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 Employee

a. 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.