The public won’t see the financial disclosure statements filed by most of the current members of the University of Hawaii Board of Regents, Public Utilities Commission, Hawaii Community Development Authority or 12 other powerful state boards until next summer at the earliest.
The Hawaii State Ethics Commission voted unanimously Wednesday to keep the reports confidential for the members who filed before July 8 of this year, the day a new law took effect adding 15 boards to the list of those that must publicly disclose their financial interests.
The much-anticipated decision ended two weeks of speculation over how the law should apply to current board members. But not everyone left happy.
Ethics Executive Director Les Kondo said he supports the five-member commission’s decision, but had interpreted the law to require the release of the disclosure statements for all current members of the affected boards regardless of when they filed them.
Twenty-six members across 10 state boards have quit since the Legislature unanimously passed the bill in April. In their resignation letters, they cited privacy concerns, personal reasons and fears over how people might use the information if it is posted online.
The same financial reports have for years been publicly available for roughly 180 other state employees, including legislators, department heads, the governor and other major boards.
The commission based its decision on the advice of the state Attorney General’s office, which has refused to release its legal opinions on the matter.
Those private discussions continued Wednesday. The commission met for 80 minutes behind closed doors with two state deputy attorneys general before resuming the meeting in public session to announce their decision with little explanation.
Here’s the motion the commission approved, put forward by the new chair, Edward Broglio:
“Pursuant to the legal advice of the Attorney General regarding Act 230, the commission shall make public the financial disclosure statements of members of the affected boards and commissions that were filed on or after July 8, 2014, but the financial disclosure statements filed before July 8, 2014, shall remain confidential.”
Commissioner Ruth Tschumy said it was a matter of fairness. She said people agreed to serve on these state boards with the expectation that their financial disclosure statements would remain confidential.
Broglio said it was also about doing what is legal, but did not elaborate.
Kondo described the scramble to figure out what to do in the days leading up to the commission’s decision.
He had been under the strong impression that Gov. Neil Abercrombie was going to veto the bill, but that all changed June 30 when the governor decided to let it become law without his signature. Good-government groups and Abercrombie’s primary opponent in his bid for re-election this fall, state Sen. David Ige, had publicly criticized him after he announced his intent to veto the bill June 23.
When it became clear the bill was going to become law, Kondo said the discussion shifted to who was going to make the call on whether the financial statements filed by current board members before the law took effect should be made public.
The Ethics Commission felt it was the AG’s kuleana, but the AG said it was the Ethics Commission’s responsibility.
He met with state deputy attorneys general July 1 and they decided to come to the Ethics Commission and let them decide.
But later that night, Kondo decided he was uncomfortable with that position because he didn’t want to wait three weeks for the commission’s next meeting.
“It’s a public record. It should be available anytime they want,” he said.
He also felt the law applied to any current member of an affected board, regardless of when they filed their financial report.
Kondo decided to send a memo July 2 to all the affected board members — roughly 120 serve on the 15 boards — through the heads of their boards letting them know the plan was to publicly release their disclosure statements July 8.
He spent the next several days working closely with the Boards and Commissions Office to make sure the list of current board members was accurate so that when they “pushed the button” July 8 and made the reports public it didn’t include anyone who had resigned or wasn’t on the board.
On July 8, Kondo said his office decided to hold off on releasing the reports for another week so as to make sure the list was accurate.
He said he got a call the next day from a deputy attorney general, calling on behalf of Hawaiian Homes Commission members, expressing concerns about the lack of notice. Apparently the chair of that commission didn’t promptly disseminate Kondo’s July 2 memo.
The deputy attorney general sent a letter to the Ethics Commission on July 11 faulting the retroactive nature of Kondo’s interpretation of the law. At that point, the plan to “push the button” July 15 was put on hold.
Kondo said he and Ethics Associate Director Susan Yoza met with Attorney General David Louie, his first deputy Russell Suzuki and deputy attorneys general Robyn Chun and Charleen Aina for more than an hour to discuss their difference of opinions on how to apply the law.
Ultimately, they couldn’t agree.
“I didn’t believe and I don’t agree with their reasons why they don’t think it’s appropriate,” Kondo told the commissioners before they went into executive session.
The financial disclosure statements of board members who file after the law took effect July 8 will be public, under the commission’s ruling Wednesday, which means some boards will have members whose reports are public while others are kept private.
This transitional period is expected to last until the members file their next annual reports. The deadline is May 31 except for new appointees, who have to file theirs within 30 days of joining the board or commission.
But since 2015 is an odd year, the board members fill out a short-form financial disclosure statement instead of the long form. The short form lets them simply check a box that says there are no changes from the previous year, so it’s possible the public won’t see the financial disclosures of many board members until 2016.
There may be some exceptions though, starting with the Ethics Commission, which is one of the 15 boards affected by the new law.
Tschumy, who filed her disclosure statement before July 8, said she plans to direct staff to go ahead and post hers online now.
She asked her fellow commissioners if they would join her in leading the way. No one seemed opposed to doing so, but no formal action was taken.