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It should go without saying that there’s a conflict of interest if you can apply for a job and then have a direct say in whether you get the position.
But that’s apparently okay in certain parts of Hawaii government.
Or it was until Wednesday when the Hawaii State Ethics Commission overturned two opinions in favor of a new one requiring the members of any state board or commission to resign before applying for a job that they are in charge of filling.
It’s a timely decision as the University of Hawaii Board of Regents looks to hire someone to replace President M.R.C. Greenwood, who is retiring in September. The commission used UH as an example throughout the morning debate on the issue.
It’s unclear if any regents want Greenwood’s job, but if they are even thinking about applying. they should pay attention to the commission’s latest decision. So should any other board members who have the power to hire or fire their respective department heads.
The commission’s decision was about avoiding the inherent conflict of interest in a board member who helps to shape the qualifications for a job and then votes on his or her own application. But it was also about changing poor public perception of how government picks its non-elected leaders.
As Commissioner Leiolani Abdul said, there’s a perception that these jobs are “fixed” from the get-go with politicians pulling strings to put whoever they want in whatever position they need them in.
Aside from asking board members to resign before they apply for the job, the commission wants them to go a step farther and to recuse themselves from any board meetings about the potential vacancy from the moment they consider applying.
Commissioners threw parliamentary rules out the window as they debated the issue. At one point there were two motions on the floor, neither had a second, and discussion was happening on both.
The muddled mess of a motion eventually passed 3-1. The commission’s staff plans to clean up the language and issue a formal statement at a later date.
Commissioner Edward Broglio said he voted against the motion because he wanted the board members to resign as soon as they consider applying for the job, and not to just temporarily step down during hiring discussions.
Both positions could be enforcement nightmares. The commission would have to rely on board members’ integrity to heed the ethics advice or else it would have to gather witness testimony that says that a board member was interested in the job long ago, but didn’t recuse themselves.
Ethics Executive Director Les Kondo said his interpretation of the conflict-of-interest provision in the law doesn’t require board members to resign before applying for a position that the board is in charge of filling. He said it even seems to allow them to vote on their own application for the job.
However, Kondo said his take on the law’s Fair Treatment provision, aimed at stopping people from abusing their position, does forbid this type of activity. He said it’s inherently unfair when a board member wants to apply for a job that he or she oversees.
Kondo said that the simplest thing would be for the commission to just say a board member needs to resign right before they actually file the application. The application is an objective measure of someone’s interest in a job. He said it’s too hard to prove when a person just starts thinking about applying.
But Commission Chair Maria Sullivan said it’s also imperative that the prospective applicant not participate in any related board discussions about the job, so she suggested the recusal requirement for board members who are contemplating applying but aren’t quite sure that they will.
The commission’s new opinion is a departure from the previous two. Kondo said the prior opinions may not go so far as to say it’s okay for board members to apply for a job without having to give up their seat first, but they don’t outright ban it either.
The opinion will be Sullivan’s last as a commissioner; her term ends June 30. She’s been on the commission for the past eight years, serving as chair for the past four years.
The five-member commission has struggled to fill vacancies. After filling one empty seat in February, it is still short one member. Sullivan’s departure will create a second vacancy.
However, Kondo said that the judicial council, which recommends people for the governor to appoint to the commission, meets Thursday and two names are expected to be sent to Gov. Neil Abercrombie for his consideration. Kondo said he expects the commission to be welcoming two new members by its next meeting in July.