Tag Archives: Hawaii State Ethics Commission

About those free tickets….

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Remember those free season tickets to UH athletic events that top level university administrators and members of the Board of Regents disclosed to the State Ethics Commission?

The issue of free tickets came up in a 1996 Advisory Opinion issued by the commission, and guess what? Those perks may violate provisions of the state’s ethics law.

In Advisory Opinion 96-1, the ethics commission looked at the question of whether the ethics law restricts an agency’s distribution of free tickets. If I recall correctly, this case involved the Stadium Authority, which controls Aloha Stadium.

Historically, the commission found, free tickets had been given to agency officials and some elected officials, with extra tickets provided “for the purpose of having their family members, friends, and guests accompany them without charge to events.”

At the time the commission stepped in, free tickets to all major events were going to some officials of the agency, a former employee, a deputy attorney general assigned to the agency, and the head of a company that provided services under contract.

The commission cited Section 84-13 HRS which “prohibits an employee from using the employee’s official position to secure an unwarranted privilege or advantage for the employee or for others.”

§84-13 Fair treatment. No legislator or employee shall use or attempt to use the legislator’s or employee’s official position to secure or grant unwarranted privileges, exemptions, advantages, contracts, or treatment, for oneself or others; including but not limited to the following:

…

(2) Accepting, receiving, or soliciting compensation or other consideration for the performance of the legislator’s or employee’s official duties or responsibilities except as provided by law.

The commission determined that free tickets could not be given out in a way that would create unwarranted privileges or advantages.

The commission reasoned that tickets could be used for marketing and promotional purposes, and could also go to certain public officials as a matter of traditional protocol. However, the commission insisted that there must be a valid state purpose before anyone can be given free tickets, and that the provision of additional tickets for friends or family members would generally not be allowed.

The commission then spelled out guidelines to be followed.

1. Tickets and seating that were controlled by the Agency were state property, and could not be used to grant unwarranted privileges or advantages to Agency officials or others.

2. The distribution of free tickets or passes to any person by the Agency had to serve a valid state purpose.

3. Persons who could receive free tickets or passes included the following:

a. Persons with a work relationship to an event;

b. Government officials on official business related to an event under the jurisdiction of the Agency. Tickets and passes could not be distributed routinely to government officials in the absence of an official business purpose.

c. Persons involved in encouraging organizations to hold events that came under the jurisdiction of the Agency; and

d. A limited class of dignitaries and other persons who fell within traditional protocol rules. Questions as to whether or not persons fell within traditional protocol rules had to be reviewed by the Commission on a case-by-case basis.

4. Additional free tickets or passes for guests could not be distributed to Agency officials or to other government officials unless there was a valid state purpose related to their acceptance and use.

a. It did not serve a valid state purpose to distribute additional free tickets or passes to Agency officials or other government officials so that they could be accompanied to events by a spouse, family members, or other personal guests.

5. Agency officials and other government officials should return unused tickets or passes to the Agency before an event was held, or if that was not possible, as soon as possible after an event, to provide accountability for the use of those tickets or passes and to obviate concerns about the possible misuse of tickets or passes.

6. The Agency should maintain, for each event, a written record of persons or organizations to whom free tickets and passes were distributed to enable review by the Commission of any ethics questions or complaints that could arise in the future. Keeping such a record also comported with normal administrative practices of accountability.

In applying these guidelines, the commission decided that although the agency’s deputy AG could arguably have a legitimate reason to be present, there would not be any valid state purpose in providing additional tickets for those accompanying the deputy.

The agency, believed to be the Stadium Authority, floated many kinds of justifications for its free ticket policies, most of which were rejected by the commission.

I phoned the commission last week and was told this 1996 opinion had not been superseded or reversed, and still reflects the commission’s position on the handling of free tickets.

Where does this leave the university? It looks to me like the distribution of free tickets to officials is going to have to be pared down significantly, and the past practice of providing tickets on request for guests or family members will have to be re-examined.

Longtime State Ethics Director comments on secrecy of complaints, inadequate budget

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Dan Mollway, who served as executive director of the State Ethics Commission for over 24 years, submitted this comment overnight. I decided it deserved to be promoted to a main post. Comments welcome, as always.

A number of years ago I drafted as a first step and had introduced a bill to have all charges filed by the public made public, along with any answers to the charge filed by the respondent. The bill also required that the State Ethics Commission make public in writing the rationale for the final disposition of the charge, whether dismissed for lack of evidence, etc., anything short of a public hearing on the merits.

At present, nothing becomes public unless a notice is issued for a public hearing. Until 1995, even our hearings were not public, until I had introduced a bill to address that, and succeeded.

I also introduced legislation in the early nineties to rid our ethics statute of a law that made it a felony for a member of the public to comment publicly on a charge he or she had filed with the State Ethics Commission. Ironically, no matter the seriousness of the violation of the ethics code at the time, it was not even a crime–not even a petty misdemeanor–but a citizen’s public statement about the filing of a charge was a felony.

The bill did not become law, but our office was sued later in regard to the statute, and the federal district court struck down the law as unconstitutional.

Shortly thereafter, the Campaign Spending Commission, as I recall, went after Ian Lind for publicly commenting on a complaint Ian filed with that agency, which was a misdemeanor at the time. The attorney general’s office, I recall, pursued that complaint to federal district court and lost, and then appealed the loss to the Ninth Circuit, which upheld the decision in the federal district court, and chided the deputy AG for his rationale put forth in the case against Ian.

[Lind v Grimmer, 9th Circuit Court of Appeals, decided July 22, 1994.]

I was quoted in the newspaper supporting the decision in favor of Ian in the 9th Circuit. I heard shortly thereafter that the deputy AG involved felt that it was absolutely improper for me to have spoken publicly in favor of the decision because I was a “fellow” state official.

The State Ethics Code is in general a good code, and rated one of the best in the country. However, much reform legislation is needed, along with continuous initiative on the part of the State Ethics Commission.

One very important issue that is generally overlooked is resources. The total budget of the Commission is less than the salary of the UH football coach. That alone should put things into perspective. Having five attorneys and four support staff enforce lobbying at the state level and ethics for 76 legislators and about 70,000 state officials, state employees, and state board and commission members is something like having five firemen with garden hoses in Honolulu.

Anyone with a longing for ethical lobbying and ethics in government at the state level might begin by first advocating for a budget commensurate with the task and a staff adequate for the job.

State Ethics Commission deserves more credit for dealing with administrative problems

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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.

Ethics Director could face termination at Wednesday morning meeting

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The State Ethics Commission is scheduled to meet Wednesday morning to determine whether its longtime executive director will retain his position.

The agenda for the 9:30 a.m. meeting indicates the commission will consider public testimony before going behind closed doors to consider Mollway’s future.

A 4-page sanitized version of the findings of a commission investigation was made public late last month.

According to this public report, the commission’s professional staff contacted the commission in December 2009 with concerns about Mollway’s actions and falling staff morale. The commission responded by interviewing all of its staff, reviewing personnel records, records of Mollway’s presence in or absence from the office, including sign-out sheets and applications for leave, as well as internal and external emails between Mollway and others.

Commission staff apparently were concerned about Mollway’s “apparent disengagement from the office and the staff.”

A review of office records confirmed Mollway had “a pattern of use of his leave time in such irregular small increments that his time actually spent in theoffice was very sporadic.”

While the report indicates commissioners appreciate Mollway’s intellect and experience, its investigating committee found “the Commission cannot function with an Executive Director who is not appropriately engaged as the office administrator/manager.”

The commission’s evaluation of Mollway will be held in closed executive session unless Mollway requests that it be open to the public.