UPDATED 8/26/11 4:15 p.m.
Les Kondo, executive director of the Hawaii State Ethics Commission, has drawn the ire of some legislators for his hard line on accepting meals and gifts, disclosing financial interests and lobbying by task force members.
But Kondo, who was appointed unanimously by the agency’s five commissioners in January, told Civil Beat in an interview that he and his office are misunderstood by critics.
“I think there are a lot of people at this point that don’t appreciate that we are here and part of the team — meaning part of the big state of Hawaii team,” he said. “That guidance function is really to help state employees, legislators included, understand where the commission views the lines — how the commission interprets the ethics code.”
Those lines are spelled out in black and white in Hawaii Revised Statutes Chapter 84, which sets standards of conduct for state officials, and Chapter 97, which does the same for lobbyists. A user-friendly version is also posted on the commission’s website.
“We’re not here to trap anybody,” said Kondo. “We are not grandstanding or trying to embarrass people. I want people to understand and see the playing field the same way the commission sees the playing field.”
But Kondo also makes clear that he and the commission have placed new emphasis on enforcing the ethics code.
“My impression is that at some point the commission is not going to be as sympathetic when people say, ‘Hey, I didn’t know’ or ‘It’s been like that in the past, I’ve just done it,'” he said. “I think the commission is going to come hard at people. It’s my impression the commission is going to be very aggressive in enforcing the ethics code.”
Kondo, 48, a veteran government official and former private litigator, has drawn attention during his brief tenure at the Ethics Commission.
During the legislative session, for instance, he issued an opinion barring lawmakers from accepting $200 tickets to a fundraiser held by the politically influential Hawaii Institute for Public Affairs.
Lawmakers tried, unsuccessfully, to rewrite state law to allow them and other state employees to accept and solicit meals, travel and other gifts.
In May, Kondo said members of a state Mortgage Foreclosure Task Force may have violated ethics laws. That issue remains a sore point, with state senators and representatives arguing that the opinion will make it difficult to name experts to task forces.
And, earlier this month, Kondo nixed the idea of Hawaii lawmakers and staff accepting an invitation to an upscale San Antonio restaurant. The lawmakers, who were in Texas as part of the National Conference of State Legislators, were invited to the dinner by the Hawaii Chamber of Commerce, the Hawaii Medical Services Association, Outrigger Enterprises, Island Insurance and Goodsill Anderson Quinn & Stifel.
“We understand that many of the legislators and staff who had intended to attend the dinner were disappointed,” Kondo wrote Senate President Shan Tustsui and House Speaker Calvin Say. “The State Ethics Code, however, prohibits a state legislator or a state employee from receiving or accepting a gift, including food and drink, if it can reasonably be inferred that the gift is being used to influence or reward the employee or legislator. As you know, the statute is violated if there is a reasonable appearance that the gift is offered with the intent to influence or reward official action.”
Kondo underlined the word “appearance” and footnoted the appropriate statute.
Asked for a comment on Kondo’s performance as Ethics Commission executive director, House leadership declined.
But Jim Boersma, Senate director of communications, said in an email Monday that the Senate and House were both waiting for a legal opinion from the Attorney General’s Office regarding Kondo’s opinion on task force lobbying.
Kondo and the commission may be garnering a lot of attention, but the commission has been around for decades.
It was established in 1968 to enforce governmental ethics and lobbying laws spelled out in the Hawaii Constitution. In 1978, the Constitutional Convention added a Code of Ethics, which appears under Article XIV.
The code, three paragraphs in length, begins with this sentence:
“The people of Hawaii believe that public officers and employees must exhibit the highest standards of ethical conduct and that these standards come from the personal integrity of each individual in government.”
The code applies to all “appointed and elected officers and employees of the State or the political subdivision, respectively, including members of the boards, commissions and other bodies.” Justices and judges are excluded.
The commission has five members who are appointed to four-year terms by the governor from a list submitted by the Judicial Council (not to be confused with the Judicial Selection Commission), a board attached to the Hawaii Supreme Court. The appointment process is intended to ensure commissioners’ independence and impartiality. State Senate confirmation is not required.
UPDATED The five members are:
• Chair Maria Sullivan, an attorney appointed by former Gov. Linda Lingle
• Vice Chair Leolani Abdul, who works in commercial real estate, appointed by Lingle
• Les Knudsen, a retired hospital administrator, appointed by Lingle 1
• Edward Broglio, a retired U.S. Postal Services manager, an appointee of Gov. Neil Abercrombie 2
• Jacqueline Kido, an attorney and Abercrombie appointee
The commission meets about once a month with the executive director and issues advisory opinions and investigates allegations of ethics and lobbying violations of the ethics and lobbying laws.
The commission was in an awkward position last year when it fired its longtime executive director, Dan Mollway. Mollway, who had started at the agency as associate director in 1981 and was promoted to the top job in 1986, was dismissed over concerns about his use of sick leave and work habits. But he also had many defenders who questioned his firing.
UPDATED An earlier version of this article incorrectly reported that requests for ethical direction from state employees have dramatically declined. Mollway says the number was always increasing. It also reported that the commission hadn’t issued an advisory opinion since 2006. That’s correct, but Mollway explains that 800 such opinions have been issued and new ones are only necessary when it’s a close call or the issue has never come up before.
Sullivan, the commission’s chair, said the commission remained effective despite the problems with Mollway.
“We always tended to our business, and we had an acting director (Susan Yoza) who did a very good job,” she said. “We were up to speed and we addressed issues as they arose.”
“I believe we are continuing along a path that we have always taken,” she said. “I don’t think we have actually changed directions. I believe that we are enforcing the ethics laws, and we are being very careful not to go outside our jurisdiction.”
Kondo was hired in December 2010 and began work Jan. 11. As executive director, he serves as the administrator of a nine-member staff and is the chief legal counsel.
Kondo (it is pronounced CONE-dough and does not rhyme with “condo”) appears well suited to the job.
He is a former member of the Hawaii Public Utilities Commission, which regulates public utilities, and the former director of the Office of Information Practices, which is responsible for administering Hawaii’s Sunshine Law and public records law.
Kondo, a graduate of the William S. Richardson School of Law who holds an engineering degree from Northwestern University, was a law clerk to former Hawaii Chief Justice Herman
T. F. Lum. He worked as a litigation attorney in private practice and is a past member of the national Council on Governmental Ethics Laws.
Born in Hilo, Kondo grew up abroad because his father worked for the United Nations Educational, Scientific and Cultural Organization.
“It was interesting but not really relevant,” Kondo told Civil Beat, underscoring a big issue with him — namely, that his work on the commission is not about him.
“This is not about me,” said Kondo, who declined a photo request for this article. “I am here doing the work for the commission, but at the direction of the commission.”
Sullivan and Abdul agree, as does a third commissioner, Jackie Kido. But Kido said Kondo has brought something new to the commission.
“I think that without Les — without someone that talented — we certainly couldn’t do what we are doing,” she said. “His background includes being a very active litigation attorney, so he is very well versed in the law. He is extremely intelligent, very centered and very contemplative. He has a strong backbone.”
Kido continued: “It’s been a breath of fresh air. I don’t feel the board would be as active without someone of his caliber.”
Kondo has a strong personality, and a sure sense of what’s right and what’s wrong. For him, ethics questions are a matter of common sense that demonstrate whether an individual adheres to a moral compass.
Unless proven wrong, Kondo is not one to back down from his positions — he has been known to engage in vocal exchanges with some lawmakers. But he also says that neither he nor the commission has an agenda, other than educating officials about — and enforcing when necessary — what he calls the “bright line” of ethics laws.
“Part of the misunderstanding between us and maybe the legislators and other state employees right now is that some people don’t appreciate the fact that we are coming out with some of this guidance,” he said. “We’re telling them that, hey, if we hear about an event, maybe even if we don’t hear about an event and we are giving just some general guidelines — maybe that’s been different. Maybe in the past they haven’t had that type of interaction with this office. But, I feel like that is one of our very important functions — to provide that guidance and to convey to other people outside this office how the commission interprets the statute.”
Officials have the right to challenge the commission. But Kondo says it has not faced a contested case in over two decades — something he hints may be changing soon. (Ethics Commission opinions can be challenged in Circuit Court.)
“If you interpret the statute in a different way than what the commission interprets it, that’s really not that relevant, because the commission’s decision, the commission’s word is the final word vis-à-vis the statute,” he said. “We are trying to make sure people are on the same page with its interpretation.”