish through the HRS, searching out instances where marriage is found, and making amendments to include civil unions in (some of) those laws. Because it takes this piecemeal approach instead of the more broad “civil unions have the rights of marriage” approach found in the previous incarnations, numerous rights are excluded simply because they are only found in case law, or in session law, or in administrative rules, etc. It’s a messy way to go about it, and Espero has, if follows, made a mess of it.

I have another document that catalogs all of the places where the term “marriage” is in the HRS, but I have yet to cross-reference it to Espero’s draft. I figured I would at least publish this digest before the whole issue dies, and continue working on comparing the draft to the other document.

After completing the digest I notice that Espero’s draft, while incrementaly better than the status quo, does not come close to replicating what comes to mind when one thinks of all the rights and privileges of marriage. If I tried to describe “marriage” to you only by means of the topics included in this bill, you’d be forgiven for not being eager to enter into it. Unless “marriage” currently meant even fewer rights and privileges than are in the draft… cf. reciprocal beneficiary status.

This is a long post, so click the link to see the gory details. Probably more than a few typos. Forgive me, but I have had enough for today, I’ll correct them if/as they turn up.

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