Dan Mollway, who served as executive director of the State Ethics Commission for 24 years (1986-2010), sent this as a comment on my Civil Beat column this week about the Hawaii Ombudsman. It provides some historical context, and additional perspective. With Dan’s permission, I’m featuring it here as a guest post.
The Office of the Ombudsman and the State Ethics Commission were both created at the same time, in 1967, by our state Legislature, and both offices were the first of their kind in our country. So, someone back then was doing something right.
Both offices started off with a budget of $25,000. However, somewhere along the line, the budget of the Office of the Ombudsman took the lead, and, as I recall, had a working budget always around a few hundred thousand dollars more than that of the State Ethics Commission. The three legislative agencies–the Auditor’s Office, the Legislative Reference Bureau, and the Office of the Ombudsman all essentially, as far as I can see, are service agencies that carry out duties the Legislature would otherwise have to perform. The State Ethics Commission is attached to the Auditor’s Office for administrative purposes only. The role of the State Ethics Commission is to enforce ethics laws that legislators are subject to. This “policing” function has not been taken well by the Legislature over the years, resulting in a lack of what one might see as a comparable budget for comparable work, including salaries, among these agencies that are part of the legislative branch. These are two areas that should be looked into. I should make it clear that I am not diminishing in any way the importance of the work of the Ombudsman or the Auditor, but the work of the State Ethics Commission is certainly no less difficult nor important.
In an ideal world (or state), I would like to see comparable budgets for comparably mandated work, as well as comparable salaries for the heads of these agencies. It should be kept in mind that the State Ethics Commission can enforce its laws–something neither the Auditor nor Ombudsman can do. This enforcement authority includes the fact that the Commission’s rulings can be appealed all the way up to the State Supreme Court (this has happened twice), so the State Ethics Commission has, and needs to have, its own independent staff of competent attorneys, and every decision (many are made each day) of the State Ethics Commission can wind up before the State Supreme Court. There is also a question of scope of jurisdiction. The jurisdiction of the State Ethics Commission includes legislators, the governor and all elected state officials and employees, except state judges, who have their own constitutionally created ethics office.
I would like to find out more about the clever line about “gumming them to death”, used by the current Ombudsman, if any of your readers knows the origin. I often heard the current Ombudsman’s predecessor use this phrase, as he and I often talked and worked together for many years, while I was the director of the State Ethics Commission. I am glad that current Ombudsman is adhering to the policy, and it seems to be really now more of a mantra for the office.
While gumming away, we should also be concerned with sticking up for parity among enforcement agencies, including the subject of your post, the OIP. If parity does not exist, that may tell us a lot more than a number of annual reports here and there. Thank you for the historical look at the OIP–your readers may not know it (and there is no particular reason it would come to mind), but having a strong OIP greatly assists the State Ethics Commission in terms of accessing documents for evidentiary purposes.
To show you how far we have come along those lines (though we can do so much better as a state), in 1985 I asked a staff attorney for the Judiciary, in my role as the director of the State Ethics Commission, for the job description of an ordinary judiciary employee–I emphasize job description–not resume, etc. The staff attorney told me that the job description for the state employee was “confidential”.
If anything, we need a well funded, well staffed, and independent Office of Information Practices.
Thanks.
Ian, I enjoyed your Honolulu Civil Beat article about the Office of the Ombudsman, entitled “”Hawaii Monitor: No Teeth For Ombudsman But ‘We Can Gum Them To Death’”.
To clarify, I first heard this phrase used by the Acting Ombudsman Wayne Matsuo, who unfortunately passed away in 1999. Wayne served as the Acting Ombudsman from around 1984 to 1989, when, I believe, Yen Lew was then appointed to run the office, as Wayne went over to head the Office of Youth Services.
Wayne Matsuo, for me, was a figure of great inspiration–a person of incredible personal force and integrity. We talked often, and he stopped by my office often when I was the director of the Hawaii State Ethics Commission. Wayne often expressed the fact that though his office had no teeth, “we can gum them to death”. Wayne was a congenial and upbeat person, with boundless energy, and a clear respect for others. With his incredible ability at moral persuasion combined with the force of his personality, it seemed to me he needed neither teeth nor gums to accomplish his work.
I suppose that Wayne came up with the phrase, “gum them to death”, and I am glad that the Office of the Ombudsman appears to have continued to take that phrase as its motto, so to speak, when doing its important work.
We “Ilind” readers are very lucky to have Mr. Mollway as a regular contributor. And Hawaii is very lucky to have him as a resident! Mahalo.
Reader, Thank you. Very kind of you.
Wow. An accurate, thoughtful historical perspective on the three offices by an honest man. Yes, people like yourself enrich the surroundings. Too bad more of the bellowing crowd of Bishop Street and other state employees haven’t learned that quiet and unshakable strength that grows out truthfulness and respect for others.
Jerry, Thank you. You yourself are doing lots of good work and putting yourself out there, which is appreciated by many more than you know.
Thank you for posting the information about the state Ombudsman, Ian. I was not aware of that office.
Dan, in your commentary published by the Star Advertiser, you indicated it might be good to put several agencies (Ethics, OIP, auditor & spending commission) under one department. Why did you not include the Ombudsman?
Natalie, in our Star-Advertiser op-ed of January 2, we did not include the Office of the Ombudsman because it deals with personal problems (complaints) that someone might have with a state or city executive branch agency. For example, in its latest annual report for 2011-2012, the Ombudsman discusses a complaint from someone who complained that he was not given a duplicate state ID by an agency because the agency said he “did not have a scheduled appointment.” In his Honolulu Civil Beat article, Ian describes as an example of the work of the Office of the Ombudsman a complaint by a psychologist to a state agency (EUTF) because a private insurance carrier did not pay the psychologist. The EUTF handles such matters. Ian also referred to such problems as “day-to-day problems” the public has when dealing with government agencies.
In our op-ed, we proposed a constitutional amendment to avoid year-to-year changes to statutes by the legislature and to ensure that good government has the same protection as natural resources. The amendment would provide for a new Department of Good Government that would house several agencies responsible for “good government,” which we understand to include things like ethics, transparency, accessibility, and accountability. The department would be headed by a director who reports to the Governor, to ensure clear accountability. The buck stops at the governor’s desk. Good government” agencies such as the Office of Information Practices, the Campaign Spending Commission, and the State Ethics Commission are responsible for enforcing laws and policies that apply to our State as a whole. For example, to what degree we should have financial-interest disclosure by state officials or the enforcement of OIP laws are statewide issues that foster good government for all.
The Office of the Ombudsman is certainly useful and necessary for citizens who have complaints about how agencies handle their personal matters. These are generally not “good government” issues, but relate to government doing or not doing its job. This is an extension of “constituent service” that is a traditional duty of legislators. Our focus was on the larger picture of traditional good-government issues such as transparency, open meetings and records, disclosure in its many forms, and so forth, that are still being worked out and still the subject of how do we create good government and deter corruption. I hope this addresses your question. Thanks for asking. These are important issues that benefit from wide discussion.
Thank you for the clarification, Dan. I do like the idea of putting the other agencies together. Now the question is, have you (or others) worked on making the change to the constitution? If there’s a bill to do so this session, I would certainly support it.
Natalie, We don’t intend to introduce a bill to amend the constitution this year. We’re clear about the need for state government to raise standards for openness, accessibility, accountability, and ethical behavior. But a proposal to amend the constitution has to carefully consider its ramifications. Any help we can get to do this would be very welcome. We’re in the stage of planning the Japanese call “nemawashi.” We’re laying the groundwork for a proposal. Thanks again for your interest and support, and your willingness to support a constitutional amendment.
“. . . a proposal to amend the constitution has to carefully consider its ramifications.” Agreed this is very important. Perhaps our paths will cross one day soon, and we can further discuss these i
Sorry, I had a problem posting my comment, and part of it was cut off. It should end with “issues.”
Natalie, I look forward to your input and assistance on this, and willingness to give this all serious consideration. In 1968, the state Constitution went far in providing for an Article to establish the Hawaii State Ethics Commission, thus providing it with great protection. In 1978, this Article was greatly improved upon–Article XIV. Other agencies considered traditionally “good government” agencies do not currently have this protection.
There are only a few states that provide such constitutional protection for their state ethics commissions. Again, Hawaii was way ahead of its time, or maybe just doing the right thing. The current Article in the Constitution for the Hawaii State Ethics Commission seems to serve as a “model” of what can be done for the benefit of all good government agencies in Hawaii, and thus for the people of Hawaii. It seems it is time to consider consolidating these agencies, and thereby make a statement as to their importance, while ironing out some wrinkles as to how they all function, along with addressing budget needs, which of course would cover adequate staffing.
I have nothing against paying the UH football coach what the going rate is. But there seems to be something fundamentally absurd with the entire budget of the State Ethics Commission being historically significantly less than the salary of the football coach.
The State Ethics Commission enforces HRS chapter 84, an ethics code for Hawaii’s state officials and employees (40,000 to 50,000 people), as well as HRS chapter 97, which regulates lobbying and lobbyists at the state level there are generally 300 “professional” lobbyists representing about 600 clients. Aside from the Commission issuing formal advisory opinions regarding its laws and taking enforcement action (in both of these areas) when needed (and handling requests for advice all day long), it must also deal with about 5,000 disclosure forms filed each year. For a staff of five attorneys and four support staff (who also have to run the agency), performing these tasks as they were meant to be performed gets to the level of ridiculousness. As a result, the State Ethics Commission in the past can be seen as not performing its duties completely simply because it does not have the funds or staff for these critical functions. We all lose in the end, not to mention that this is not how government is supposed to work. Ian pointed out the declining budget of the Office of Information Practices since its inception. I suppose the question is, is this all in keeping with participatory democracy or not? Who is running the show, and are we considered worthy enough to participate or not?