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Subpoenas could be on the way for Honolulu Mayor Kirk Caldwell’s top executives if the administration continues to stonewall the Ethics Commission and its investigations into possible corruption at city hall.
On Wednesday, at the third meeting on what’s become a fast-disintegrating relationship between the commission and the administration, commissioners made it clear that they could soon take legal action to pry information loose in ethics investigations, including cases involving nepotism and political favoritism.
“One of my main concerns is the level of delay we’ve had over and over again,” Ethics Commission Executive Director Chuck Totto told the panel. “I think it is unfair to keep these issues going.”
Totto’s public criticism of the administration started in early November with insinuations that the commission’s budget was being manipulated as a means to exert control over the autonomous agency.
But the threats of subpoenaing cabinet members and city documents appears to up the ante in what is an increasingly contentious relationship between the Caldwell administration and the commission.
Totto was particularly upset Wednesday that Department of Transportation Director Mike Formby had cancelled a planned appearance at the Ethics Commission meeting.
Specifically, Totto wanted to question Formby about how ethics complaints are handled by the transportation department. Currently, the Ethics Commission doesn’t have jurisdiction over Oahu Transit Services — the private nonprofit that gets paid $220 million to operate TheBus.
But Totto said his agency has recently received seven complaints about OTS employees, and he wants to know how those should be handled. Meanwhile, the Honolulu City Council is considering a bill that would bring OTS under the Ethics Commission.
“It’s a black hole, we’re not getting anything back from DTS,” Totto said. “It’s been since June of this year that I’ve been trying to get information.”
Formby had notified the commission Wednesday that he wouldn’t be able to make the meeting because he was going to be at a press conference with Caldwell about this weekend’s Honolulu Marathon.
Formby also provided a string of email correspondence between him and Totto that showed the two had been communicating since at least October, and that Formby had responded to some of Totto’s questions as recently as Nov. 8.
Ethics Commissioner Michael Lilly
This wasn’t enough to satisfy Ethics Commissioner Michael Lilly, a former Hawaii attorney general, who called the timing of Formby’s memo “troubling” because it was dated the same day as the meeting.
Lilly noted the commission has subpoena power. He and other commissioners indicated they might move forward with that kind of action in January if Caldwell’s top aides continue to block investigations.
Lilly floated the idea of writing a letter to the Honolulu City Council saying the commission has been “stonewalled” by the administration and therefore has been delayed in discussing the bill regarding OTS.
But the Ethics Commission’s problems with the administration run much deeper than someone not showing up to a meeting or failing to answer questions about new legislation.
Deep-seated issues remain about access to information, interference in investigations and what now appears to be a general mistrust between the two sides.
Even in the email exchange Formby provided there’s an underlying tension between the DTS director and Totto regarding how the commission should be treated during an investigation.
In a Nov. 6 email, Totto pointedly expressed concerns about how Formby might be interfering with the commission’s work by instituting a “no-communication-without-approval policy” in which employees cannot speak without first going through a supervisor.
“Imagine if someone filed an ethics complaint against you and I needed to communicate with the complainant or witnesses in your department, but had to notify you first,” Totto said. “I hope you’ll see that is impractical, would chill an employee’s right to seek the protections of the ethics laws and would act to insulate you from ethics complaints. I’m sure that is not what you intended.”
Totto goes on to recommend that Formby withdraw the policy so as not to interfere with employees’ rights or the commission’s duties.
Other serious issues were revealed Wednesday as well, all of which could be seen as roadblocks to the Ethics Commission performing timely investigations.
Human Resources Director Carolee Kubo argued in front of the commission that ethics investigators needed to show “probable cause” before she would release certain information.
She said the employees have rights under the collective bargaining agreements with the unions, and that the city needs to protect itself from grievances or litigation that might result from releasing protected personal information.
“I’ve seen many cases that have gone through arbitration as a result of these issues,” Kubo said. “I need to balance the public’s right to know and an employee’s privacy. It’s a fine balance.”
But ethics commissioners scoffed at the idea that investigators would first need to prove probable cause before any information would be released.
Commission chair Charles Gall pointed out that Kubo’s arguments make little sense. It would be difficult for the commission to establish probable cause unless it had been able to gather the necessary information in the first place.
“It just seems to me that that is not a practical standard,” Gall said.
Subpoenas could help, because a subpoena would force the city to release information. And it could also be used as a means to preserve evidence, such as deleted emails, that might otherwise be disposed of.
This was a specific concern for the Ethics Commission, especially considering it has an ongoing investigation in which the administration has refused to provide an employee’s emails even though that individual is believed to have violated rules related to participating in political activity while on the job.
But what’s unclear is how much of the friction between the Ethics Commission and the administration is caused by deliberate roadblocks or simple lack of communication.
The latter appeared to be the case during a tense back-and-forth between Totto and IT Director Mark Wong. Totto had alleged that the IT Department had refused to give up information, but Wong said he only learned about the commission’s request through media reports.
“I am a little resentful that I am reading in the paper that I am not replying to a request that I have not seen,” Wong said.
Totto noted he had been waiting on five requests from Wong’s department, but had recently received some information.
Wong assured Totto that more information was on the way, and that if they worked together he would be able to make sure the requests were processed as quickly and securely as possible.
It was a rare moment of cordiality that hasn’t been seen much during the ongoing tiff between the administration and the commission.
But the larger question involves the mayor: Where does he stand on all of this?
The short answer is he won’t say. Caldwell has been mum on the matter, and again refused to comment on Wednesday.
His spokesman, Jesse Broder Van Dyke, said the mayor really isn’t involved, and described it as a matter between the Ethics Commission and Corporation Counsel.
Read Formby’s letter to the Ethics Commission here:
Read Kubo’s letter to the Ethics Commission here: