This is probably way more than you want to read about ethics, conflicts, and disclosure, especially on Easter. But…
Yesterday’s post concerning conflict of interest declarations by members of the city’s Zoning Board of Appeals has generated an interesting discussion.
I started by observing that the advice of a city attorney that the board members’ written statements describing their conflicts are confidential appears to conflict with a section of the City Charter providing for mandatory public disclosure.
But in a comment late yesterday, “Jane” said my position was incorrect. She argued the mandatory public disclosure provisions of the City Charter apply only after the City Ethics Commission reviews a case and determines that a conflict of interest exists. Absent a ruling by the commission, the entire matter remains confidential, she argues.
Jane points to Sections 3-6.2(j) and 3-6.5(c) of the Revised Ordinances of Honolulu, and Section 4.13 of the the Rules of Procedure of the Ethics Commission (ROPEC). In her view, these provide a general policy of confidentiality for all matters before the ethics commission, with the secrecy lifting (in part) only after a commission decision. It appears the first citation should be to Section 3-6.3(j), rather than 3-6.2(j), which doesn’t exist.
In a short reply, Doug pointed out that the City Charter is at the top of the legal food chain, and both ordinances and rules must comply with it.
Let’s take a closer look.
The two ordinances related generally to complaints or requests submitted to the ethics commission, and not specifically to conflict of interest. In addition, they require confidentiality except where otherwise provided.
And tucked down in Section 3-6.5(e) is this sentence: “The disclosures of conflicts of interests as provided in Revised Charter Section 11-103 shall be made matters of public record at any time that such conflict becomes apparent.”
Looking further, although there are general provisions in the rules of procedure requiring confidentiality of commission proceedings, there is a very specific rule regarding the declaration of conflict required by the city charter.
RULE 9. DISCLOSURES OF INTEREST REQUIRED UNDER SECTION 11-103, RCH
9.1 Disclosures Required Of Any Elected Or Appointed Officer Or Employeea. Any elected or appointed officer or employee who possesses or who acquires such interests as might reasonably tend to create a conflict with the public interest shall make full disclosure in writing at any time such conflict becomes apparent.
b. The written disclosure need not be in any particular form but shall contain:
(1) The name, address and telephone number of the officer or employee;
(2) A statement of the interest possessed or acquired by the officer or employee;
(3) Any other information relevant to the matter; and
(4) The signature of the officer or employee.
c. Such disclosure statements shall be submitted:
(1) To the officer’s or employee’s appointing authority or to the Council, in the case of a member of the Council; and
(2) To the Ethics Commission.
d. Such disclosure statements shall be made a matter of public record and be filed with the City Clerk.
There is no indication in here that general secrecy rules would apply.
Further, there’s the Plain Language Guide to the City Ethics Laws, also found on the commission’s web site.
There, in plain language:
What should I do if I have a conflict of interest?
If you have a conflict of interest, you must immediately disclose it in writing to your appointing authority (usually your department head) and to the Ethics Commission. RCH § 11-103. Forms are available from your personnel office or the Commission office or web site. Your department head and the Ethics Commission may discuss ways to resolve the conflict, such as removal from participating in any way in the decision making process and delegation of the issue to another qualified person.
Remember that Section 11-103 RCH requires public disclosure.
Let me suggest how these layers of apparently conflicting provisions can be reconciled.
First comes the charter provision, which mandates says the disclosure statement is a matter of public record. This is the process followed when members of the City Council declare conflicts.
Any elected or appointed officer or employee who possesses or who acquires such interests as might reasonably tend to create a conflict with the public interest shall make full disclosure in writing to such person’s appointing authority or to the council, in the case of a member of the council, and to the ethics commission, at any time such conflict becomes apparent.[1] Such disclosure statements shall be made a matter of public record and be filed with the city clerk.
After the ethics commission receives a statement disclosing a conflict, it may take further action, including conducting an investigation, gathering documents, interviewing witnesses, holding hearings, etc. City ordinances and rules require those additional proceedings to remain confidential until a decision or opinion is rendered. But the rules do not, and cannot, override the charter provision as to the original declaration of conflict.
The original statement of conflict is public. The investigation will only become public as provided by commission rules.
Understood in this way, each of the provisions has its own place and there is no conflict.
However, one significant point remains to be made. The ethics commission rules of procedure contain an extremely broad confidentiality provision, as follows:
c. Pursuant to Section 3-2.3(g), ROH:
(g) Any individual, except as hereinafter provided, including the individual making the allegation, who divulges information concerning the allegation prior to the issuance of an advisory opinion by the Commission, or if the investigation discloses that the advisory opinion should not be issued by the Commission, at any time divulges any information concerning the original allegation, or divulges the contents of disclosures except as permitted by this ordinance, shall, if found guilty, be punishable by a fine of not more than $1,000.00 or imprisonment of not more than one year, or both, except that an officer or employee shall be subject to the provisions of Section 11-106 of the Revised Charter.
However, the underlying ordinance was amended following my successful challenge to a similar Campaign Spending Commission rule (see Lind v. Grimmer). The attempt to impose such a broad gag rule was rejected as unconstitutional by Honolulu’s federal court and by the 9th Circuit Court, and the U.S. Supreme Court declined to hear an appeal.
Note that the city ordinance was later amended to apply the confidentiality requirement only to commission members and staff, and not to “any individual.”
To avoid confusion, the commission’s rules should be similarly amended.
And so it goes on this easter sunday.
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Happy Easter, Ian. Hope the Easter Bunny was good to you!
Too bad Andrew’s comments weren’t in time to be included in part II, because he has cleverly nailed down the beast that I neglected to adequately emphasize – that we are talking about two different animals here, each with different stripes, or rules. As such, the charter, ordinances and rules don’t conflict; they’re quite clear.
Animal (1): If a board member knows he has a conflict, he must publicly disclose it, period. And,
Animal (2): Where a board member isn’t sure whether he has a conflict, he may seek a ruling from EC, and, like it or not, that process is confidential.
I can only assume the distinction fosters a compromise between our (i.e., in this case the board members’) individual state constitutional right to privacy, and the public’s right to know what motivates those who choose to serve the city. Works for me.
Bottom line remains. EC won’t be providing those written statements to Ms. Wong (because they can’t), so she can save herself a trip to the Hale on Monday morning. Unless Animal (2) results in Animal (1), Animal (2) is confidential.
A hui hou.
Does the EC disclose (anonymized, as needed) advisory opinions regarding situations found not to be conflicts so the public can, at a minimum, see how the EC arrived at the decision?
i.e., if a board member seeks a ruling from the EC and the EC finds the facts do NOT indicate a conflict, how will the public ever even know?
One can easily imagine scenarios where the EC is faced with a close call and fails/neglects to find a conflict. Is there any meaningful appeal of an EC decision? I can’t see how there could be, if a gag rule forbids any dissemination of the facts and allegations! One can also imagine an unethical figure seeking an advisory opinion before a conflict is manifest and then later claiming some perversion of a “double jeopardy” protection.
The irony of labeling these EC opinions “disclosures,” is noted, and rich.
Yep, the EC’s advisory opinions are on their website under ‘advisory opinions’ and many result in a finding of ‘no conflict.’ There’s an index to make your search easier.
No matter what city and county rules, ordinances or the charter say I can’t find any exemption under the state UIPA. The question of whether there is a conflict does not fall under any privacy provisions of the controlling HRS 92F which, if applicable, would weight that privacy against the public interest.
But privacy does not apply here since presumably the underlying information is contained in the disclosure statement which is a public document to begin with.
In other words what exactly is it that would be a private in the first place? And even if there were something the very nature of a public disclosure statement- where presumably the potential conflict would be disclosed- is anything but a private matter by definition.
And if we’re talking about any other exemption under the UIPA I’d like to hear it.
Andy, a case could be made (although not enthusiastically by me) that releasing the information before the EC has ruled would, in the words of HRS 92F-13 “frustrate a legitimate government function.”
Clearly, that is a giant loophole.
However, if the County Charter says to release it, then that UIPA argument is moot.
Andy is correct, chapter 92F, HRS trumps the County Charter and ordinances and the Ethics Commission is an “agency” for purpose of chapter 92F, HRS. There is no exemption in 92F-13 for records made confidential by county ordinances.
I don’t know who the Deputy Corporation Counsel or Jane are, but the Revised Charter of Honolulu clearly supersedes any ordinance or rule. The documents regarding conflicts of interest are public. Once again, the City is being obstinent! A quick lawsuit would result in the City releasing the records and paying attorney fees to the person bringing the suit. Just let us know if the concerned parties want to file suit. Easy pickings!
Freshstart222 doesn’t know the Deputy Corporation Counse or Jane but he is sure that once again, the City is being obstinate?
I don’t know who Freshstart222 is but I do know that a Corporation Counsel opinion is not given out without a thorough review of applicable law and court cases. They are charged with helping the government agencies follow the law and applicable regulations in their actions.
Just because you don’t agree with the interpretation of City law that is frustrating you does not meant that “the City” is being obstinate, it just means that the lawyers for the City don’t agree with you and feel that the City agency would be breaking the law if they acted the way that you want them to. That is what Jane asserted would be the case if the disclosure was made.
Reasonable people can disagree, and maybe this has to be sorted out before a judge.
And I wonder why nobody has asked Chuck Totto, Executive Director and Legal Counsel for the Ethics Commission, what his view of the issue is. Chuck is an independent and reliable source without a political axe to grind.
Off topic, but I wonder why the recent incident involving the publisher of Maui Time, Dog Chapman’s crew, and a Maui cop remains pretty much off the radar, despite the video that’s available.
http://www.mauitime.com/Articles-i-2011-04-14-75934.113117-MauiTime-Publisher-Tommy-Russo-Assaulted-By-MPD.html
There are serious issues at stake here, including the right of the public and journalists to shoot video in public places, and what level of professionalism to expect from police after calling them for help.
It certainly appears from the video that the Maui cop “starring” in this brief production committed an assault. Disputing an agitated person’s right to shoot video doesn’t provide a right to smack him around, as far as I know.
And, of course, none of this reflects too well on the Dog crew, but that’s not saying much.
Violent video usually ends up on TV pretty quickly, but I guess this time it just wasn’t frivolous enough.
Maui, I saw this reported in some detail on Hawaii News Now’s (pretty sure it was them) multi station broadcasting network a day or two after I first saw the web video. i guess the question is does the media let this story peter out or keep digging. and i think we all know what’s going to happen..
This extended comment was submitted by Barry Sullivan, who represents Kyo-ya Hotels.
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Your original post that prompted this discussion stated, “Donna had a question stemming from a meeting of Honolulu’s Zoning Board of Appeals on Thursday. She said two members of the board announced they had possible conflicts, and that they would be submitting written statements to the Honolulu Ethics Commission for a ruling.” That is not my recollection of what happened. I am the attorney representing Kyo-ya Hotels in this matter before the ZBA.
My recollection is that the acting ZBA chairperson, Ronald Ogomori, advised those appearing at the hearing that two members of the Board wanted to make a statement regarding their relationship with parties to the appeal. First, Board member Susan Berardy stated that she was recusing herself from participation because she does business in some capacity with Kyo-ya Hotels. I recall no “written statement” having been promised or having been made. Further, as Ms. Berardy simply recused herself – which is the ultimate recourse if there were to be an actual conflict – there would appear to be no need for further statement. It was also clear to me that the Board was not seeking an advisory opinion from the Honolulu Ethics Commission regarding Ms. Berardy for the same reason – she had recused herself.
Second, Board member Herbert Chock disclosed that in the past he had done work for either Kyo-ya Hotels or Sheraton (which is not an affiliate of Kyo-ya) relating to construction management but was not doing work and had not done work in some time for such entities. This was not disclosed as a conflict but a disclosure of fact to determine if any party had an objection. Linda Paul, a licensed Hawaii attorney who appeared on behalf of Hawaii’s Thousand Friends (but who stated that she was appearing on behalf of such entity as a “member” as opposed to as their “attorney”) objected to Mr. Chock’s participation. Ms. Paul was asked to state the basis for her objection and she stated, in essence, that she believed anyone who had done business with Kyo-ya Hotels simply has an ethical conflict and cannot act on matters concerning such entity.
None of the other co-petitioners appeared at the hearing.
All other parties appearing at the hearing stated no objection based upon Mr. Chock’s oral disclosure. Appearing was counsel for the landowner/intervenor Kyo-ya Hotels (me), corporation counsel for the Planning Director (Donald Kitaoka), counsel for proposed intervenor Hawaii’s 20,000 Friends of Labor (William Meheula), and counsel for proposed intervenors Land Use Research Foundation and Hawaii Developer’s Counsel (Andrew Beamon).
In light of Ms. Paul’s objections, the Board voted to continue the proceedings by two months while the Board sought the advice of the Ethics Commission regarding Mr. Chock or, alternatively, to give time for the Mayor to appoint a temporary member so that a quorum of three Board members could hear this particular petition. The ZBA has five members and quorum is three. As Chairperson David Minken and now Susana Berardy had recused themselves, there would be only the bare quorum of three members if Mr. Chock was able to serve. If he could not, there would not be a quorum.
As for the determination of whether Mr. Chock has a conflict, it is governed by ZBA Rule 21-7 entitled “Conflict of Interest.” Rule 21-7(a) provides that, “When a member of the board discovers that he or she may have a conflict of interest in any proceeding before the board, the member shall disclose the conflict.” There is no provision in Rule 21-7 that requires the disclosure be made in writing. Rule 21-7(c) provides that “The member who has disclosed a conflict of interest shall not participate in a proceeding unless it is determined by the board that there is no conflict, or unless all parties agree to the member’s participation in the proceeding.” As “all parties” will not agree to Mr. Chock’s participation, it is up to the Board to determine if there is or is not a conflict. I understand it is the practice of the Board to solicit an advisory opinion from the Honolulu Ethics Commission in such cases although such opinion is, by law, advisory only and not binding upon the Board.
Whether that solicitation by the ZBA of an advisory opinion from the Honolulu Ethics Commission relating solely to Mr. Chock is itself a public record, and whether that request for an advisory opinion would contain more than the transcript of Mr. Chock’s oral statement (such as a written statement by Mr. Chock), appear to be a valid point of legal debate in which reasonable minds may differ. As Hawaii’s Thousand Friends have already objected to Mr. Chock’s service on the Board for this matter, and given that your readership appear to agree that any advisory opinion that is issued is in fact a public record, it seems that what I took as the primary implication of your post – that the public is being denied information through legalism – is not a fair implication.
Barry
* * *
Barry A. Sullivan, Esq.
Bickerton Lee Dang & Sullivan
So, after all this interesting debate, has Ian’s friend went to request the information from the City Clerk? Was the information handed over? If not, then what comes next?