Ige Includes 30 Bills on List of Intended Vetoes
June 27, 2022, 7:00 PM HST
Gov. David Ige on Monday, June 27, informed state lawmakers about his intent to veto several of the measures they passed during the 2022 state legislative session.
Ige, during a news conference, said he has a list of 30 bills he intends to veto; there were a total of 343 measures passed this year by the state Legislature. He has until July 12 to make a final decision on whether he will veto them or allow them to become law.
Putting a measure on the list does not mean he will veto it, but Ige cannot veto any bill not included on the list or that he did not notify the Legislature about. The list provides a guidepost for which measures could be vetoed.
The governor said several factors went into his decision on the 30 measures in question, including legal considerations, program effectiveness and compliance issues.
There also are two bills on list that could contain line item vetoes for specific appropriations, including overappropriation of federal funds: House Bill 1600, which relates to the state budget, and Senate Bill 2076 relating to broadband service infrastructure.
“In addition, we must operate within the federal maintenance of effort requirements contained in the American Rescue Plan Act. This requires that we maintain proportionate spending for public education and the University of Hawaiʻi.”
One of the bills Ige specifically mentioned during the news conference is SB3089, which amends the emergency powers of the governor.
“This bill interferes with the governor’s duties and legal obligations to provide for the public health, safety and welfare by limited the ability to determine the duration of an emergency,” Ige said. “Hawaiʻi led the country in our pandemic response, in no small part because of the process we have in place — the way the counties and state and federal partners work together to keep our community safe. Importantly, the counties lead our emergency management activities and they are supported by state and federal government.”
The governor said SB3089 would delay county emergency response by forcing mayors to wait to get approval before they could issue emergency proclamations and also jeopardize counties’ ability to get disaster relief funds.
He said when responding to a question from the media that the focus of emergency response should be county driven. The concern he heard from the state’s counties is that SB3089 would require prior approval from the governor before mayors could take emergency actions they think are necessary, especially during times of natural disaster.
He and his staff continue to go through the measure and get advice from legal experts. He also understands why one chief executive would not want to have to seek approval from another executive to take action they think is important and necessary to keep their community safe.
“As seen with the pandemic, having the flexibility to issue emergency proclamations to maintain the safety of our community was pivotal for the state of Hawaiʻi,” Ige said.
Another measure in Ige’s crosshairs is SB2510, which is related to renewable energy. The bill establishes a state energy policy that requires at least 33.33% of renewable energy to be generated by firm renewable energy.
“This bill would jeopardize our state’s move to renewable energy,” the governor said. “My office received 1,600 communications in opposition to the comments of this bill, which I believe speaks to the passion that we all have here in Hawai’i for renewable energy. We shouldn’t waste our time on this kind of legislation if we hope to exist in a clean energy future. For the sake of our state and our children, our commitment has been to self-sufficiency, especially in energy.”
Ige has often stated the state’s goal is to generate 100% of power from renewable, clean energy sources by 2045. Hawaiʻi was first state in nation to make that pledge and more than dozen states have since followed suit.
“This bill would prevent our achieving that goal,” he said Monday. “This bill is not in the people’s best interest. It pits communities, workers and renewable energy technologies against each other.”
Ige said the flaws of SB2510 are too many for him to list, but he highlighted a few.
The governor said the bill places limits on renewable energy and impedes opportunities for innovation in efforts to reduce the state’s reliance on fossil fuels. It also mandates percentages of renewable energy, overriding the expertise of state energy agencies, the state Land Use Commission and the state Land Board.
“The effect of the limitations the bill places on renewable energy could potentially shutdown most projects currently underway,” Ige said. “Some of our counties would automatically be out of compliance right away if this law were it to be enacted.”
As an example, he said the bill would prohibit a project currently out for requests for proposals on Lanaʻi that would take the island to 98% clean, renewable energy use within the next 12-18 months, also reducing the cost of electricity for every family on the island by an average $130 per month.
“Senate Bill 2510 is not guidance, it is a mandate in black and white, but vaguely written, leaving everyone unsure of how to achieve the minimum and maximum percentages,” Ige said. “At a time when most of us feel the effects of rising energy costs directly in our pockets, we should be encouraging the development of renewable energy. We should not be discouraging the development and investment in energy technologies. This bill will slow our progress towards clean energy goals. It also means many renewable projects in the pipeline now might have to wait until the minimum percentages are met before the could come online. That means families and businesses who have been waiting to lower their electricity bills might have to keep waiting, which could be years.”
He added that the bill’s definition of firm energy ignores and would undermine future innovative combinations of technology, such as a West Kauaʻi energy project that provides power from solar and hydroelectric sources.
HB2424 would expand the investigative authority of the state Department of Human Services for families receiving adoption or permanency assistance funds from the state. It, too, is on Ige’s intended veto list.
“Let me be very clear. I strongly support the intent of this bill, which is to give more resources and authority to our Child Welfare Services division to ensure that our keiki are safe,” Ige said. “As a community, we have an obligation to every child to provide a safe, stable and loving home. However, this bill has serious legal concerns.”
The governor said the measure requires monitoring and surveillance of all families who have adopted or taken guardianship of former foster children, essentially making it so those families can never live free of government intrusion in their lives, “a right which all other families often take for granted.”
“Although the trauma experienced by the community over the loss of a former foster child is real and cannot be dismissed, the solution cannot be to violate the constitutional privacy rights and basic dignity of every family that has taken in and provided love and stability to a former foster child,” Ige said.
He added that the expanded authority could also be used by a child’s abusive biological parent to initiate repeated investigations of the child’s new family in an effort to disrupt the child’s adoptive home, preventing them from ever feeling safe and stable in a new home.
The bill also was amended without notice to the public or the opportunity for the public to provide input, including from adoptive families and former foster children. Ige urged legislators to pursue the issue again during their next session to find a better solution to provide a safe environment for children. He also wants to make sure advocates and community members can participate in process.
“I am hopeful that further legislative work will result in a measure that can provide a safe environment for all our children,” the governor said.
Answering a question from the press, Ige said his overall concern about HB2424 is that it tries to legislate a solution to the issue, but creates unintended consequences, one of which is that it would subject all foster parents and those who adopt children to scrutiny for as long as they have children in their homes.
Yes, there are tragic situations that everyone wants to avoid, he’s just not certain the balance represented in HB2424 would get the state to a better place in the care of children.
One measure Ige was asked about Monday by the press that was not included on his intended veto list was HB2024, which deals with the management of Maunakea on the Big Island.
The governor said there certainly are some concerns that have been expressed about the bill, but he did have the opportunity to speak with legislators and advocates about the measure and understands they think a new authority should take responsibility for management of the mauna. He thinks the University of Hawai’i has done a good job, but recognizes some in the community think it’s time for someone else to take on the master lease.
Ige said while HB2024 might not be a perfect solution and there are specific issues that need to be addressed for a new authority to be successful, he looks forward to working with the Legislature to appoint members to the new board who are the best for the job while continuing to support astronomy and moving forward with the best way to manage Maunakea.
Other bills included on Ige’s possible veto list that he spoke about during Monday’s news conference include:
- HB1147, which appropriates funds to the Hawaii Tourism Authority, the Convention Center special fund, the state Office of Planning and the University of Hawaiʻi. Ige said this bill was significantly amended in conference committee and there was no opportunity for public input. He supports continued funding for HTA, but thinks HB1147 violates the gut and replace prohibition put in place by a recent Hawai’i Supreme Court ruling. As such, other mechanisms to support tourism and HTA will be explored.
- HB1567 eliminates the use of monetary bail and requires defendants to be released on their own recognizance for certain nonviolent offenses. The governor said the bill does not adequately address several important issues, including the need to secure the appearance of defendants. The bill also includes the release of defendants who might pose a danger to public safety and deprives judges the ability to exercise discretion on a case-by-case basis when determining appropriate bail amounts.
- HB 1570 would address the state’s youth vaping epidemic by banning the sale of flavored tobacco products. Ige said there were late amendments to this bill that exempted certain products approved by the U.S. Food and Drug Administration, essentially allowing hundreds, if not thousands, of tobacco products to avoid the ban, effectively rendering the measure useless and counter to its original intent. In addition, the bill contains subjects that go beyond its title and could violate the state Constitution.
- HB1705 allows the state Department of Agriculture to extend agricultural park leases. The governor said the program is meant for startup and other small farm operations so they can become commercially viable — it is not meant to be a permanent space for lessees. Ige said many of the current lessees have had leases for close to 55 years and there is a current waitlist of more than 200 applicants for new leases in ag parks. The measure also extends old leases by another 30 years, which could be repeated indefinitely, essentially granting close to fee-simple ownership of the lands.
- HB1980 permits but does not require or prohibit Medicaid, health insurers, mutual benefit societies and health maintenance organizations to cover telephonic behavioral health services under certain circumstances. it also clarifies that telephonic services do not constitute telehealth. Ige said that while he appreciates the intent of the measure, its wording is vague and could allow insurance providers to restrict access to telephonic services, especially impacting patients in rural and underserved areas of the state and those with limited digital skills and limited access to reliable internet service.
- SB3201 would clarify the application of the general excise tax law with regard to gross income derived from unrelated trade or business activities for nonprofit organizations. Again, Ige said he appreciates the intent of legislators by passing this measure and he supports the state’s nonprofit partners that would benefit from it, but the bill will have the unintended consequence of making certain types of income currently exempt from the GET subject to tax. Thus, the bill will affect nonprofit organizations unexpectedly and negatively in some instances.
“After the House committee chairs have an opportunity to review the governor’s list, we will meet with the House members to determine whether to override any vetoes,” Speaker of the House Scott Saiki said in a statement following the governor’s news conference Monday. “We will also have to determine whether the Senate is willing to override.”
The state Constitution requires a vote by two-thirds of the members of both chambers of the state Legislature to override a veto. The Legislature can convene before noon Tuesday, July 12, to act on any such bill returned by the governor.
According to the press release that included Saiki’s statement, any measure passed during the 2022 legislative session that has not been signed or vetoed by Ige on July 12 will become law with or without his signature.
Other bills on the governor’s veto list are:
- SB1297 relating to the issuance of special purpose revenue bonds to assist MauiGrown Coffee Inc. A press release from the governor’s office following Monday’s news conference said Ige included this one on his possible veto list, calling it defective because it attempts to extend the bond authorization lapse date beyond five years in violation of state statutes.
- HB1789, which relates to collective bargaining. The governor’s office press release said this bill diminishes the governor’s authority in appointing nominees to the state Labor Relations Board and would compel the governor to appoint a single individual selected by the exclusive representative of collective bargaining units. The current practice is for the governor to make an appointment from a list of three nominees.
- SB2032 relating to genetic information privacy. The press release said the Office of Consumer Protection’s independent authority as consumer counsel for the people of Hawaiʻi should be preserved. However, the enforcement mechanism provided in the bill appears to be problematic. Specifically, the bill requires the office to bring actions to enforce violations through the state attorney general, thereby depriving the office of its primary purpose. In addition, it is not clear whether a consumer would retain the right to file a claim for an unfair and deceptive trade practice for a violation of the prohibitions or requirements set forth in the bill.
- SB2091, which relates to executive pardons. The governor’s press release said this bill requires county prosecutors to provide relevant information or materials to the pardon applicant’s packet. The increased amount of information would require additional staff time and resources to review, causing delays to the current pardon process which was recently streamlined by the Hawaiʻi Paroling Authority.
- SB2142, which relates to computer science. This bill, according to the press release, diminishes the power of the state Board of Education to formulate statewide educational policy. While adding computer science as a graduation requirement is a good idea, it is a decision best left to the expertise and constitutional authority of the BOE. More concerning is the additional UH admissions requirements. The bill also could result in barriers to higher education for some people.
- SB2347 relating to constitutional amendments. The governor’s press release said the measure requires the Hawai’i Supreme Court to issue written opinions within 15 days on the legality of a proposed constitutional amendment or ratification question when requested by the presiding officers of the Legislature. The bill provides that the court’s written opinion is not appealable, which limits further judicial review, especially by those who were not allowed to participate in the court’s consideration of the issue. Advisory opinions generally do not have a detailed factual record or the benefit of prior legal analysis or advocacy from adverse interests regarding the issues that a proposed constitutional amendment often presents. Therefore, this bill can undermine the informed judicial decision-making process.
- HB2466, which relates to taro. The intent of the bill was to provide a GET exemption to taro farmers, according to the governor’s press release; however, it is not consistent with its intent. It also allows the GET exemption to be claimed by certain retail sellers, not just taro farmers. As written, retail sellers such as drug stores, convenience stores and restaurants would qualify for the exemption if they sold items in which the primarily ingredient is taro, such as poi or taro chips. This would make the exemption very difficult to administer and confusing for retailers.
- SB2511 relating to taxation. The governor’s press release said this bill has a significant flaw in that it creates an aggregate $20 million cap without designating a certifying agency to ensure the cap is not exceeded. Further, the bill requires tax credits to be prorated if the cap is exceeded, but because the tax credits are processed when received, taxpayer’s claims for credit after the cap is exceeded will have to be denied, prorated or adjusted, and those taxpayers could incur a tax liability with penalties and interest.
- SB2623, which relates to the Hawaiian Homes Commission Act. There is already a system in place for the Department of Hawaiian Home Lands to prioritize new lessees and minimize the problem this bill purports to solve, according to the governor’s press release. The bill, therefore, would not have appreciable impact on other waiting list applicants’ ability to receive homestead lease awards.
- SB2707 relating to collective bargaining. The mandates in this measure, according to the governor’s office press release, will undermine the current classification and pricing system and could result in claims of unequal pay or discrimination. There would no longer be a consistent application of criteria if multiple arbitration panels make repricing determinations. Furthermore, the existing negotiated repricing process already provides the unions with opportunity to submit negotiated repricing requests.
- SB2824, which relates to the state BOE. The bill requires the BOE to collectively have knowledge, experience and proven expertise for 13 areas, where only 11 positions are available, according to the governor’s press release. Education is only one of the 13 areas listed in the bill; the other areas of expertise are corporate-focused and unrelated to the oversight of a statewide public education system. Compliance with this bill would virtually guarantee that educational experts will be far outnumbered in the BOE’s composition and could be excluded from consideration for appointment altogether.
- SB2989 relates to agriculture. The measure requires expansive resources to operate a responsible, transparent and effective statewide program. The governor’s release says this bill does not provide the resources or guidance to create what would amount to a new division within the DOA.
- SB3172 relating to public meetings. The governor said in the press release that this measure will place unmanageable burdens on boards, particularly small boards that have no staff and rely entirely on volunteers. The current option for boards to provide a recording of the meeting with a time-stamped summary instead of detailed written minutes allows the public to learn what occurred at the meeting faster than if this bill becomes law.
- SB3179, which relates to the state Department of Land and Resources. Bounty programs to manage feral animal populations have been found to be ineffective and invite problems of fraud and trespass, the press release said. The DLNR is already working on this issue and has a task force to reduce the axis deer populations in Maui County.
- SB3229 relating to geothermal royalties. The DLNR is required to manage programs that regulate certain aspects of geothermal development and energy. According to the governor’s press release, this bill includes a proposed cap that diverts funds from critical DLNR programs that regulate geothermal development and energy. The cap is insufficient to cover the operating costs of these programs.
- SB3252, which relates to public records. The governor said in the press release that this measure will have a significant adverse impact on government agency operations. The full waiver of search, review and segregation fees for virtually all records requests acts as a disincentive for records requesters to narrow their scope, thus resulting in overbroad requests. Agencies do not have dedicated personnel to respond to these requests and many will be unable to comply without paying for overtime or more staff. There also could be more lawsuits, which would increase costs to government agencies. As a result, agencies might be forced to choose between responding to records requests and performing regular duties.
- SB3272 relating to transportation. Because of federal pre-emption, the state Department of Transportation has no authority to impose or enforce regulations regarding air space and aircraft operations under the jurisdiction of the Federal Aviation Administration, according to the press release. Therefore, the actions the DOT can take based on the additional reports and disclosures will be limited and unlikely to produce the bill’s desired results.
- SB3311, which also relates to transportation. The governor’s press release said this measure’s intent is already being fulfilled through current collaboration between state agencies and industry and public stakeholders. There is also no funding allocated in the DOT to lead additional working groups, support their work and produce annual reports to the Hawaiʻi Climate Change Mitigation and Adaptation Commission and Legislature.
- SB3335 relating to the Civil Air Patrol. It is unclear whether these funds would be provided through a contract or grant, but both pose challenges, the governor said in the press release. The Hawaiʻi Wing of the Civil Air Patrol is not registered in good standing with the Department of Commerce and Consumer Affairs. In addition, the Civil Air Patrol has not applied for a grant-in-aid this year. Allowing the Legislature to provide funds to private entities without complying with the standards for the award of grants is prohibited by the state Constitution.
Ige also announced Monday that he recently signed 105 more bills into law, bringing the total number he’s signed so far this year to 220.