The State Ethics Commission has released its draft of the first batch of administrative rules, which will be discussed during the commission’s meeting scheduled for next Monday, October 2, at 10 a.m.
The meeting has been posted on the official state calendar (use the link above), but the draft rules had not yet been posted on the commission’s website as of early this morning.
However, the initial set of rules, designated Chapters 1-3, can be found here.
I’m just starting to review this initial set. If you have comments on the proposed rules, please share.
The commission was forced to reduce its guidance into administrative rules as the result of a 2016 court decision (see iLind.net, “Judge says ethics guidelines must be adopted as rules to be valid“).
Here’s some of what I wrote at that time.
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Judge Rhonda Nishimura repealed the Ethics Commission’s Aug. 4, 2015, memo and Aug. 19, 2015, advisory opinion today after hearing oral arguments.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.