Campaign Spending Commission

     This Advisory Opinion responds to a limited liability partnership, that is a government contractor pursuant to Hawaii Revised Statutes (“HRS”) section 11-205.5, that asks whether partners may make contributions of personal funds, and if not, whether their spouses and other family members may contribute.

     The Campaign Spending Commission (“Commission”) responds in the affirmative.

     Hawaii Revised Statutes (“HRS”) section 11-205.5 provides in relevant part:

Campaign contributions by state and county contractors. (a) It shall be unlawful for the person who enters into any contract with the State, any of its counties, or any department or agency thereof .  .  . for the rendition of personal services . . . to the State, any of its counties, department or agency thereof . . . if payment for the performance of the contract . . . is to be made in whole or in part from funds appropriated by the legislative body, at any time between the execution of the contract through the completion of the contract, to:

(1) Directly or indirectly make any contribution or to promise expressly or impliedly to make any contribution to any political party, committee, or candidate or to any person for any political purpose or use; or

(2) Knowingly solicit any contribution from any person for any purpose during any period.1(Emphasis added.)

This law prohibits “the person who enters into any contract” from making any contributions.

     In order to determine whether the law is applicable to the partners of a limited liability partnership we start with the standard rules of statutory construction.

First, the fundamental starting point for statutory interpretation is the language of the statute itself.  Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning.  Third, implicit in the task of statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself.  Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.

Peterson v. Hawaii Elec. Light, Co., Inc., 85 Haw. 322, 327-28, 944 P.2d 1265, 1270-71 (1997).

     Further, to clarify an ambiguity in the law, legislative history, as well as the reason and spirit of the law may be examined.  See HRS section 1-15 (1993).2

     This law was enacted as part of Act 203, Session Laws of Hawaii 2005, and replaced another law which required government contractors to register and report to the Commission.

     The 2005 Legislature specified that “the prohibition on contributions by state and county contractors applies to the specific contracting entity and not to individuals associated with the contractor, such as the individual owners of a contracting entity….”3

     Thus, if the government contract is executed between ABC Painting, L.L.P. and the State of Hawaii, then ABC Painting L.L.P. may not make contributions, but partners and employees of ABC Painting, L.L.P. may contribute personal funds.

     Further, the requestor of this opinion asks whether Advisory Opinion 97-03, Amendment 1 (“AO 97-3 A1”) applies.  AO 97-03 A1 interprets HRS section 11-204 (g), which provides in pertinent part as follows:

(g) An individual and any general partnership in which the individual is a partner shall be treated as one person.

     HRS section 11-204 (g) specifies that the individual and any general partnership in which the individual is a partner is treated as one person for purposes of contribution limits.  However, there is no similar provision in HRS section 11-205.5, and the Conference Committee report for HRS section 11-205.5 specifies that the legislature did not prohibit individual owners of a government contractor from making contributions.4  Thus, the individual that is a partner and the partnership are not treated as one person for purposes of the government contractor prohibition.

     In summary, the partners in the limited liability partnership may make contributions from personal funds, but the limited liability partnership cannot.  Spouses and other family members may also make contributions.

     The Commission provides this Advisory Opinion as a means of stating its current interpretation of the Hawaii Election Campaign Contributions and Expenditures laws provided under HRS section 11-191, et seq. and the administrative rules of the Commission provided in chapter 2-14, Hawaii Administrative Rules.  The Commission may adopt, revise, or revoke this Advisory Opinion upon the enactment of amendments to the Hawaii Revised Statutes or the adoption of administrative rules by the Commission.

Dated: Honolulu, Hawaii, December 12, 2007.

CAMPAIGN SPENDING COMMISSION

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Paul Kuramoto
Chairperson

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Steven E. Olbrich
Vice Chairperson

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Gino Gabrio
Commissioner

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Dean Robb
Commissioner

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Michael E. Weaver
Commissioner

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1 §11-205.5 Campaign contributions by state and county contractors. (a) It shall be unlawful for the person who enters into any contract with the State, any of its counties, or any department or agency thereof either for the rendition of personal services, the buying of property, or furnishing any material, supplies, or equipment to the State, any of its counties, department or agency thereof, or for selling any land or building to the State, any of its counties, or any department or agency thereof, if payment for the performance of the contract or payment for material, supplies, equipment, land, property, or building is to be made in whole or in part from funds appropriated by the legislative body, at any time between the execution of the contract through the completion of the contract, to:
(1) Directly or indirectly make any contribution or to promise expressly or impliedly to make any contribution to any political party, committee, or candidate or to any person for any political purpose or use; or
(2) Knowingly solicit any contribution from any person for any purpose during any period.
(b) This section does not prohibit or make unlawful the establishment or administration of, or the solicitation of contributions to, any separate segregated fund by any state or national bank, corporation, or labor organization for the purpose of influencing the nomination for election or the election of any person to office; provided that the commission shall by rule establish contribution limits for limited liability companies as defined in section 428-101, limited liability partnerships as defined in section 425-101, and limited liability limited partnerships as defined in section 425E-102. Sole proprietors subject to this section shall comply with applicable campaign contribution limits in section 11-204.

2 § 1-15 Construction of ambiguous context.
Where the words of a law are ambiguous:
(1) The meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.
(2) The reason and spirit of the law, and the cause which induced the legislature to enact it, may be considered to discover its true meaning.
(3) Every construction which leads to an absurdity shall be rejected.

3 Con. Com. Rep. No. 185 (2005).

4 Id.