HomeMy WebLinkAbout2018-01-08 Ltr to CM Sue Lee Loy Re Andy Levin Required to Reqister as Register as a Lobbyist
Joseph K. Kamelamela
Harry Kim
Corporation Counsel
Mayor
Renee N. C. Schoen
Assistant Corporation
Counsel
COUNTY OF HAWAI‘I
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 325 Hilo, Hawai‘i96720 (808) 961-8251 Fax (808) 961-8622
January 8, 2018
CouncilMember Sue Lee Loy
Hawai‘i County Council
25 Aupuni Street
Hilo, Hawai‘i 96720
Dear Council Member Lee Loy,
Re:Whether Andy Levin is Required to Registeras a Lobbyist
On January 3, 2018, at the Governmental Relations and Economic Development
Committee meeting, you opined that County of Hawai’iState Legislative Assistant, Andy
Levin, was required to register as a lobbyist pursuant to State law, and thathis failure to
do so suggested a lack of transparency. As you may recall, I respectfully disagreed
with your opinion, citing previous research conducted on the issue, and stated that he
did not have to register as a lobbyist because he was considered a County employee
under the 89-day employee contract.
Our further review of the relevant law related to lobbyist supports our prior
opinion on this matter. Hawai‘i State law requires every lobbyist to file a registration
form with the State Ethics Commission within five days of coming a lobbyist. Hawai‘i
Revised Statutes (HRS) Section 97-2(a). The registration requirement, however, is not
applicable to governmental employees acting in their official capacity. Section 97-2
(e)(2), HRS, statesas follows:
“this chapter shall not apply to . . . . ‘\[a\]ny federal, state, or county official
or employee acting in the official’s or employee’s official capacity, unless
the federal, state or county official, or employee contracts for the
1
services of a lobbyist.’”
Where acounty official or employee “contracts for the services of a lobbyist,” the
official or employee becomes the “employing person” and the lobbyist, who is not a
1
Section 97-1(2)(1)(A), Hawai‘i Revised Statutes defines a “Lobbyist” as any individual who. . . (A) Engages in
lobbying in excess of five hours in any month of any reporting period described in section 97-3; (B) Engages in
lobbying in excess of ten hours during any calendar year; or (C) Makes expenditures of $1,000 or more of the
person’s or any other person’s money lobbying during any reporting period described in section 97-3.
Hawai`i County is an Equal Opportunity Employer and Provider
Council MemberSue Lee Loy
Hawai‘i County Council
January 8, 2018
Page 2of 2
county official or employee, must then register as a lobbyist.Accordingly, given a plain
reading of the statutory provision, we again opine that Mr. Levin does not have to
register as a lobbyist because he is a county employee acting in his official capacity.
Ialso reviewed the Hawai‘i State Ethics Commission website for any decisions or
guidelines related to HRS §97-(2)(e)(2) as it pertains to Mr.Levin’s employment
contract. Finding no decision or guideline on point,on January4, 2018, I spoke with
Nancy C. Neuffer, an attorney with the Hawai‘i State Ethics Commission. Ms. Neuffer
confirmed that there were no Hawai‘i State Ethics Commission decisions or guidelines
directly related to Mr. Levin’s situation. Ms. Neuffer,nevertheless, determined that
Mr.Levin was exempt from registering as a lobbyist given the terms and conditions of
his 89-day employment contract, and the fact that he previously served as an Executive
Assistant from 2000 to 2008performing duties and responsibilities which also included
the tracking and monitoring of legislative bills.
The Hawai‘i County Code has an ordinance similar to State lawalso exempting
government employees acting in their official capacity from the lobbyist requirement.
Hawai‘i County Code, Section 2-91.3(5)(B) states that, “this section shall not apply to . .
. . ’\[a\]ny federal, state, or county official or employee acting in the official’s or
employee’s official capacity.”
Since State and County law doesnot require Mr. Levin to register as a lobbyist, I
do not believe there is a lack of transparency related to Mr. Levin and his 89-day
contract.In fact, prior to the execution of Mr. Levin’s employee contract, Mr. Levin
introduced himself and met with several staff members of the County Council as the
incoming Hawai‘i State Legislative Assistant. Moreover, Mr. Levin’s contract was, and
is, available for review as a public record. I hope that Mr. Levin and I responded to all of
the questions posed at the Governmental Relations and Economic Development
committee meeting.
Should you have any further questions or concerns on this matter, please do not
hesitate to contact me.
Sincerely,
Cathy Ferreira
2018.01.08 15:44:32
-10'00'
JOSEPH K. KAMELAMELA
Corporation Counsel
JKK:clf
Attachments
c: Mayor Kim
Managing Director Wil Okabe
Chair Poindexter & Council Members
Andy Levin, Hawai‘i State Legislative Assistant
From:Kamelamela, Joe
To:nneuffer@hawaiiethics.org
Cc:Ferreira, Cathy;Schoen, Renee;Okabe, Wil
Subject:Andy Levin"s 89 day contract-Employee Contract-Does he need to register as a lobbyist under Chapter 97, HRS
Date:Thursday, January 04, 2018 4:42:36 PM
Attachments:Andy Levin 89-Day Contract - 2018 Legislative Session.pdf
Aloha, Ms. Neuffer
I appreciate your call back and discussion on the above-referenced matter earlier this afternoon.
HRS Section 97-2(e)(2), states that the Lobbyist Chapter shall not apply to “\[a\]ny federal, state, or
county official or employee acting in the official’s or employee’s official capacity, unless the federal, state
or county official, or employee contracts for the services of a lobbyist.” A plain reading of that section
clearly states that a county official or employee acting in his/her official capacity does not have to register
as a lobbyist. Further, the section indicates that if that county official or employee “contracts for the
services of a lobbyist,” the official or employee becomes the “employing person” and the lobbyist, who is
not a county official or employee, must then register as a lobbyist. Given a plain reading of the statutory
provision, I had opined that Mr. Levin did not have to register as a lobbyist because he would be a county
employee acting in his official capacity. See attached Contract.
The Hawaii State Ethics Commission’s website did not have any decisions or guidelines that
would have provided any specific interpretation of HRS Section 97-2(e)(2) as it pertains to Mr. Levin’s
employment status with the County. During our discussion, you inquired as to whether the County would
determine Mr. Levin to be a county employee. You indicated that if Mr. Levin is a County employee, he
would not need to register as a lobbyist. As I indicated previously, Mr. Levin is a County employee. The
attached Contract, with Exhibits A and B, clearly states that he is an employee of the County. Exhibit B of
the Contract sets forth the duties and responsibilities of Mr. Levin, as an employee of the County. It
should also be noted that Mr. Levin had served Mayor Kim as an Executive Assistant, from 2000 to 2008,
where his duties and responsibilities also included substantially similar duties and responsibilities as
those described in Exhibit B of the Contract. Upon the above-stated disclosures, you too opined that Mr.
Levin was exempt from registering as a lobbyist.
Should you have any further questions or concerns, please contact me. Mahalo nui loa!!!
Joseph K. Kamelamela, Corporation Counsel
County of Hawai‘i
Office of the Corporation Counsel
101 Aupuni Street, Suite 325
Hilo, HI 96720
Office: (808) 961-8251
Cell: (808) 494-2195
E-mail: Joe.Kamelamela@hawaiicounty.gov <mailto:Joe.Kamelamela@hawaiicounty.gov>
Depr1ment of Finance F-111 (09/2015)
CONTRACT ROUTING FORM
Date: December 28,
Department: Corporation Counsel
Contact: Joseph Ke|annela X8251
(Name) (Telephone Exteinsion)
Name of Contractor: Andrew C. Levin 0/
(If none, complete Form V-8 and forward to Accounts for
Vendor Number: 05260 assignment of vendor number bJore processing contract)
Purpose /Title of Contract: To idservices Hawaii State Legislation Assistant �
��
u�|Ennp|oyrnent
[Iii PRC Approval Date (Employment):
Account No. to Charge: 010.131.5131.01.011 ~-
Inter -Government
l
|
ERC Approval Date (If Applicable):
Fiscal Year:
Amount of Contract: $ , rri nth FRESH Req. No.:
/
Procurement Approval: Contract No.:
For contracts requiring rnulti'y nnitnnent5, acceptance of federal funds or funds in a future FY:
Council Resolution Number: Date Approved:
(Attach copy of resolution)
Route to: [m1 Contractor (Review and sign contract before notary pub/ic)
Date completed & forwarded to next: �~
Z Department Head(s) (Signature(s) recommending apprvoy
Date completed & forwarded to next:
Z Human Resources (Director ofHuman Resources' certification,
required for a contract for services which are exempt pursuant to
HRS §76-77(7), (8) or(12) only. Directorof Hwnan Resources review
required for requests far exemption under HRS76-77(16))
Date completed & forwarded to next: � ^(
Purchasing Agent (Procurement review and reporting)
Date completed & forwarded to next:
F�1 Controller/Director�fFinon�e (Certificaof tion u�*fundsi
��[ � � yQl7
Date completed ��forwarded to next: —~~ — ° ^~ '
Z Corporation Counsel (Approve as to form and legality)
Date completed & forwarded to next: 11
��
�� Mayor (Review, notarized signature and date)
Date completed & returned to originating Dept:
RETURN TO DEPARTMENT REQUESTING CERTIFICATION
for issuance of notice to proceed and distribution of contract copies to
affected parties and Controller
After execution of contract, retain this form in procurement file with all required attachments
(Additional
Page 1 of 4
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Department of Finance F-111 (09/2015)
C+IKCKLIST FOR CONTRACTS
(For Informational Purposes Only— Not Required to be Completed)
Initial
Included in the contract:
Sec. 103D-310 (see also HAR §3-122-112) N/A
Sec. 104 prevailing wages for construction exceeding $2,000 N/A
Sec. 103-55 wage certificate requirement (services over $25,000) N/A
Inclusion of current applicable general conditions by reference N/A
Inclusion of federally mandated terms or use of federal forms if
federal funding involved N/A
Federal or State Grant funds utilized N/A
On the contract:
Departmental recommendation of approval
Notarized signature of authorized representative of contractor
Notarized signature of bonding agent (if applicable) N/A
Corporate seal of contractor (if applicable) N/A
Appropriate clause for procurement exemption under HAR
§3-120-4(g) (if applicable)
Appropriate clause regarding exemption from civil service
(if applicable)
Attached to contract:
Hawaii Compliance Express Certificate showing the vendor as
compliant. In accordance with HRS Section 103-53.
Bond (if non -construction or under $5,000, attach chief procurement
officer's approval to require bond)
N/A
N/A
Finance Director's certification of availability of funds N/A
Resolution of corporate or partnership authority N/A
Sec. 103-55 wage certificate (if services over $25,000) N/A
Insurance certificate(s) (if applicable) N/A
Sec. 103-55 wage certificate (if services over $25,000)
Other:
Date
After execution of contract, retain this form in procurement file with all required attachments Page 2 of 4
Department of Finance F-111 (09/2015)
PROCUREMENT INFORMATION
The information below is required so that Purchasing Division and Corporation Counsel can
determine if proper procurement procedures were followed in selection of contractor.
Bid No.:
Vendor selected by:
Competitive sealed bidding (IFB) (HRS §103D-302)
Competitive sealed proposals (RFP) (HRS §103D-303)
Professional services procurement (HRS § 103D-304)
(complete and attach Professional Services Data - Form F -111P)*
Small purchases (under $25,000) (HRS §103D-305)
Sole source procurement (attach approval) (HRS §103D-306)*
Emergency procurement (attach approval) (HRS §103D-307)*
Exempt from State Procurement Code:
®❑n❑ ❑❑❑
(IFB or RFP) Job No.:
*Attach
certified cost
Reason: Not subject to Procurement
Statutory/H.A.R. Authority: 103D-102(b)(2)(B)
Required Website Posting: State County
(Date) (Date)
Optional Advertising: ❑ Hawai'i Tribune -Herald ❑ West Hawaii Today
Date(s) advertised:
❑ Other:
Date of Pre -Bid Conference (if any):
Bid opening date or deadline for receipt of
proposals:
Number of
responses:
(If only one response, see Procurement Rules, Sec. 3-122-35 for IFBs or 3-122-59 for RFPs)
Was awardee lowest dollar offer? Yes ❑ No ❑
If no, explain award (use extra page if more space needed):
(Attach recap of responses to 1FB, RFP, or quotation requests)
I, Joseph K. Kamelamela
, am employed by the County of Hawai'i
(print name)
in the capacity of Corporation Counsel
(position)
information stated above is true and accurate in the best of my knowledge.
and hereby verify that the
X8251
Date)
(Signature}
(Extension No.)
After execution of contract, retain this form in procurement file with all required attachments Page 3 of 4
Department of Finance
Department Head Certification
Regarding Civil Service Exemption:
CHOOSE ONE ONLY!
F-111 (09/2015)
❑ I certify that to the best of my knowledge, this contract is for goods only and any services
provided are incidental to the delivery, installation and/or warranty/maintenance of said
goods.
•
Department Head
Date
Or
® I certify that to the best of my knowledge, services to be performed under this contract have
not been customarily and historically performed by Hawaii County civil servants.
apartment Head
1 71 v6/17
Date
Or
❑ I certify that the services to be performed under this contract are exempt from civil service
pursuant to §76-77(12), Hawai'i Revised Statutes.
Department Head
Date
(This box is NOT to be checked for exemption under §76-77(7), (8), or (12). For exemptions under
Section 76-77(7), (8) or (12) complete Attachment A, 8 or C of Department of Human Resources
Procedures on "Contracting Services and Civil Service Exemptions" and submit to Director of
Human Resources for approval with appropriate clause on signature page of contract.)
Or
❑ I certify that the services to be performed under this contract are exempt from civil
service pursuant to §76-77(16), Hawai`i Revised Statutes, as it is for positions or contracts
for personal services with private persons or entities for services lasting no more than one
year and at a cost of no more than $750,000.
Department Head Date
(Note: Attachment D of Department of Human Resources Procedures on "Contracting Services
and CMI Service Exemptions "must be completed and included with the Contract Routing Form
for review by the Director of Human Resources.)
(If more than one department or agency involved, complete a copy of this page for each.)
After execution of contract, retain this form in procurement file with all required attachments
Page 4 of 4
Attachment B
Effective 7116107
Required Information for Certification
Under §76-77, Hawaii Revised Statutes
Attach this page to your contract.
Note: Services to be exempt under §76-77(8), Hawaii Revised Statutes may not
exceed 90 days in length. An extension of 90 days is permitted for good cause,
but will require the same certification by the director as the original 90 -day
period. Only one extension is permitted.
1. Describe the services to be provided.
Legislative Assistant during the 2018 Hawaii State Legislative Session
2. Why do you believe this service can be accomplished within 90 days?
Duties and responsibilities are for a limited time period only and any additional
time would not benefit the county because the Legislative session would have
been concluded.
Attachment B prepared by (name): Cathy Ferreira
Phone No: 961-8251
CONTRACT FOR EMPLOYMENT
THIS CONTRACT is made and entered on DEC 21 2017 , by and between the
COUNTY OF HAWAII, a municipal corporation duly organized and existing under the laws of
the State of Hawai`i, whose principal place of business and mailing address is 25 Aupuni Street,
Hilo, Hawai`i, hereinafter referred to as "COUNTY," and Andrew C. Levin, whose mailing
address is P.O. Box 703, Volcano, HI 96785, hereinafter referred to as "EMPLOYEE."
That for and in consideration of TEN THOUSAND AND NO/100 dollars ($10,000.00)
per month, the EMPLOYEE agrees to provide the COUNTY services not to exceed forty (40)
hours per week as a Hawai`i State Legislative Assistant, commencing on January 3, 2018 and
terminating on March 31, 2018. Payment will be provided and deductions made in the event that
EMPLOYEE does not work the full pay period. EMPLOYEE shall be paid semi-monthly and
shall be subject to applicable federal and state taxes and all other required withholdings.
This Contract shall be subject to all additional terms, conditions and covenants and the
Statement of Duties and Responsibilities which are attached hereto as Exhibits A and B,
respectively, and which are hereby incorporated by reference and made a part hereof.
It is understood and agreed that any services to be provided in accordance with the terms
of this Contract may be terminated immediately, in whole or in part, upon a finding by the
COUNTY or any court or other binding authority of competent jurisdiction that these services
must be provided by public employees. It is further understood that should such a finding be
made, the COUNTY will not be liable under this Contract for any resulting damages, and such a
termination will not be considered a breach of this Contract.
It is also understood and agreed that the EMPLOYEE is bound by all provisions of the
Hawai`i County Code of Ethics and, as such, shall not engage in any activity which might
constitute a violation of the Code of Ethics.
IN WITNESS WHEREOF, the parties have caused this Contract to be executed on the
dates as set forth below.
EMPLOYEE:
ANDREW C. LEVIN
RECOMMEND APPROVAL:
COUNTY OF HAWAII
APPROVED AS TO AVAILABILITY OF FUNDS
IN THE AMOUNT AND FOR THE PURPOSE
SET FORTH HEREIN:
Corporation Counsel leDirector ollFinance, Co nt y of Hawai`i
Dated: / 7
Dated: DEC 2 9 2017
APPROVED AS TO FORM AND CERTIFICATION:
Corporation Counsel
Dated: 1-24 1'41l (7
The services described herein are temporary in
nature, not exceeding ninety (90) days. Recruitment
through normal civil service procedures is not
practicable. This certification is made pursuant to
§76-77(8), Hawai`i Revised Statutes.
Director of H • . esources
Department of Human Resources
Dated: /iZ
2
EXHIBIT A
ADDITIONAL TERMS, CONDITIONS AND COVENANTS OF EMPLOYMENT
1. EMPLOYEE is excluded from collective bargaining coverage under Hawai'i Revised
Statutes (HRS) Chapter 89-6(f)(7). EMPLOYEE shall not be entitled to vacation, sick leave,
or any other benefit not specifically identified in this contract.
2. EMPLOYEE is exempt from Civil Service (i.e., an "Exempt Employee") under HRS §76-
77(8).
3. EMPLOYEE shall perform the duties as shown in Exhibit B, and made a part hereof, under
the direction of the Mayor and Corporation Counsel of the County of Hawaii.
4. EMPLOYEE shall be provided a County issued cellular phone, a County work station, a
laptop computer, clerical support service, and paid travel to and from Oahu (including
overnight accommodations, if deemed necessary) to attend State legislative sessions or
meetings. All paid travel request must obtain prior written authorization directly from the
Mayor in advancement of travel.
5. EMPLOYEE shall prepare and submit a time sheet semi-monthly for employment
compensation.
6. This Contract is for personal services and cannot be assigned or delegated without the prior
written consent of the COUNTY.
7. Unless a new contract is entered, EMPLOYEE shall not be entitled to continue employment
after the completion of this Contract.
8. This Contract may be terminated without cause by either party upon ten (10) days' written
notice to the other party before the effective date of such termination.
9. The following is mandated to be included in all COUNTY contracts under Executive Order
No. 142. For purposes of this Contract, "contractor" is the EMPLOYEE:
a. The contractor shall comply with all requirements set forth in Federal and State laws
and regulations relative to Title VI of the Civil Rights Act of 1964, as amended, which
provide for non-discrimination in Federally assisted programs.
b. The contractor shall not discriminate against any employee or applicant for employment
because of race, ancestry/national origin, religion, color, disability, age, marital status,
military status, veteran's status, sexual orientation, lactation, arrest and court record,
citizenship, or any other classification protected by state or federal law. The contractor
shall assure that applicants are employed and that employees are treated during
employment without regard to race, ancestry/national origin, religion, color, disability,
age, marital status, military status, veteran's status, sexual orientation, lactation, arrest
and court record, citizenship, or any other classification protected by state or federal
law. Such action shall include, but not be limited to, the following: employment,
upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training.
The contractor agrees to post in conspicuous places notices to be provided by the
contracting officer setting forth the provisions of the nondiscrimination clause.
c. The contractor shall in all solicitations or advertisements for employees placed by or on
behalf of the contractor, state that all qualified applicants shall receive consideration for
employment without regard to race, ancestry/national origin, religion, color, disability,
age, marital status, military status, veteran's status, sexual orientation, lactation, arrest
and court record, citizenship, or any other classification protected by state or federal
law.
d. In the event of the contractor's noncompliance with the nondiscrimination clauses of
this contract, this contract may be canceled or suspended in whole or in part and the
contractor may be declared ineligible for further County contracts until such time that
the contractor, by satisfactory evidence, in good faith, ceases such discriminatory
practices or procedures.
e. The contractor who subcontracts any portion of the contract shall assure the County that
such subcontractor shall abide by the nondiscrimination provisions stated herein and
agrees that any subcontractor who is found in violation of such provisions shall subject
the principal contractor's contract with the County to be terminated or suspended
pursuant to Section (c) above.
f. The County may direct any bidder, prospective contractor, or subcontractor to submit a
statement in writing signed by an authorized officer, agent, or employee of the
contracting party that the signer's practices and policies do not discriminate on the
grounds of race, ancestry/national origin, religion, color, disability, age, marital status,
military status, veteran's status, sexual orientation, lactation, arrest and court record,
citizenship, or any other classification protected by state or federal law, and that the
terms and conditions of employment under the proposed Contract shall be in accordance
with the purposes and provisions stated herein.
I have read, understand, and agree to the above conditions.
EMPLOYEE
Date: Pi 2$/17
2
EXHIBIT B
STATEMENT OF DUTIES AND RESPONSIBILITIES OF EMPLOYEE
EMPLOYEE shall perform the following duties and responsibilities as provided below:
• Work with the Mayor and Corporation Counsel to coordinate legislative oversight during
the 2018 Hawai`i State Legislative session.
• Report directly to the Mayor and Corporation Counsel regarding legislative activity that
would impact the County's interest;
• Attend County strategy and planning meetings to provide appropriate consultation and
advice regarding proposed legislative activity that would impact the County's interest;
• Provide frequent updates of legislative activity to the Mayor and Corporation Counsel;
• Maintain a comprehensive bill profile that tracks all legislation relevant to the County's
interest;
• Review the bill synopsis daily for any legislation that might be relevant to the County's
interest;
• Regularly monitor committee schedules and prepare a weekly hearing schedule;
• Prepare and/or deliver testimony on County's behalf;
• Directly lobby the lawmakers on all County legislation, with an emphasis on County
priority issues;
• Communicate regularly with sponsors, committee chairs, and committee staff regarding
priority legislation and coordinate efforts;
• Help draft and place desired amendments to matters directly related to County's interest;
• If possible, be able to provide a hard vote count in committee on major legislation and
hard vote counts on the floor when legislation passes committee;
• If possible, be able to identify and target potential swing votes on key legislation;
• Upon conclusion of this contract, provide a thorough review and analysis of the
session (s) as it pertains to County's interests; and
• Fulfill such other duties as the Mayor and Corporation Counsel may assign from time to
time
I have read, understand, and agree to the above conditions.
EMPLOYEE
Date: / ?'/2-,// 7