An ongoing stalemate between Mayor Kirk Caldwell’s administration and the Honolulu Ethics Commission could have long-standing implications for the ways city officials address government corruption and misconduct.

The two sides have been at odds for the last several months over everything from the administration squeezing the commission’s budget to city officials blocking ethics investigations by withholding information.

The brinksmanship went so far that Ethics Commission Executive Director Chuck Totto floated the idea of issuing subpoenas to Caldwell’s cabinet members.

But on Monday the Ethics Commission held a meeting that aimed to put an end to some of the confrontation.

Much of the discussion seemed to center on how the commission and administration could work together to enforce the city’s ethics rules, such as by improving oversight of bus drivers and other transit workers.

But it was clear by the end of the meeting much of the friction still remains.

Ethics on TheBus

Honolulu Transportation Director Mike Formby attended the meeting to defend his department’s handling of ethics complaints related to Oahu Transit Services, the contractor that operates TheBus.

Totto said the commission has received a number of complaints related to transit services, but has received little assurance that the matters had been resolved. The Ethics Commission does not have oversight over the OTS, although legislation has been introduced to change that.

Formby brought a three-inch thick binder that he said contained the results of his department’s investigation into the sole ethics complaint he was aware of relating to OTS.

It was a way for him to demonstrate that his agency was engaging in “due diligence” to prevent, catch and punish misconduct. He also said he had been working with OTS on its ethics guidelines as well as procedures for investigating complaints.

“From the policy side I think we’re all on the same page,” Formby said. “We don’t condone unethical conduct in any way.”

He also said he would be willing to work with the Ethics Commission to develop the most appropriate rules and regulations to help provide ethics oversight of transit services.

Formby’s message echoed much of what other administration officials have said over the past couple months, and seemed to ease some of the tension with Totto and the Ethics Commission.

It remains to be seen whether it went far enough. Totto has repeatedly criticized the administration for its handling of ethics matters, particularly as it relates to the release of information and providing advice to city workers.

After Monday’s meeting, Totto said these same issues are still cause for concern.

“This is not something we will all hold hands and agree on,” Totto said. “The commission’s concerns have not been (addressed).”

Roadblocks

Many of Totto’s complaints stem from the administration stonewalling him on ethics investigations.

He has said this happened a number of times, as when he looked into alleged wrongdoing related to federal funds given to the nonprofit ORI Anuenue Hale.

But a more recent example that got him worked up involves allegations that a city employee has been using a work computer to participate in political activities, which is a violation of Honolulu’s ethics code.

Commission staff have been trying to get the emails of that employee, but have encountered roadblocks at the Human Resources Department where Director Carolee Kubo has refused to sign off on the release of the information.

Kubo told the commission and its staffers that employees have certain privacy rights that are guaranteed under the collective bargaining agreements for unions, and that the city must protect itself from a possible backlash from those groups.

On Monday, Kubo and city attorneys explained they would need “proper justification” before releasing employee emails. That justification could be as little as the Ethics Commission explaining that it has a pending investigation regarding a particular matter.

Still, Kubo said she wants to set up boundaries concerning how much information her department would release to the commission, something that caused some consternation among ethics officials, who felt that narrowing the scope of an inquiry prevents the possibility of uncovering other forms of misconduct.

“I need to protect the privacy rights of employees,” Kubo said. “I can’t have (the commission) witch-hunting on everything under the sun.”

She said if the commission wanted information related to procurement then she would have the IT department provide commissioners with emails related to procurement. If they wanted emails focused on political activity then they would get messages on that topic.

Totto balked at this idea, however, saying that it presents too many problems when the administration “sifts” through the information.

Who’s Giving Advice?

Ethics commissioners have been particularly worried about the Caldwell administration’s argument that city attorneys can be consulted by municipal employees for ethics advice.

Totto has said this sets up a confusing and potentially deleterious scenario for city workers. Not only could they be given poor advice, but it may be conflicting, which sets up an opportunity for city officials to essentially “shop around” for the best answer.

On top of this, anything the Corporation Counsel attorneys tell city employees is protected by attorney-client privileged, meaning it’s confidential.

This presents problems, particularly when conflicting advice has been given. It also sets up the potential for the administration to mask any wrongdoing that might have occurred even if someone has been disciplined.

The Ethics Commission, on the other hand, posts its disciplinary actions and opinions on its website along with an explanation of its ruling.

Corporation Counsel Donna Leong attempted to downplay the commission’s concerns Monday, saying the administration and her department have a common interest in enforcing ethics rules. She added that her department was not trying to subvert the commission’s control, but rather to help provide city employees with ethical advice.

“The administration and I … fully support the mission of the commission to ensure that city officers and employees fully comply with the city standards of conduct and do their job ethically because corruption has no place in Honolulu,” Leong said.

Leong admitted that much of the friction with the commission could have been caused by a new administration getting settled in at Honolulu Hale.

She also seemed to extended an olive branch to the commission on behalf of Caldwell, who has largely kept quiet about the tiff between his cabinet and Totto’s agency.

Caldwell has not attended any of the Ethics Commission meetings, although he has sent his managing director, Ember Shinn, along with several other department heads.

“If the mayor were here,” Leong said, “he would affirm that the work of this commission is very important to the people of the City and County of Honolulu.”

Totto, however, remains skeptical.

“It may be that this was all just your classic new administration making some mistakes along the way,” he said.

“The real proof will be in the tasting of the pudding.”

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