Top EC Officials' Obligations Relating to Discussions of Their Personnel Matters

Ethics commission leaders are falling like flies in Hawaii. I recently wrote about Honolulu's EC chair resigning in order to be involved in a mayoral candidate's campaign (he had already been involved in other campaigns). And last Wednesday, the state EC fired its long-time director, according to an editorial in the Honolulu Star-Advertiser.

The cause for the director's firing is not clear. The little evidence available points to the fact that he wasn't in the office enough, due to many vacation and sick days taken. But the EC says that it cannot disclose what was said in the executive session at which they discussed this personnel matter, and the director, who is said to be likely to appeal the firing, isn't talking. A suit would most likely keep the EC quiet for a long time.

The issue here is, despite the common exception to sunshine laws for personnel issues, do an ethics commission (including FOI and campaign finance commissions) and its top officials have an obligation to be open about major personnel matters such as this? Another way to phrase the question is, does a high-level ethics official have an ethical obligation to refuse an executive session to discuss his or her personnel issues, so that they can be dealt with in public?

According to §92-5(a)(2) of the Hawaii Sunshine Law (on the final page), "if the individual concerned [that is, involved in a personnel issue] requests an open meeting, an open meeting shall be held." This places the burden on the ethics official to request an open meeting once he or she has seen the agenda for the upcoming meeting, or at the meeting itself. Apparently, the Hawaii EC director chose not to. Although the burden is on the employee, the EC could expressly ask the employee before going into executive session. The EC's attorney should make the alternative of an open meeting clear to both the EC and the employee before the meeting, if possible, but certainly at the meeting. Too often, everyone believes there is no choice in the matter.

Looking at the minutes for the June 16 meeting, the EC's consultation with its attorney would still merit an executive session, and the director would not have been able to ask that this part be dealt with in public. But the director could have asked that his evaluation be dealt with in public.

The Star-Advertiser editorial is right to complain about the secrecy surrounding what occurred. Everything involving an ethics commission should be as above board as possible. It should set an example for transparency, just as the Honolulu EC chair should have set an example by not working in any way with or for officials or candidates who might come before his commission. Even though transparency matters are generally not within an EC's jurisdiction, the goal of sunshine laws and ethics laws are the same. It is important to understand this and educate the public both through one's words and one's actions.

Another reason why matters involving EC directors and other top personnel must be dealt with in public is that otherwise such matters can be seen as arising from politics. Typically, there is a misuse of office to push out those who have investigated and possibly fined an official. This sort of misuse of political influence undermines trust in the ethics process.

For example, if an EC director has been too zealous in going after certain officials, and these officials are involved in the selection of EC members or are close to other officials involved in the selection of EC members, firing a director can look to the public like retribution unless there is a clear, believable showing that this is not the case. One need only look at what happened a few years ago in Connecticut to see how ugly it can be for an EC to push out its director when he is going after a powerful official (see this New York Times article).

Transparency issues are not central to the work of most EC directors and other top personnel. They might not understand their role in having personnel issues relating to themselves dealt with in private or in public. That's why it is important that they understand that they have the right to ask for an open meeting on their personnel issues, and that their personnel issues are not like everyone else's. An ordinary official might be fired for political reasons, but her work is not providing oversight over the conduct of politicians. Ethics officials have an obligation to the public to override their desire to protect themselves from embarrassment or to protect the EC, with whose members they are often personally close, from having to deal with such sensitive matters in public. Their obligation, I believe, is to let the public know to what extent political influence might be involved in their firing or even poor evaluations. There should be an open paper trail of top EC personnel evaluations and actions.

For another view on the firing, see this ilind.net blog post from yesterday.

Robert Wechsler
Director of Research-Retired, City Ethics

---