Category Archives: Ethics

State high court rejects ethics charges against Hilo charter school administrator

My weekly column over at Civil Beat today looks at a recent Hawaii Supreme Court case which overturned a major ruling by the State Ethics Commission (“Ian Lind: Ethics Commission Takes A Licking“).

It was the second court ruling overturning a commission action in just a month.

Remember that the CB paywall recently came down, so you’ll have easy access to the column.

The July 19 ruling by the Supreme Court shredded what had been one of the commission’s most extensive and significant enforcement actions in decades.

William Eric Boyd, an assistant administrator at the Connections New Century Public Charter School in Hilo, had been charged with violating the state ethics code by approving or processing purchases of supplies, equipment and school lunches from two companies controlled by Boyd and his wife.

In its decision, the Supreme Court noted that Boyd had actually followed all of the charter school’s policies and procedures, and faced the ethics charges despite apparently having done everything according to the rules.

What didn’t make it into the CB column is that there was no evidence that Boyd was anything other than the lowest bidder, providing needed products and services to the school at the lowest cost.

For example, Hilo attorney Ted Hong, who represented Boyd in the appeal, told me in a telephone interview that products ordered through through the Boyd’s Amway distributorship were sold to the school at their wholesale cost. And the court decision noted that meals for high school students purchased from Boyd’s wife cost just $3 each.

You’ll have to read the CB column to find out just why the court ruled against the ethics commission and ordered that all ethics charges against Boyd be dropped.

Court rulings prompt lots of ethics questions

Now that Civil Beat has knocked down its paywall, I’ll point you over there today to CB for my weekly column (“Ian Lind: Ominous Court Rulings For The State Ethics Commission“).

I started out just trying to digest the court ruling that overturned the State Ethics Commission’s “guidelines” prohibiting traditionally organized educational trips for public school students because it believes the free travel offered to teacher-chaperones is a prohibited “gift” under the state ethics law.

I’ve tried to explain a bit of the background in the column, so do head over to Civil Beat and give it a read.

Thinking about it some more, I’ve come around to the opinion that the commission has overreached in its to make it easier for people to comply with the ethics code by spelling out more “bright lines” between allowed and prohibited acts.

But this has involved manufacturing bright line boundaries for a statute where there is little in the way of clear Black and White, and much more a subjective set of grays.

It seems to me that in the past, the commission’s advice on educational travel might have been nuanced and somewhat “wishy-washy”, and would have been something like this.

They might have explained that the gift provision of the law prohibits gifts intended to influence or reward state officials or employees for their official actions. And the “fair treatment” provision prohibited state officials or employees from using their official position to reap unwarranted rewards.

Then the commission might have reviewed its decisions in past specific cases. For example, they might have pointed to a rare circumstance in which a teacher’s family owned a travel agency, and benefited unfairly when school trips were routed via the family company. Or perhaps they would have referenced a past case in which parents complained that a teacher pressured students to sign up for the trip so that another free trip would be available for a favored teacher.

And the commission might then have warned teachers to be careful to avoid even appearing to put pressure on students and their parents, and to stay clear of any business involvement in the travel arrangements beyond the flights and hotels received in exchange for organizing and chaperoning. And the commission would have advised anyone with questions or concerns to contact the commission for further guidance.

Instead, the commission tried to reduce the gift and fair treatment provisions to a simple “no free travel under these circumstances” rule written into their guidelines.

Now a circuit court judge had overturned the travel guidelines and ordering the commission to go through rule making if it wants to come up with a bright line solution.

My column notes that this forced reconsideration is likely to involve more than school travel, as the same gift provisions have been relied on to prohibit legislators from receiving complimentary tickets to attend community or nonprofit events with a face value of more than $25. Legislators unhappy about the commission’s restrictions on them are likely to be more than happy to piggyback their grievances on top of the teachers’ arguments.

And then there’s the U.S. Supreme Court’s decision in the case of former Virginia Gov. Bob McDonnell. It’s like a “Citizens United” decision in the area of public ethics and corruption.

Check the column for my initial thoughts. I’m still trying to wrap my mind around the court’s decision.

A teaser…from the blog, Ethos:

“We in government ethics talk all the time about officials not even giving the appearance of a conflict of interest. As in most human endeavors, we find that noble principles are best supported by a few punitive laws or rules for those who do not “see the light.” Over two centuries, Federal conflict-of-interest laws and ethics rules have punished appearances of corruption because of the overarching need in a government based on popular sovereignty for the citizenry to trust in the integrity of its governing officials. Sadly, the Court has said that appearances/ethics are in the eye of the beholder.

Surprised by an SPJ Award

When I saw a Facebook post by another journalist commenting on awards from the Society of Professional Journalists annual contest, I went looking for the results posted on the SPJ Hawaii website. And I was surprised to see this:

2015 Excellence in Journalism Awards
June 24, 2016
Manoa Grand Ballroom


The 2015 Excellence in Journalism contest was judged, for the most part, by the Colorado chapter of the Society of Professional Journalists, with the exception of the Overall Magazine Layout, which was judged by Star-Advertiser managing editors Betty Shimabuuro and Mike Rovner.

All Media A101 Column Writing or Blog/News

First Place: Ian Lind “Ian Lind” Civil Beat Category Comment: “The winning entries all share the commonality of readability, and interesting insights into the history and culture of Hawaii, it’s people and its politics.”

Finalist: Ben Lowenthal “The State of Aloha” Maui News

Finalist: Neal Milner “Neal Milner” Civil Beat

After digesting the news, aided by a glass of wine or two, I checked in with Civil Beat Editor Patti Epler and got a list of my columns that were submitted.

It’s a pretty good selection, I have to say.

So here they are, the winning columns. And remember that the paywall has come down, so they are free for the reading.

Ian Lind: War Crimes on Kauai?
Since when did collecting taxes become pillaging and a war crime?

Ian Lind: Will Ruling In Council Case Derail Honolulu Ethics Enforcement?
The city Ethics Commission has released few details about why it dismissed charges against current and former council members, but the decisions could set dangerous precedents.

Ian Lind: Has UH Adequately Addressed Cancer Center’s Sticky Issues?
Former director Michele Carbone was often an expert defense witness in asbestos cases and sought UH grants from a frequently sued company. Conflict of interest?

Ian Lind: Dear Joe, If You’re Concerned About Ethics Problems Look in the Mirror
The Hawaii House Speaker is off-target in his criticism of the Ethics Commission for doing its job.

Ian Lind: Kahoolawe 40 Years Later
Protests over using the island as a military bombing range galvanized the modern Hawaiian movement.

Not quite missing in action

Yes, I missed getting a post online yesterday. Lots of reasons, no excuses.

I got dropped off downtown early in the day and spent several hours in the Circuit Court documents room, going through some case files.

When I was done, I headed for the bus and just forgot to finish the job.

One of the cases I checked on was the Hawaii State Teachers Association’s lawsuit against the State Ethics Commission over the commission’s guidelines prohibiting teachers from accepting free travel when serving as chaperones during educational trips for students.

Last week, Judge Rhonda Nishimura voided a commission advisory opinion and related memorandum issued in August 2015 spelling out its interpretation of the ethics code as applied to these educational trips.

Despite some key arguments made on behalf of the HSTA by attorney (and Congressional candidate) Colleen Hanabusa, the ethics commission declined to give any ground or to soften their position. I’ll get back to additional details of the arguments in a later post.

So after hearing oral arguments, Nishimura ruled the commission’s travel guidelines affect a broad section of the public and are not limited to a specific case or situation, are forward looking, and therefore must be adopted as agency rules, with opportunities for public input guaranteed by state law.

One key point was buried in the arguments. Hanabusa pointed out that the same issues underlying the disagreement over teacher travel and education trips are also involved in applying the gift provisions of the ethics code to legislators and other public officials.

One part of the what is at issue is the ethics commission’s interpretation of this part of the law, which provides:

Gifts. No legislator or employee shall solicit, accept, or receive, directly or indirectly, any gift, whether in the form of money, service, loan, travel, entertainment, hospitality, thing, or promise, or in any other form, under circumstances in which it can reasonably be inferred that the gift is intended to influence the legislator or employee in the performance of the legislator’s or employee’s official duties or is intended as a reward for any official action on the legislator’s or employee’s part.

HSTA repeatedly questioned how the ethics commission decides what is a “reasonable inference.”

It’s the same provision at issue, whether applied to teachers or to lobbyists and legislators.

This is dangerous territory, because prior ethics opinions about gifts to legislators have been grumbled about at the State Capitol but not directly challenged. It’s a rare elected official who wants to publicly be seen on the wrong side of ethics.

This is clearly tricky territory, especially because the ethics commission is bound by the ethics laws, which are passed by the Legislature and can be amended by them as well.

If the commission holds to its prior position, and the teachers case is ultimately pushed to rulemaking, it will necessarily open the door to challenges to the way gifts to legislators have been treated by the commission. Lobbyists and legislators may be anxious to renew that debate. I’m not sure the public wants to risk loosening of existing restrictions.

Judge says ethics guidelines must be adopted as rules to be valid

I’m trying to figure out the actual meaning of yesterday’s court ruling which struck down a set of ethics guidelines for public school teachers involvement in educational trips.

The ruling came in lawsuit brought by the Hawaii State Teachers Association appealing a decision by the State Ethics Commission.

The educational travel guidelines, adopted last year by the State Ethics Commission, said several provisions of the ethics code conflict with the past practice of teachers accepting free travel and other benefits from private travel companies in exchange for the teachers planning the trips, recruiting participants, and serving as chaperones. As a result, the commission held that trips could not proceed until or unless they were brought into compliance with the ethics laws.

According to the Honolulu Star-Advertiser:

Judge Rhonda Nishimura repealed the Ethics Commission’s Aug. 4, 2015, memo and Aug. 19, 2015, advisory opinion today after hearing oral arguments. She said because the advice applies to a broader group, the process is subject to official rulemaking under law, which involves the public.

“So for the state Ethics Commission to issue such an advisory opinion and guidance memo that has a broader application than just a particular teacher or particular trip, does require that the entities involved engage in rulemaking,” Nishimura said.

The basis for the ruling appears to be that the commission’s “guidance” was actually a rule of general application which should have been adopted pursuant to the Hawaii Administrative Procedures Act, Chapter 91 HRS.

HSTA, represented by attorney Colleen Hanabusa, had previously made this argument directly to the commission, which rejected it. HSTA then appealed the commission’s ruling to the Circuit Court.

HSTA questioned the ethics commission’s application of the gift provisions of the ethics law, which prohibit soliciting or accepting any gifts “under circumstances where it can reasonably be inferred that the gift is given to influence the employees in the performance of the employees’ official duties or is intended as a reward for official action on the employees’ part.”

From HSTA’s “petition for a declaratory order or alternatively for a contested case“:

Clearly the dispositive language the EC has relied upon is “reasonably be inferred that the gift is intended to influence.” HRS §84-11. The question is without rules how does the EC and/or its staff arrive at the conclusion that the provision of the free trip is to influence by inference the teacher to take the trip. It fails to first acknowledge that the teacher does not decide who will take the trip, the parents do. The EC refuses to give weight to, although it does concede, that the teachers conduct lessons and act as chaperones on the trip. However, no matter how “unique and valuable the educational experience” may be, the EC has determined it would violate public confidence.

Then:

Where the dispute arises is in the question of whether it can “reasonably inferred” that it [the gift] was intended to influence. Rules are mandated under HAPA to ensure that these terms are not arbitrarily and capriciously defined and acted upon by the agency personnel. This is what HSTA contends has occurred here.

Just when is it reasonable to infer that a specific gift is intended to improperly influence a public employee or official? That’s what HSTA thinks should be addressed via consideration of a rule, with the protections provided for public participation in the process.

So what does yesterday’s court ruling mean in practice?

First, it rescinds the commission’s adoption of the educational travel guidelines.

Second, it establishes that the commission must go through the rule making process if it wants to adopt these guidelines.

Third, it raises questions about other applications of the same gift provisions as applied to legislators and other government officials.

It does not, however, appear that the court ruled that the commission’s interpretation of the gift law is wrong, only that it was not properly adopted as a rule of general applicability. So it doesn’t seem to prevent the commission from enforcing the same interpretation of the gift provisions in specific situations where a violation of the ethics code is alleged. Hopefully this will soon be clarified.

And I would think it is highly likely the commission will appeal the court ruling in an attempt to preserve its own authority to interpret and apply the ethics laws.

See also:

Ethics ruling stops student trips, at least for now (ilind.net 2/21/2015)

No More Free Trips for Hawaii Public School Teachers (Civil Beat, 2/20/2015)

Ethics ruling on free trips for teacher-chaperones deserves better media coverage (4/27/2015)

Ian Lind: Untangling the Ethics of Educational Travel (Civil Beat 6/3/2015)