PART VIII. OFFENSES AFFECTING OCCUPATIONS

 

708-880 Commercial bribery. (1) A person commits the offense of commercial bribery if:

(a) He confers or offers or agrees to confer, directly or indirectly, any benefit upon:

(i) An agent with intent to influence the agent to act contrary to a duty to which, as an agent, he is subject; or

(ii) An appraiser with intent to influence the appraiser in his selection, appraisal, or criticism; or

(b) Being an agent, an appraiser, or agent in charge of employment, he solicits, accepts, or agrees to accept, directly or indirectly, any benefit from another person with intent:

(i) In the case of an agent, that he will thereby be influenced to act contrary to a duty to which, as an agent, he is subject;

(ii) In the case of an appraiser, that he will thereby be influenced in his selection, appraisal, or criticism; or

(iii) In the case of an agent in charge of employment, that he will thereby be influenced in the exercise of his discretion or power with respect to hiring someone, or retaining someone in employment, or discharging or suspending someone from employment.

(2) In this section:

"Agent" means:

(a) An agent or employee of another;

(b) A trustee, guardian, or other fiduciary;

(c) A lawyer, physician, accountant, appraiser, or other professional adviser or informant;

(d) An officer, director, partner, manager, or other participant in the direction of the affairs of an incorporated or unincorporated association; or

(e) An arbitrator or other purportedly disinterested adjudicator or referee.

"Agent in charge of employment" does not include any person conducting a private employment agency licensed and operating in accordance with law.

"Appraiser" means a person who holds oneself out to the public as being engaged in the business of making disinterested selection, appraisal, or criticism of commodities or services.

(3) Commercial bribery is a misdemeanor, except in the event that the value of the benefit referred to in subsection (1) exceeds $1,000, in which case commercial bribery shall be a class C felony. [L 1972, c 9, pt of 1; am L 1979, c 173, 1; am L 2015, c 35, 26]

 

Revision Note

 

In subsection (1)(b)(i), "or" deleted and in subsection (2), paragraph designations deleted, definitions rearranged, and punctuation changed pursuant to 23G-15.

 

COMMENTARY ON 708-880

 

This section is an attempt to reinforce civil rules of fidelity by penal sanction. To a lesser degree the section serves another secular function: it helps secure independency of business judgment. The premise is that business decisions ought to be made on merit to insure the optimal allocation of resources: bribery undermines this neutral decision-making process in the same way it undermines public administration.[1] Society's interest in promoting civil or commercial fidelity by penalizing those who intentionally violate those rules and in promoting the proper allocation of resources justifies the imposition of a misdemeanor sanction for this offense.

Subsection (1)(a) covers bribe offerors in the commercial context. It covers both agents and appraisers. "Agent" is defined broadly in subsection (2)(a) to cover all areas where a duty of fidelity is owed. The nature and scope of such duties are defined by common and statutory law regulating or creating the various legal relationships involved. Thus, for example, the duty of an employee to an employer may be not to give away trade secrets, whereas the duty of a fiduciary to the fiduciary's beneficiary or a union representative of an employee's welfare fund to employees may be to exercise independent judgment. "Appraiser" is defined broadly in subsection (2)(b) to include, in addition to conventional forms of appraisal, those forms of appraisal that have recently been involved in the "payola" scandals; for example, the bribery of disc jockeys, cinema, theatre and music reviewers, and the like, to "plug" or give favorable reviews to a certain recording, movie, play, composition, etc. Inherent is an element of "consumer protection": we are concerned that the commodity which the appraiser purports to market, that is independence, neutrality, and expertness of judgment, be protected from any undue influences.

Subsection (1)(b) covers commercial bribe solicitors or receivers. In addition to agents and appraisers, subsection (1)(b)(iii) adds a third category: an agent in charge of employment. The special abuses to which those with power to hire and fire are prone warrant subsection (1)(b)(iii), which sets forth a substantive rule that a benefit shall not be accepted with the intent that some person's status with respect to a job shall be affected thereby, regardless of whether the action constitutes a violation of a duty to a principal. Thus, even though an agent would probably be under a duty to employ the best qualified applicant, acceptance of a benefit from such an applicant should not be allowed.

Previous Hawaii law recognized no penal offense for bribery in the commercial context. There were provisions affecting bribery of appraisers and arbitrators, but these provisions were clearly concerned with bribery of public or quasi-public officials, rather than with private commercial bribery.[2]

 

SUPPLEMENTAL COMMENTARY ON 708-880

 

Act 173, Session Laws 1979, amended subsection (3) to upgrade the offense of commercial bribery to a class C felony in certain instances. The legislature found that the practice of exchanging monetary consideration to influence the discretion of officers in private corporations was perhaps more prevalent and of greater public concern than misdemeanor classification would warrant. Senate Standing Committee Report No. 856.

Act 35, Session Laws 2015, amended subsection (2) by changing the paragraph designations in the definition of "agent" and by making a technical nonsubstantive amendment to the definition of "appraiser."

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708-880 Commentary:

 

1. Cf. commentary to sections on bribery 710-1040.

 

2. See H.R.S. 725-1.

 

 

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