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.