[Revised 9:45 a.m.]
Remember the flap during the recent legislative session over SB893? That’s the bill that would have retroactively exempted attorney/lobbyist Marvin Dang from conflict of interest provisions of the state ethics law after he lobbied on bills proposed by a mortgage foreclosure task force he had served on.
There was a big ruckus over the the bill, but in the end, after all was said and done, Dang quietly agreed to pay $1,000 to resolve any potential charges that might have been brought by the State Ethics Commission, according to the redacted summary of an advisory opinion recently made public by the commission.
Here’s what Civil Beat’s Chad Blair wrote about the issue just last month:
Two weeks ago a committee in the state House of Representatives killed a bill that would have retroactively exempted task force members from a conflict-of-interest provision in state law.
As Civil Beat reported, critics said the measure was an attempt to shield one member of the now-defunct Mortgage Foreclosure Task Force from Hawaii’s ethics law.
That member, financial services attorney Marvin Dang, turned up Tuesday before another House committee to ask lawmakers to reinstate key sections of the dead measure — Senate Bill 893 — into Senate Bill 66.
Dang submitted eight pages of written testimony and a draft of SB 893.
He also included written testimony dated March 21 from the Hawaii Bankers Association, the Mortgage Bankers Association of Hawaii, the Hawaii Credit Union League and several former members of the Mortgage Foreclosure Task Force — even though those groups and individuals were specifically testifying on SB 893, not SB 66.
The near flip-flop on the issue by the House reportedly came as Sen. Clayton Hee twisted arms behind the scenes, threatening to hold several House measures hostage if the provisions benefiting Dang were not agreed to by the House.
The issue brought former State Ethics Commission Executive Director Dan Mollway out of the closet to write a scathing letter urging the commission to fire his successor, Les Kondo.
As Star-Advertiser political writer Derrick DePledge reported:
Daniel Mollway, the former executive director of the state Ethics Commission, has urged the commission to fire Leslie Kondo, the current executive director, for allegedly operating in a “rogue and arbitrary fashion.”
In a March 27 letter to the commission, Mollway faults Kondo for publicly suggesting that a former member of a state mortgage foreclosure task force has violated the ethics law when no formal case has ever been brought before the commission.
Lots of high drama, indeed.
The issue goes back at least two years. For example, Kondo explained the ethics law to members of mortgage foreclosure task force at their meeting on August 2, 2011, according to the minutes of that meeting, and it was not the first time Kondo communicated with the task force.
The commission’s consideration of the issue came in response to Dang’s own request for an advisory opinion. In September 2012, the commission drafted an advisory opinion. The draft advisory opinion concluded that Dang’s lobbying, despite repeated warnings from commission staff, violated Section 84-14(d) of the ethics law.
No legislator or employee shall assist any person or business or act in a representative capacity for a fee or other compensation to
secure passage of a bill . . . in which he has participated or will participate as a legislator or employee[.]
The function of an advisory opinion is to provide a guideline for avoiding violations of law. If the legislator or employee who requested the opinion complies with the commission’s advice, they cannot face later charges unless they misrepresented the facts of the case. However, in this unusual case, Dang appears to have initially rejected the commission’s position and instead aggressively sought a political fix.
Meanwhile, another behind the scenes struggle was beginning in court. The ethics commission went to court in November 2012 to enforce a subpoena after Dang failed to appear and produce certain documents related to the matter, court records show.
Dang, represented by attorney Randall Y.S. Chung, filed a number of legal motions over the next several months in attempts to stave off the subpoena. The court files have been sealed and remain confidential, apparently as a result of a motion filed by Chung on Dang’s behalf, but it appears the commission’s subpoena was eventually upheld by the court.
When the attempt to get the exemption bill through the legislature finally ran out of steam, Dang apparently agreed to make a $1,000 payment “to resolve any further action by the Commission” stemming from his lobbying on the mortgage foreclosure bill.
The $1,000 payment was disclosed in footnote #1 to the commission’s Advisory Opinion 2012-2. The summary does not name Dang, but it clearly describes his case.
What remains unclear is why Dang fought so hard to avoid appearing before the commission to discuss the case, since he was evidently very active at the legislature telling his story in official testimony and in private lobbying.
There’s obviously more of a story here that remains to be pieced together.
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Ian, in your above blog post you write that I came “out of the closet” to write a letter to the State Ethics Commission in March. I hope you will allow me to address your comment. Your “closet” comment baffles me, as it implies to me and probably your readers that I have not been involved with the State Ethics Commission or ethics since leaving the Commission three years ago, and thus my “appearance” is somehow new or unusual.
However, this is hardly the case.
As you know, I have always been involved in discussing the State Ethics Commission and its director quite frequently as a commenter on your blog.
Further, I have written a letter to the editor printed in the Star-Advertiser last November about the passage of a bill that unfortunately weakened the State Ethics Code. I co-authored another letter printed in the Star-Advertiser in January about good government. Recently, the Star-Advertiser printed a letter to the editor written by me about fundraisers during the legislative session.
I testified twice on SB 893. If you were in the room, you would have known that I took issue with Mr. Kondo’s testimony on both occasions. What I said in my letter of March 27 concerning Mr. Kondo’s written testimony presented before the LMG on March 21, I stated for the record at the hearing held by the LMG.
These are just some of the “public” things I have done. I also on February 14 wrote an eleven-page letter to Senator Hee about the issues raised by SB 893.
My letter to the Commission of March 27 may have been my first letter to the Commission since my departure from the Commission. However, it is just another form of communication, and not some “new” involvement by me in ethics issues–as if I had gone into some kind of retirement. I have not been in any “closet”. To suggest or state what I do, without knowledge of my activities, I believe is not fair to me, and misleads your readers–suggesting that you have some special knowledge of what I do.
I have been deeply involved in ethics issues since leaving the Commission. I have been asked to meet with people. I have been called by people, and I have been contacted by the media. All of this has been continuous, aside from actions initiated by me.
I also have an “individual membership” in the Council of Governmental Ethics Laws (COGEL). COGEL does not allow for individual memberships anymore automatically, and one must have served with an ethics agency to even be considered. Aside from that, individual membership must be approved by COGEL’s Steering Committee.
I have attended the last two annual COGEL conferences. As you know, I am a lawyer, and all the powers the State Ethics Commission has are created by law, and the Commission must adhere to that law. For the record, as to use of the English language, I believe I am experienced in that area, as I have two degrees in English and American literature, and have taught full time for a number of years at two different universities, before becoming a lawyer. I mention this, as this training dictates careful usage of the English language and careful consideration of what is fact and what is not fact.
I think you can see that a remark that implies that I have somehow emerged from a lack of involvement with ethics and the State Ethics Commission would be very much a surprise to me. I would also say I have probably written more in the last three years on your own blog about the State Ethics Commission than anyone else.
I would also like to mention that I believe that the passage you quote from Mr. DePledge’s blog that I faulted Mr. Kondo for his “suggesting” (Mr. DePledge’s word) that a member of the Mortgage Foreclosure Task Force violated the state ethics code, is erroneous. I did not “suggest” that Mr. Kondo said this in his March 21 testimony before LMG. Mr. Kondo in fact, as a matter of fact, stated in writing in his testimony that there had been a violation–this was not a suggestion on Mr. Kondo’s part. To support my contention, I note the following: Mr. Kondo wrote in his testimony as follows: “…it is poor policy… to retroactively excuse one Task Force member’s conscious and knowing violation of the State Ethics Code.” This is what Mr. Kondo wrote in his testimony. There is no “suggestion” of a violation–there is a clear statement of a violation. However, there has been no hearing, and thus no such statement can “legally” be made, in terms of the State Ethics Code.
Ian, you wrote a blog post on August 29, 2011, that you disagreed with Mr. Kondo’s interpretation of HRS section 84-14(d). Your analysis of the law and your reference to the Commission’s past advisory opinion work could not have been written better. I commented on your blog post of that day that I agreed with you completely. Your analysis of HRS section 84-14(d)–a poorly written statute–was very accurate and perceptive. And, as far as I know, your view is by far the prevailing view.
You do a tremendous service by writing your blog, and being involved in good government without stop from the time I first met you when you were the director of Common Cause, starting in the early eighties.
I appreciate your allowing me to clarify these matters. You may not see all that I do with regard to ethics and the State Ethics Commission, but I would like you to know that my involvement has not stopped, and a certain type of involvement does not mean that I am not involved. Different matters call for different forms of involvement. Thus, my appearance on the scene in one type of activity does not mean I have been inactive, and thus my appearance is somehow worth noting as “unusual”. Thanks.
I was struck both by Ian’s suggestion that you had not been making public comment on ethics issus (especially here) and by his unfortunate choice of words in doing so. I’m sure others have also noticed, and appreciated, your contributions.
ohiaforest3400, Thank you for your kind support and perceptiveness, and I as well have appreciated your frequent comments on and insights into good government, which help me understand things I don’t know about. I don’t know who you are, but I have always believed you have spoken with care and in good faith.
Ian, Russell Blair has written a comment today about settlements on DePledge’s “Political Radar” blog. It may be of interest to your readers.
What was the purpose of the backhanded reference to coming out of the closet. He has been hiding from no one. The thing I like most about Mollway is he still believes we live in a world of laws and not men. Hence, picking on a lobbyist is OK, but only if there is really a reason to.
Its nice to see that some of the comments reflect not everyone believes issues should be decided by popularity contests and gushing accolades.