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Panel: Council’s ConAm flyer is campaign spending

County funds used to send what some see as an ad opposing a ‘vague’ ballot measure

The Campaign Spending Commission is asking the Maui County Council to register as a ballot issue committee for allocating $50,000 on a “public education” flyer addressing a state constitutional amendment.

“It is making an expenditure for what I consider to be an ad, and like any political spending, if you spend over $1,000 you have to register and report with us,” said Gary Kam, general counsel for the commission.

Kam said a letter asking the county to register had been mailed out Tuesday afternoon and would likely arrive Thursday.

Groups that spend more than $1,000 on advertising related to a ballot issue must register as a ballot issue committee, which “can receive contributions or make expenditures only for or against any issue appearing on the ballot,” explained commission Executive Director Kristin Izumi-Nitao. These committees can’t give money to candidates. And, they must terminate their registration within 90 days after the election in which the issue appeared on the ballot.

The flyer showed up in resident mailboxes sometime after the primary election, printed with the question set to appear on the Nov. 6 general election ballot: “Shall the Legislature be authorized to establish, as provided by law, a surcharge on investment real property to be used to support public education?”

While there was no mention of who paid for the flyers, they bore the council’s address, signature graphics and the names of all the council members.

The flyer listed questions about the measure, including:

• Will funds be required to go only to K-12 schools?

• Will county services be impacted?

• What are the state revenue sources?

• How does the state currently fund the DOE?

• Will my rent or property taxes change?

The flyer then proceeded to answer the questions with facts about the state Department of Education as well as county and state funds. However, one Wailuku resident who received it said it was clearly skewed against the proposed surcharge.

“It’s blatantly obvious they were trying to influence the county with county money,” said Justin Hughey, who brought the flyer to the attention of the spending commission.

Whether the council’s flyer aimed to sway voters one way or another is up for debate, but Hughey pointed out that council members were clearly not fans of the measure.

Council Chairman Mike White said during a Sept. 4 Budget & Finance meeting that it would give the state a “blank check” to come after county funds. Council Member Kelly King was concerned that the tax would have unintended consequences on homeowners, while Council Member Alika Atay pointed out that the state has not given the county its fair share of taxes in the past. And, Committee Chairman Riki Hokama said the county already supports education through taxes and county facilities.

In August, all four Hawaii counties sued to block the measure, which they argued was misleading and vague. The Hawaii Supreme Court essentially agreed and invalidated the measure Oct. 19, though it was too late to remove it from the ballot. Any votes for or against it on Nov. 6 will not be counted.

Kam said it’s not up to the spending commission to decide whether the council improperly used public funds; that’s more of a question for ethics officials. The spending commission’s job is to guarantee transparency with regards to campaign spending.

However, Kam said the way the facts are written on the flyer makes it clear the council opposes the issue — a conclusion he came to before watching the meetings where members spoke against it.

For example, Kam pointed to a bullet point that states “the proposed amendment language does not guarantee a net increase in the Department of Education’s budget, teacher salaries, or educational programs.” The flyer also states that “the Legislature has not defined ‘surcharge’ or ‘investment real property’ so the impact to each taxpayer is unknown.”

However, White said Monday that the flyer was just stating the facts. He said while council members may have opinions during meetings, “we feel that we did a fair job” ensuring the flyer was educational and not advocating any one position.

“I guess somebody can question that, but we feel that it’s an appropriate use, especially when the constitutional amendment is something that was very misleading,” White said.

He added that “when you have an issue where there is unanimous agreement that it is an item that is horribly contrary to the interests of the county, that I think the public would expect us . . . to defend the county.”

White estimated that the council spent less than $25,000 of the $50,000 it allocated for the education materials, but much more than $1,000, which is the minimum threshold for registering as a ballot issue committee.

White was unsure how the council would respond.

“At this point it’s the (commission) staff’s opinion, and we don’t feel that we were taking a position,” White said. “We don’t feel we were advocating, so we don’t think it’s appropriate for us to have to file or register. The piece that we put out was all educational, and actually the questions that we were asking were very similar to the ones the Supreme Court ended up asking.”

However, White added that “if when we go to the commission, the decision is that we should (register), then we certainly will.”

Sara Gadarian, member of the Maui County Board of Ethics, said Monday that it’s hard to pin the council’s actions on any particular violation in the county charter. Many of the ethics laws prevent officials from using public resources for personal gain. In this case, where is the personal gain? Gadarian wondered.

While the introduction to the code of ethics does say that “elected and appointed officers and employees shall demonstrate by their example the highest standards of ethical conduct,” Gadarian said that might be too vague to use in this case.

However, Gadarian added that “it doesn’t hurt if somebody wants to put in a complaint.” She said nobody had filed a complaint as of Monday. The board could generate its own complaint, but that would require three members of the board to decide that some action should be taken.

Hughey is debating whether to file a complaint. He feels strongly that the council was in the wrong.

“They can’t use county money to influence voters,” he said. “They can do it all they want with op-eds or their own mailers, but they can’t do it with county money.”

* Colleen Uechi can be reached at cuechi@mauinews.com.