The State Ethics Commission’s recent public disclosure of settlements of ethics charges lodged against the Hawaii Family Forum and Hawaii Catholic Conference appear to be part of a broader move by the commission to provide more transparency.
The two organizations agreed to pay a total of $3,000 to settle their cases. They also agreed that information about the charges and their resolution could be made public.
The commission’s press releases about these settlements got some media attention, but published accounts didn’t note the departure from the commission’s longstanding policy of confidentiality regarding processing of complaints.
A third public resolution followed, this one involving apparently violations of the state ethics code by Mililani High School tennis coach, May Ann Beamer.
In this case, the commission said the coach appears to have violated the ethics law by providing private tennis lessons for pay to five members of the school’s tennis team while, at the same time, having responsibility for selecting members of the tennis teams, designating the “line-up” of team members, and other regular coaching duties.
The commission’s charge alleged a number of violations of the “fair treatment” provision of the law, which provides, in part:
§84-13 Fair treatment. No legislator or employee shall use or attempt to use the legislator’s or employee’s official position to secure or grant unwarranted privileges, exemptions, advantages, contracts, or treatment, for oneself or others; including but not limited to the following:
… (4) Soliciting, selling, or otherwise engaging in a substantial financial transaction with a subordinate or a person or business whom the legislator or employee inspects or supervises in the legislator’s or employee’s official capacity.
Here’s the commission’s reasoning as spelled out in the public resolution:
The Commission has long held that the State Ethics Code prohibits teachers
from privately teaching or tutoring their current students or prospective students for pay. Students have a dependent relationship with teachers and do not share equal bargaining power with teachers. HRS section 84-13(4) bars teachers from engaging in substantial financial transactions with anyone supervised by them, including their students, as well as the parents of their students. HRS section 84-13(4) similarly prohibits a coach from offering or providing private lessons, for pay, to members of the school’s team who are supervised by the coach. The same dependent relationship and unequal bargaining power that exists between students and teachers also exists between school athletic team members and coaches. A coach has the power to select the members of a school’s team; a coach holds practices for and provides instruction and discipline to team members; a coach determines the level of participation or “playing time” for team members; and a coach acts as a key reference for players who seek to continue their athletic careers beyond high school. In this situation of unequal bargaining power, a team member whose coach offers to provide private lessons for pay may perceive the offer to be one that cannot be refused. Due to the dependent nature of the relationship, HRS section 84-13(4) prohibits coaches from providing private lessons for pay to team members.
The commission states that, if the allegations are true, it could reasonably find the law had been violated. To reach a final finding, however, would require a long, complicated, expensive, and still confidential investigation and formal administrative hearing.
It seems the commission is now leveraging its willingness to resolve cases short of formal charge proceedings in order to obtain the agreement of alleged violators to public disclosure of their cases. In most cases, that sounds like a win-win approach.
It all sounds good, though it seems like a strange world when the commission must peddle settlements to obtain “permission” to publicize their results. I don’t think it would amount to win-win in the case for a “plea bargaining” agreement on a matter that amounts to major crime, etc. I also must take you to task, Ian, because I expected you to smell something strange about the unexplained two-year interval between the complaint about the Catholic church and the “settlement.” I’m sorry but I think it is an elephant in the room and I can only be relatively surprised the possible significance of that has escaped you.
Jerry, the Commission never has to settle a case to make a case public with someone’s “permission”. This is simply a choice the Commission makes. The Commission can always proceed to a public hearing (formal, contested case hearing). After such a hearing, the Commission issues Findings of Fact and Conclusions of Law, and can impose a fine on the respondent, whether the respondent likes it or not. As you basically note, the question is when do factors warrant a settlement as opposed to marching towards a public hearing. In a settlement, the other issues are whether the Commission insists on the respondent admitting to violating the law and paying a fine, as opposed to no admission and a contribution to the general fund. The factors in the case would also guide this determination by the Commission.
Elephant? Is this a GOP political matter which I certainly can accept since reproductive choice and civil liberties issues are always on stove.
Ian, Having served as the State Ethics Commission’s executive director and general counsel from the beginning of 1986 to June 16, 2010, I disagree with your comments that the Commission has only recently decided to publicize its settlements. This happened long ago and was a priority since at least from 1986, before there was even such a thing as a Web site. And, putting cases on the Commission’s Web site is not new. I recall we did this as soon as we could, just as we were one of the first states to put public financial disclosures on the Web site around late 1998 or early 1999. As to settlements, for example, the Commission’s December 2005 newsletter, The High Road, states as follows: “The Hawaii State Ethics Commission recently entered into a settlement agreement with Senator J. Kalani English. A full text of the agreement is available on the Commission’s web site.” This was now close to seven years ago, and probably not the first instance of publication. You state as to recent Commission settlements that “published [media] accounts didn’t note the departure from the commission’s longstanding policy of confidentiality regarding processing of complaints.” There has never been such a “policy.” Perhaps there is some general confusion about how the Commission operates. The Commission can only function in accordance with the laws that dictate what the Commission can do and cannot do. The notion that the Commission can set a “policy” to be more or less open as to enforcement proceedings does not square with the dictates of the confidentiality laws that guide Commission enforcement of its laws. That being said, when I was with the Commission, I worked tirelessly to enforce the laws and make the results public when possible and appropriate. In December of 2009, a long settlement involving a legislator was also published on the Commission’s Web site. Around June or so of 2006, the Commission issued a public notice of a public hearing as to charges it had filed against then-Senator Brian Kanno. Mr. Kanno resigned from the Senate shortly thereafter, and based on the nature of the case and the Commission’s laws at the time, the Commission closed the case, as there was nothing more to do in that case that would have furthered ethics in government. I am sure if you check past newspapers, you will find many examples of enforcement publicized in the newspapers. You may recall that the Commission’s hearings were not public until I managed to have that law changed around 1995 to have public hearings. I worked very diligently towards transparency, which I think is apparent to anyone who has used the Commission’s Web site since its creation, or who has followed the work of the Commission in the media.
I guess it is a “look for the silver lining” thing. “Commission opens old window…..”
Jerry, I think it is looking for the truth based on fact, and taking or advocating for corrective action if warranted.
Ian, you mention in your blog that the settlements involving the Hawaii Family Forum and Hawaii Catholic Conference got “some” media attention, and you provided a link only to a very short article in the on-line newspaper the Honolulu Civil Beat, as far as I can tell. Susan Essoyan of the Star-Advertiser discussed these cases at some length in her article of August 3, 2012, entitled “Family Forum, Catholic Church settle ethics charges.”. I think it is fair to say that reporter Essoyan wrote about these settlements in much detail, including negative comments by the respondent against the Commission, as well as positive comments from former Commissioner Jacqueline Kido. While Commission transparency is important, aren’t comments about how the case was handled, pro and con, also important, especially given the nature of those comments? I think if you raise the issue of the Commission being more transparent and use these cases as a basis, you should also consider relevant information on how the cases were handled. Transparency is hardly a virtue if there are strong concerns on how a case was handled, which may diminish public confidence in the Commission if such concerns go unexplored, or are not even referenced. Your raising these cases for discussion as to transparency alone does give the impression of ignoring the elephant in the room, as Jerry writes, and I suppose we need to know if there is an elephant or not in the room.
I waited to see if you are going to get an answer but it is obvious you are not. This is not about good people of faith. It is about an agency that is supposed to be truly transparent and uniform in enforcement showing no favoritism. The real questions to ask are how long did this go on like this and why the commission was remiss in not dealing with it promptly in 2010. That is the transparency issue. Religious organizations were have every right to lobby.(and thank God that many times they do) As all church leaders know, they are supposed to register if lobbying and they do so. This is not about the Catholic Church – it is all about the Ethics Commission. It is also about fairness. Even the journalists are showing unwillingness to ask the questions of the settlement yet we are supposed to delight in the detailed and unending investigations of teachers.
“. . . have every right to lobby. . .” While they have that right, they are limited as to how much they are allowed to do. Too much, and they risk losing their exempt status with the IRS.
Jerry, I agree with you that what is paramount is uniform enforcement by the State Ethics Commission in all cases. This would be true of any agency in charge of enforcing laws. And it is not about any lobbying organization or church per se.
It should probably be pointed out for accuracy that a lobbyist for both the Hawaii Family Forum and Hawaii Catholic Conference registered (apparently late) on April 30, 2010. Apparently, late lobbying expenditure reports were then filed in May of 2010. (These filings were posted on the Commission’s Web site.) The Commission has the authority to initiate its own investigations and initiate its own charges. As noted in the Commission-released resolutions of these cases, there is a three-year statute of limitations for lobbying enforcement. The statute of limitations is set for three years back from when a charge is filed by the Commission or another. In these cases, the charges were filed by a citizen on or around September 7, of 2010. Thus, anything happening three years before the filing date of the charge cannot be investigated, etc., by the Commission. The longer a charge is not filed, the less the Commission can review. In these cases according to the Commission’s Web site, facts were apparently known to the Commission by April 30, 2010, or before then, if the Commission was contacted regarding the need to register or file reports. (It should at least be noted that lobbyists who file late can also be charged.)
I did notice that the resolutions in these cases do not seem to be dated, and that would seem to be a serious oversight, since we would have no idea when in 2012 they were issued. Also, Jerry, which teachers were you referring to? I get your point if I am right–that it seems at least as to one other resolution involving a teacher there may have been a fuller discussion of the facts of that case. Is that what you meant?
This is a case where the much maligned mainstream media (Star Advertiser) went up to bat and hit a double with their 8/3/12 article and the touted alternative media struck out with a puff piece. This is the first time I have seen the SA emerging in the lead in awhile.
On a related note in terms of openness in government, here is an article from today’s Civil Beat, “The Case of the Mysterious Hawaii Super PAC”.
http://www.civilbeat.com/articles/2012/08/22/16906-the-case-of-the-mysterious-hawaii-super-pac/
First, why is it so hard to determine who owns and runs a PAC? Should this relative obscurity be allowed?
Second, who are these people, and what do they want? They ran commercials against Ed Case, so they were targeting Case on behalf of Hirono. But from what I have heard, Case is not particularly anti-union. Is he? Or are these really members of the local Democratic Party’s Burns faction out to protect their own people by using union funds, without much input from their members? This might explain their secrecy.
Again, isn’t it a bit odd that this money is going into a primary race?
Does the national union know where the money is going — that is, into a Democratic primary, when a Republican takeover of the Senate is looming? If so, is Ed Case that much of a threat to organized labor as a moderate Democrat in comparison to the extreme right-wing elements that seem to have captured the Republican Party?
Perhaps only Ian Lind can answer these questions. Or at least take a stab at it.
It would be a start if he did. Frankly he is avoiding asking the right questions so he doesn’t get an answer he doesn’t want to write about in regarding the Ethics Commission article. It was not investigative reporting by any standard and Larry Geller got into this before re his Ethics Commission coverage and coverage of earlier issues a couple of years ago. Ian just didn’t demonstrate any dogged desire to get at the heart of it, IMO. And maybe its because some of us are surprised because he usually does.
“First, why is it so hard to determine who owns and runs a PAC?” The disclosures are there – ILWU and HGEA. The problem appears to be that the people who know about the PAC aren’t talking.