The Honolulu Ethics Commission this week adopted a new policy for responding to the news media despite staff concerns that it is turns away from transparency, and will restrict their ability “to efficiently, promptly and accurately respond to media inquiries.”

The staff concerns were spelled out in a supporting memo accompanying an amended draft policy prepared by the commission staff based on past practice.

The staff memo begins by identifying certain assumptions they made.

Staff assumes that a goal of the EC is to continue educating and responding to media inquiries to inform the public about what the Commission does and the conduct of city officials. Staff also assumes that the Commission believes that it should be as transparent in carrying out its work, except where due process rights or confidentiality would be infringed.

Accordingly, the media policy proposed by the commission staff began with this framing statement.

Media interaction will aim to educate and inform the public and city workforce about the City ethics program, including the standards of conduct governing the work of City officers and employees, ethics training, legislation, statistics and Commission priorities.

However, the commission rejected that approach and instead insisted on a much narrower one. Here’s the same paragraph as it was approved by the commission.

All media releases will aim to educate and inform the public about the standards of conduct governing the work of City officers and employees for the public.

Perhaps the commission believed that this statement is vague enough to allow almost anything to be included under it, but reports about the meeting, and the staff’s own concerns, seem to signal that was not the case.

The staff memo also complained that any problems the new policy is intended to address have remained unstated.

What are the current problems that the policy will resolve or avoid? It is not clear how the Commission’s past practice as reflected in staff’s draft has resulted in miscommunication to the media or public or misstatements of the Commission’s positions. Without knowing what the concerns are, it is not possible to craft a policy that corrects the problems. Given the other pressing Commission priorities, the EC should adopt the approach that “If it ain’t broke, don’t fix it.”

For at least the last 30 years, best government agency practice has been for agencies to disseminate what they do for the public and how their actions’ impact the public. The only practical means of doing so is through media coverage. The Commission’s practice for 15 years has been to accurately inform and respond to media inquiries because the media is the most effective and ubiquitous link to public. Of course, certain topics are not open to the media, such as pending complaint cases, EC deliberations or confidential information.

The commission, in its wisdom, apparently did not agree. The commission’s draft media policy, rather than the one put forward by staff, was adopted with only a single “no” vote, and with one member absent.

For the record, here’s the staff memo that accompanied their proposed policy.

If you’re at all concerned about ethics, it is definitely worth spending the time to read in order to understand the concerns that the commission apparently chose to ignore.

For Action: Setting a Media Policy.

At the last meeting, the EC asked staff to draft another proposal based on the media policy offered by Commissioner Amano, OPEN – 6, and staff’s draft news release, OPEN – 7. Staff assumes that a goal of the EC is to continue educating and responding to media inquiries to inform the public about what the Commission does and the conduct of city officials. Staff also assumes that the Commission believes that it should be as transparent in carrying out its work, except where due process rights or confidentiality would be infringed. If staff has misinterpreted the Commission philosophy, that should be discussed.

Staff believes that any media policy, as well as any other policy or procedure adopted by the Commission, should be based on the following basic principles:

1. There should be clear reasons to set the policy.

What are the current problems that the policy will resolve or avoid? It is not clear how the Commission’s past practice as reflected in staff’s draft has resulted in miscommunication to the media or public or misstatements of the Commission’s positions. Without knowing what the concerns are, it is not possible to craft a policy that corrects the problems. Given the other pressing Commission priorities, the EC should adopt the approach that “If it ain’t broke, don’t fix it.”

For at least the last 30 years, best government agency practice has been for agencies to disseminate what they do for the public and how their actions’ impact the public. The only practical means of doing so is through media coverage. The Commission’s practice for 15 years has been to accurately inform and respond to media inquiries because the media is the most effective and ubiquitous link to public. Of course, certain topics are not open to the media, such as pending complaint cases, EC deliberations or confidential information.

The media report on EC matters of public interest that are discussed in open session or in formal advisory opinions. For example, in fall of 2013, the Commission debated the role of COR in setting the EC’s budget because of the impact of budget and personnel control on the ability of the EC to independently and effectively manage its workload. Reporters attended the open session of a number of meetings and composed news articles based on the topics discussed. The media and members of the public believed that this was an important issue for public review.

2. The policy should not restrict staff’s ability to efficiently, promptly and accurately respond to media inquiries.

Having the EDLC contact the EC members to get approval on responses to the media will be counterproductive to the goals of ethics education and transparency. The suggestion that there be some type of approval by the Commission before responding to a media inquiry raises complications:

• Having proposed responses approved by the EC as a whole or by a member is too cumbersome to ensure prompt, accurate responses. The answer to one question will create follow-up questions. It would be unwieldy to have to ask for EC or commissioner permission for each conversation or follow-up question. Also, what happens if the responsible Commission member does not agree with staff’s proposed response?

• Using a non-specific triggering event such as “if time permits” makes it difficult to decide whether a response waits until the next Commission meeting or is approved by the responsible EC member. Also, who is to determine “if time permits”?

• If the EC is unable to promptly and professionally respond to media inquiries, the media will get its information from other sources and the EC will lose the opportunity for timely input into the discussion.

A simpler approach can be adopted to ensure that members know what staff discussed with reporters before it is reported in the media. The Media Policy below requires the EDLC to respond to the media inquiry and then copy the members with an email so that they are informed of the advice given or conversation.

3. The consequences of the policy should be vetted before adoption.

Staff is concerned that the current wording of para. 2 in OPEN- 6 would result in unintended, but serious, consequences. The paragraph reads: “Under no circumstances shall any media communication engage in media activities to air concerns/grievances regarding the operations of the Ethics Commission, or interpret or comment on any decisions or advisory opinions.”

This paragraph has two parts. First it prohibits staff and or EC members from raising “concerns” or “grievances” about EC operations through the media. No explanation of the need for this restriction has been offered yet. Even if the prohibition is justified, it is impractical to implement and follow. There is no definition of “concerns” or “grievances.” Something as ordinary as the workload statistical chart staff handed out at the last meeting might reasonably be interpreted as a concern or grievance about not having enough resources to do our job. Would the Commission want to hamstring itself by prohibiting any response to a reporter asking whether the chart shows we need more resources? What about a Charter amendment to change how EC lawyers’ salaries are set — does that imply a concern or grievance about the manner in which salaries have been determined in the past?

Take a more serious example. What if the Council or Administration cuts the Commission’s budget by 25% (a scenario that has happened in other jurisdictions)? No comment could be made by the Commission. The result of a “no comment” policy on EC operations is that anyone, except the EC, may discuss operational issues in the media.

The second part of the prohibition is that no comment may be made to “interpret or comment on any advisory opinions.” Staff assumes that this prohibition does not restrict the staff’s duty to interpret the EC’s formal advisory opinions when rendering informal advice or examining complaints under Rule 1.10(a), Ethics Commission Rules of Procedure.2 If staff’s assumption is incorrect, the issue should be discussed.

A typical media request to staff is: “How will the Garcia opinion affect other city personnel in the future?” The typical staff response is: “Each case presents different facts, but generally this case shows that city officials may not accept gifts over $200 in value from one source in one year where that source has an interest that the official could affect.” To effectively communicate to the public, city work force and the media, staff needs to be able to interpret the practical effect that a formal advisory opinion will likely have on similar ethics issues in the future. Staff does so hundreds of times a year when it responds to requests for advice. What staff should not and does not comment on is the EC’s deliberations in reaching an opinion.