The Hawaii State Ethics Commission has not published a single advisory opinion since 2006, part of a dramatic decline in requests by state employees for ethical direction.
Meanwhile, charges of ethical violations spiked in the 90s and have since been on an erratic path.
Between 1968 and 1985, the commission issued 570 advisory opinions, documents published on the commission’s website after a request is made by a legislator or state employee to determine whether a scenario would constitute a violation of the state Ethics Code or the Lobbyists Law. In the 17 years between 1968 and 1985, the commission published an average of 34 opinions a year.
Then, between 1986 and 2006, 65 opinions were written — an average of a little more than three per year. Since 2006, the commission hasn’t published any advisory opinions.
The implication is that either lawmakers and public employees need less help interpreting state ethics laws — or the commission has written so many precedent-setting opinions that advisory opinions are no longer necessary.
The Ethics Commission writes three types of opinons: the advisory opinion, which answers ethical questions; the informal advisory opinion, which address allegations of ethical violations; and formal advisory opinons, which are used when a public official or employee disputes a charge, takes it to a formal hearing, and loses.
Former Ethics Commission Executive Director Dan Mollway tells Civil Beat that the drop-off in the number of advisory opinions isn’t cause for alarm. The current executive director, Les Kondo, said Mollway was better positioned to comment because Kondo just took office in December 2010.
“I don’t think anything has really changed, I think it’s just been an evolution of the commission,” Mollway told Civil Beat. “At some point, it issued so many of these as to set enough precedent… and at the same time, a lot more is understood by state employees and lobbyists. So there’s less of a need.”
But as the number of advisory opinions has shrunk, the use of informal advisory opinions has risen. These are issued when a state employee or official is charged with an ethics violation either by the commission or by someone who witnessed the alleged violation. While a total of 119 informal opinions have been published since 1972, the vast majority — 102 out of the 119 — were issued between 1994 and 2010, about seven per year.
In 1994 alone, there were 31 informal opinions issued by the Ethics Commission. In 2004, there were 19. Between 2005 and 2010, 10 informal opinions were issued.
Advisory opinions are wide-ranging. The very first opinion published by the commission involved a legislator asking whether, as an attorney, he or she could hire an employee from their firm to act as an administrative assistant for the legislative session. The opinion found that there would be no violation of the ethics code.
Another opinion, from 1986, was written after a lawmaker asked whether he or she could sit on the board of directors for a private, nonprofit corporation. Because the official received no compensation for serving on the board, the commission found no fault with the position.
In 1986, when Mollway officially took the reins as executive director of the commission, 12 opinions were published. The following year, there were eight. By 1994, only four formal opinons were written. In 2006, the commission published just one, the last such advisory opinion.
Mollway says that many ethics questions could be answered using past decisions. He and his staff were able to appropriately assist many lawmakers without having to draw up an advisory opinion.
“We had 600 to 700 and now over 800 opinions,” Mollway told Civil Beat. “And many of the questions, if you spent time gathering the facts, you could pretty much answer the question.”
Informal advisory opinions have been used more frequently in the past quarter century. Other than the peak in 1994, with 31 informal opinions, 2004 was also a big year, with 19 opinions.
The statute governing informal opinions says:
“Charges concerning the violation of this chapter shall be in writing, signed by the person making the charge under oath, except that any charge initiated by the commission shall be signed by three or more members of the commission. The commission shall notify in writing every person against whom a charge is received and afford the person an opportunity to explain the conduct alleged to be in violation of the chapter. The commission may investigate, after compliance with this section, such charges and render an informal advisory opinion to the alleged violator.”
If the commission finds a state employee or official was at fault with an ethical violation charge, the official or public employee can contest the ruling and take the matter to a hearing.
If an employee or official disputes a charge, they may take the matter to a hearing. If the commission finds the employee or official guilty of a violation, a formal advisory opinion is issued. In the history of the Ethics Commission, only four formal opinons have been published, most recently in 1989.