A reader calling himself “Jerry” but otherwise remaining anonymous took me to task yesterday for not responding to a recent comment by Dan Mollway, former executive director of the State Ethics Commission.
Jerry wrote, in part:
I’m sorry, but this coverage of the local ethics commission is not your finest hour, IMO. Though I support your interesting coverage of other agencies, it seems as though you are saying things about the commission and transparency issues that turn out to be stretches. There is something wrong here and I guess it is best said that, maybe your expansive criticism about Lynne Waters saying nothing about the Wonder Blunder and not returning calls about the UH situation are really not much different than ignoring the posts of persons like Mr. Mollway who obviously know something of the system over there.
Mollway’s comment, and Jerry’s, were in response to the entry this week regarding the ethics commission’s informal advisory opinion regarding incomplete financial disclosure statements filed by UH West Oahu Chancellor Gene Awakuni.
To be honest, I’m not quite sure what Jerry’s point is, so I’ll just wander around it a bit.
First, you may have noticed that I don’t feel compelled to respond to every comment. Sometimes I feel it’s better to just lay out the information and let readers digest it and come to their own conclusions which, hopefully, will get shared as comments. It’s called a discussion rather than a monologue.
In this case, it’s a point that has been discussed here before (“State Ethics Commission opens new window on alleged violations“). That was another reason I didn’t feel an immediate response was necessary.
That said, let me address what I think is Mollway’s main point:
However, the Commission’s enforcement procedures, including investigations, are confidential by law until and unless a “notice” of a public hearing is issued. Thus, I do not know how more transparency is achieved unless the laws are changed.
Later, he underscored his point:
Anyway, transparency does not seem to be a matter of Commission discretion but rather only achievable if the laws governing the Commission’s enforcement procedures are changed. To say otherwise is sort of like saying something like we are now going to make grand jury proceedings more transparent, when they are of course secret by law. Since the “transparency” of the Commission’s enforcement proceedings are governed by law, there is no discretion here that I can discern.
Well, I think Mollway overstates his “no discretion” case here. It seems to me the commission’s use of a “Resolution of Charge” process has been leading to more public disclosure without changing the law governing formal enforcement proceedings.
The commission closed out several other cases this year through a relatively new “Resolution of Charge” process. In these cases, the commission collected enough evidence to back up their case, then agreed to drop further formal action if the person charged would admit to violating the ethics law, pay an administrative fine, and agree to public disclosure of the unredacted settlement agreement, including the violator’s name.
Earlier, I had described it this way:
It seems the commission is now leveraging its willingness to resolve cases short of formal charge proceedings in order to obtain the agreement of alleged violators to public disclosure of their cases. In most cases, that sounds like a win-win approach.
The process does not involve the commission in bargaining, Kondo stressed when I spoke with him earlier this week. The person facing an ethics charge always has the choice of asking for a full hearing, at which point the proceedings and supporting documents are opened to the public. However, the commission has offered to resolve the charges without going through the longer, more expensive, and more public hearing process if the person being charged agrees to acknowledge the violations, pay a fine, and agree that it will become part of the public record.
That type of resolution doesn’t appear to conflict with the ethics statute, and more frequent use of this approach would be a policy change that will make details of more cases public.
What do you think, Jerry? Dan?
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Ian, thanks for responding. To me that was the main point. I felt that Mollway had some valid points and frankly I wondered if Kondo is schmoozing in a bit of a grandiose manner about how much he is doing when, in fact, it is not really that different at all.
As you probably know, my bone to pick on the coverage of the commission is not only with you. I have been flabbergasted that there have not been more questions asked in the media about the two year lapse between complaint and resolution over the Family Focus/Catholic Church lobbying case. I can’t understand why no one asks the question and not only you. That is, to me, as deafening a silence as that of Lynne Waters. But I am starting to get tired of asking that someone ask the questions and I don’t want to be painted with a brush stroke that my motivations are anti-church or anti-religious – my attitudes in that subject area are just the opposite.
I applaud you for answering and I assume that dialog over the law can continue with people sharper than me. I will raise the white flag on the lobbying case. Obviously, no one sees anything worth asking about it. I hope if anyone complained about me doing something wrong it would take at least two years to cite me. And, that absolutely no one would ask why I got the gentle treatment.
Anyway, good on you, Ian. I like much of what you say on other issues and there’s nothing wrong with disagreement at times. I hope you can understand my point on the issue that originally concerned me with the commission.
Existing law makes transparency difficult for the Ethics Commission.
Of course, this shields politicians and others from public exposure, so it may be difficult to pass corrective legislation.
You are 100 percent correct but Ian finds Mr. Kondo to be changing everything, I guess. His points are difficult to figure out in light of the law, which you and Mr. Mollway both have pointed out.
Ian, as I later surmised, I think we are talking about two different issues here. (And now, maybe three.) As I stated in my comment on October 10, you described Les Kondo as saying: “Kondo said the commission is seeking to be more transparent in its investigations of ethics violations.”
I presumed that sentence referred to transparent while investigations are being conducted. It seems you, Ian, are actually, instead, talking about more publicity about cases that have been settled (i.e., finished).
As I think I have stated before, while I was director, I and the Commission settled cases and put the settlements on the Web site. I don’t see anything new here as to transparency on that point. I was the one in charge of creating the Web site in the first place, and I think long before most of my counterparts on the mainland. Further, as an example, I had public financial disclosures posted (1998?) while federal judges nixed the idea for themselves (that was later changed, I believe, when certain members of Congress objected.) I proceeded as quickly as possible to have all our public documents put on the Web site. This transparency has allowed you and others to look at the Commission’s public documents at home, etc., via the Internet. That was the whole point. The whole point was to get the information out there, and that of course included posting settlements on the Web site as a deterrent as well as for educational purposes.
Since all the powers of the ethics commission are established by law as well as the meaning of certain terms, this apparently leads to more confusion. You state in your headline to your blog, “Does the State Ethics Commission have discretion to make complaints public?” Under the law, a complaint, as you know, is the first thing filed by the Commission or a citizen alleging a violation of the ethics code. These are confidential by law when issued by the Commission. Citizens, on the other hand, have a First Amendment right to make their charges public–something you know I vigorously fought for in the early nineties (more transparency again). This was achievable, as you know, because the law barring citizens from making their charges public was unconstitutional.
The Commission cannot make its investigations and charges public. This is, of course, before a case is settled. In settling a case, the Commission can ask the alleged violator to agree to public disclosure, and to what extent. (As a comparison, note that many (most?) civil lawsuits are settled with confidential settlements.) The Commission has leverage in having “public” resolutions, since if the alleged violator does not agree, the Commission can ultimately go on to hold a public hearing to determine if the law has been violated.
In my comment I asked for clarification, since it appeared you were describing Les Kondo as saying investigations might become more transparent. I stated that there was no discretion with that, as the process is confidential by law at that point.
If you want to maintain that there is now more transparency after cases are settled, I think that is a different issue. I don’t think there is any more transparency than before, and I think Les Kondo has stated this himself, saying he is doing nothing new.
I think it is also fair to consider that the Commission is a developing entity (just like the courts, law enforcement agencies, etc.) When I became director, I was able to do things because of the groundwork laid by prior commissions and staff for 18 years. I sought to move the process forward, as my predecessors had done.
It seems there is a mixing of the general meaning of words and the legal meaning of words, as well as what exactly is being discussed. Ian, you make good legal arguments, so I presume, especially in light of your long experience with the Commission, that you are using the language of the laws that give the Commission its powers. Otherwise, I would presume you would clarify terms in your blog–for example, words used in a headline that may have a special meaning in the law.
My concern is that what the Commission has no discretion to do not be misconstrued.
By something of analogy, I would read the heading to your blog here along the lines of: “Does the prosecutor have discretion to make grand jury proceedings public?”
Ian, thank you for providing a good forum for these issues, along with the other many areas you deal with. It seems here we are just having problems because it is difficult to understand exactly what is being discussed. By law, the Commission is required to educate the public about its laws, etc. I think it is important that the Commission’s powers are clear. Otherwise, there is the risk of making statements that are misleading, which I do not think ultimately help at all.
While you were the ED, did you send out press releases to the media after a case was settled?
Natalie, yes I did. Each settlement went out to the media with a press release, and I think we copied legislators, and other high-ranking officials in the Executive Branch and Judiciary. Not exactly sure about the last two. Anyway, certainly a press release went out, and we posted it on the Web site. I think, most of the time and probably all the time, the press release and settlement was sent to legislators and others. Again, the whole point of enforcement is to let people know for the purpose of information and deterrence. These cases were almost always covered in the Advertiser at the time and often in the Star-Bulletin. This was also the case with our public “redacted” informal advisory opinions that indicated a violation. The facts of most of these cases were widely known and unique, so the media was able to guess who the opinion was about, though the name was not mentioned in the opinion. The late Professor Allan Saunders, a mentor of mine and many others, schooled me on the value of “merciless publicity” as a tool.
I think it is important to keep in mind that Web sites did not come into being at state government agencies until the very late nineties or later. I became the ED in January of 1986, long before the widespread use of the Internet. Thus, we were used to mass mailings of things we wanted people to see. Since the time I was the ED (except for maybe the first nine months), we were in a private office building, and unable to connect up to the State’s system, so had to develop our own, but I think we were still keeping pace if not ahead of other state agencies as to having a Web site.
I wonder if that practice (press releases) is maintained by Les. It seems if it were, at least Civil Beat would have picked up on the Awakuni violation. And if they aren’t sending out press releases, his comment about the commission’s “biggest stick” being public shame doesn’t hold much water in my opinion.