Did the State Ethics Commission violate the state sunshine law when it set its evaluation process and evaluation criteria behind closed doors in executive session?

The question is prompted by the commission’s handling of its recently completed evaluation of executive director Les Kondo.

It isn’t just that the content of the evaluation has remained confidential. Even the criteria that were used have been closely held, discussed only behind closed doors and not publicly disclosed.

While personnel matters are allowed to remain confidential because of the privacy interests of those involved, the criteria used to evaluate an employee wouldn’t seem to implicate any matters of personal privacy. So the unnecessary secrecy here, especially in light of the public interest in robust ethical standards, is a problem.

In a recent post on his Disappeared News blog, Larry Geller described raising the same questions back in 2010 when the commission terminated its former director, Dan Mollway (“Ethics Commission: Is internal politics at work (again) to undermine Executive Director?“).

Geller wrote:

…at that time, the Commission carried out almost the entirety of its discussion behind closed doors. That included discussion of what criteria applied to an evaluation or to a dismissal. Mollway was dismissed, as far as the public knew, in a secret process carried out according to secret rules, if there were any at all. In fact, whether criteria were created specifically to allow a political assassination to take place was a valid concern.

So I requested a copy of the minutes on the basis that at least part of the executive sessions should have been completely open to the public, so that I, reporters, and interested members of the public could observe and possibly submit testimony.

The Commission apparently agreed with me, and said they would release minutes if I paid $268.20.

Geller didn’t pay the requested fee and never did receive the partial minutes. And now, five years later, we’re back in the same situation.

The state’s sunshine law does allow executive meetings that are closed to the public, but only under limited circumstances.

§92-4 Executive meetings. A board may hold an executive meeting closed to the public upon an affirmative vote, taken at an open meeting, of two-thirds of the members present; provided the affirmative vote constitutes a majority of the members to which the board is entitled. A meeting closed to the public shall be limited to matters exempted by section 92-5. [emphasis added]

And the law does allow closed meetings “to consider the hire, evaluation, dismissal, or discipline of an officer or employee….”

But there’s a very important caveat. Here’s the full provision allowing closed meetings for personnel issues as it appears in the sunshine law.

92-5(a)(2) To consider the hire, evaluation, dismissal, or discipline of an officer or employee or of charges brought against the officer or employee, where consideration of matters affecting privacy will be involved; provided that if the individual concerned requests an open meeting, an open meeting shall be held; [emphasis added]

It seems clear that discussions of how well or poorly an individual employee meets established performance criteria would be matters affecting their personal privacy.

However, discussions that are preliminary and prior to any actual evaluation, including discussions of the appropriate evaluation process to be used, and the criteria to be considered, would not implicate any personal privacy issues and would not appear to fall under the exemption.

And that leads to the conclusion that closed meetings to discuss such criteria and procedures are violations of the sunshine law and are illegal.

At least that’s how it appears to me.

And Geller raises an additional point.

There is a side issue here. Do Hawaii boards and commissions really know how to conduct evaluations or even, for that matter, how to set measurable objectives for staff performance?

That’s an interesting question which doesn’t some up very much because, as I understand it, only a few boards and commissions have the authority and discretion to hire their own executive director. Others include the Elections Commission and the Campaign Spending Commission.

Perhaps we should take a look at what kind of legal or human resources support these commissions receive when they undertake the hiring, or the evaluation, of top staff. Are they free to choose whatever criteria they wish? Is there a set of recommended “best practices”?

All points for further research.