An editorial yesterday in the Star-Advertiser calls the State Ethics Commission’s recent firing of its executive director “mystifying”, blasts the commission for not being clear and forthcoming about its reasons for the action, and urges the commission to quickly disclose the minutes of its discussions in executive session, implying that a failure to do so would indicate that things are not on the “up-and-up.”

Perhaps the commission’s actions wouldn’t appear so “mystifying” if either the Star-Advertiser or its predecessors had actually been reporting on the commission and its activities, or if any real reporting had been done beginning early this year when Dan Mollway’s possible termination first became public.

Without any real reporting on what was happening behind the scenes at the commission, the editorial writers’ feeling of being “mystified” by events is self-inflicted.

I don’t have any insider information about the deliberations that led to the Mollway’s dismissal, but, based on nearly three-decades of experience with the commission, I’m not surprised by it.

I started dealing with the commission in 1983, about the time that Mollway joined its staff as assistant to the then-director, and I’ve had continued contact over the years as a public interest activist, newsletter publisher, investigative reporter and blogger.

Despite Mollway’s extensive knowledge of the issues involved in government ethics and his long institutional memory, there have clearly been problems at the commission.

Although the Star-Advertiser and some outside critics say the problems cited publicly by the commission are “manini”, it is very unusual for the professional staff of an agency to unite in seeking outside intervention in the internal administration of the office, as happened at the Ethics Commission. That was clearly a symptom of serious and, I suspect, longstanding problems.

The commission has not had an effective presence at the legislature for some years, and its legislative initiatives have floundered, for whatever reasons. It’s easy to put all the blame on the legislature, but when such problems persist, some responsibility inevitably flows back to the agency and its leadership.

At one time, the commission was quite active in the Council on Governmental Ethics Laws (COGEL), a professional organization of agencies dealing with ethics, lobbyist regulation, and campaign finance. In 1994, Hawaii hosted the group’s annual conference, and Mollway served on the organization’s board for several years. But while the commission is still a COGEL member, active involvement in the national appears to have waned.

I’ve also been critical of the commission’s lax enforcement of existing lobbying disclosure requirements. When my 2007 complaint about undisclosed lobbying expenditures by the Hawaii Superferry revealed that it had reported less than 6% of its actual costs, I thought it might prompt the commission to reexamine the way it reviews lobbyist reporting compliance. Didn’t happen, as far as I can tell.

Last year, just for fun, I tried my own limited “audit” of lobbyist filings, comparing their reported expenditures with the “gifts” that legislators reported receiving. Even this cursory review yielded obvious discrepencies.

And when I wrote to Mollway and the commission concerning the apparent failure of McDonald’s to disclose the costs of its annual legislative reception, I didn’t get even a simple acknowledgement of the letter or any followup of any kind.

Again, when these problems persist, for whatever reasons, the executive director is ultimately responsible.

The Star-Advertiser blasted the commission for not being clear and forthcoming about the reasons behind Mollway’s dismissal.

But this ignores that state law barred the commission from making such disclosures for privacy reasons, at least while the process was underway.

The law provides (Section 92F-14 HRS) that certain information is exempt from the privacy protections, including the reasons for an employee’s discipline or discharge.

However, this disclosure by the agency can’t be made until all non-judicial grievances have been resolved and 30 calendar days has passed since the agency’s written decision upholding the firing was issued. If all grievance procedures have already been exhausted, then the 30 day clock is running.

However, these provisions apply to “information related to employment misconduct that results in an employee’s suspension or discharge….”

The commission, meanwhile, has said misconduct was not an issue, rather, apparently, pointing to administrative inadequacies and communication issues. So whether the “misconduct” disclosure provisions apply remains somewhat hazy.

The matter of disclosure could have been resolved by Mollway, who could simply have disclosed all of the commission communications himself or authorized their disclosure. This was apparently discussed, according to published accounts, but in the end not done.

All said and done, 24 years is a long time for anyone to head a key agency, especially one that is subject to so many cross-pressures from varied political interests. It’s to Dan’s credit that he was able to do the job for this long in the face of sometimes fierce outside pressures. It’s also to the commission’s credit that it took the action necessary to address the administrative problems.