Haw. Rev. Stat. § 708-880
"Agent" means:
"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.
HRS § 708-880
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.
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§ 708-880 Commentary:
1. Cf. commentary to sections on bribery § 710-1040.
2. See H.R.S. § 725-1 .