ÌìÃÀÊÓƵ

UPDATED 12:45 p.m. 12/28/2010

Two of seven members on the will see their terms expire Dec. 31 and Mayor Peter Carlisle will name their successors.

Carlisle and his peers on the neighbor islands are in a unique position. They may be the only mayors in America with sole discretion to nominate the ethics commission that regulates their performance in office. By the time Carlisle’s first term expires in 2012, he will have handpicked the majority of the commission.¹

And while it’s true that his appointments must be approved by the City Council, no nominee appears to have been rejected in decades.

“It’s a conflict of interest,” said , who represents portions of Palolo, Kaimuki and West Diamond Head. “In my opinion, they should not be involved in the process of selecting the people who will regulate them… No council member that I know of has gone out on a limb saying a nominee should not be approved. I don’t think that’s much of a check at all.”

Ethics commissioners are tasked with ensuring and improving public trust in government officials. The unpaid, nonpartisan body advises city employees regarding ethical issues, trains them to perform their duties in an ethical way and enforces ethics laws by recommending discipline for violations. The power the commission has in enforcing violations, though, is minimal.

The body can give out a caution, or reprimand, and in the most extreme cases, impose civil fines. City Council member Rod Tam was recently with a $2,000 fine for abusing a city privilege that allowed him to be reimbursed for meals. Tam is also being forced to pay back the $11,700 in city funds he inappropriately spent. In November, he guilty to 26 misdemeanor counts, including theft and unsworn falsification charges.

Chair Susan Heitzman and commission member Patricia Lee are both retiring, the ethics commission’s executive director, Charles Totto, told Civil Beat. Heitzman has served two five-year terms, the maximum for an ethics commissioner, and Lee is leaving after her first term, citing other commitments. Both members will remain on the commission until the mayor assigns replacements.

“Under the City Charter, the mayor appoints and the council confirms all board and commission members, including those for the Ethics Commission,” Totto said.

Although council approval might promote the independence of members of ethics panels, Ihara, who has been a public servant in Hawaii for 24 years, said he could not recall a single instance where a council refused a mayor’s nominee.

“All my years in office, I know of no ethics commissioner nominated at the county level who has been rejected by the council,” Ihara told Civil Beat.

The , with five members, has a substantially stricter process for appointments. A Judicial Council, appointed by the Hawaii Supreme Court and including the chief justice, supplies the governor with a list of two names for each open position and the governor then appoints from the list. The method ensures that the state commission is appointed in an independent and impartial way.

Article of the Hawaii State Constitution says, “Ethics commissioners shall be selected in a manner which assures their independence and impartiality.”

Honolulu’s appointment procedure does not demand the same amount of scrutiny required by the state. Or, for that matter, the rest of the country.

But the city ethics appointee process has a defender in former Mayor Mufi Hannemann. He told Civil Beat the reason ethics commissioners aren’t typically rejected by the council is because mayors have made solid picks.

“As mayor, you pick people who are highly ethical,” he said. “That’s why I think they never get rejected, because as mayor, you’re very careful. You know, it’s one thing to get another commission member rejected, but the Ethics Commission? If that person gets rejected? Wow.”

Other Ethics Commissions

Cities around the country have several different methods of appointing ethics commissions. In Civil Beat’s search, we could not find another example besides Honolulu (and Hawaii’s other three counties) where a mayor has the same power over appointments as Carlisle.

JoAnne Speers, the executive director of the , a research and education affiliate of the California State Association of Counties, provided Civil Beat with the table below. It shows how ethics commissioners are appointed in six major cities in California, none of which grant sole appointment responsibility to the mayor.

Several other major cites Civil Beat checked showed similar results.

• New Orleans’ is appointed by the mayor from lists of three nominees each submitted by the president or chancellor of Dillard University, Loyola University, Southern University in New Orleans, Tulane University, University of New Orleans and Xavier University. The mayor also appoints one additional member, all of whom require approval from the city council.
• The requires that one member is an officer or employee of the city, at least one member must be a formal judicial officer and at least one member must have educational or professional experience with ethics. The mayor appoints three of the members with city council approval, and the council appoints the other two.
• consists of five volunteer members: two appointed by the city council, two appointed by the mayor, and one is an employee of the city and is nominated by the city’s Employee Advisory Committee and appointed by the other four commissioners.
• The is a seven-member board with all members appointed by the city council except for the chair, who is appointed by the mayor.
• Atlanta’s is a citizen-appointed board consisting of seven city residents. They are elected by different civic, legal, business and educational groups and serve three-year terms.

Carla Miller, president of , a nonprofit that provides ethics information and resources to all levels of local government, told Civil Beat in an e-mail that ethics boards are adopting new methods of appointment.

“It seems that the emerging way of appointment is community groups select the members: League of Women Voters, Universities, law schools, Chamber of Commerce, etc,” Miller said. She even pointed out that one city appoints members for its ethics board from a random selection of citizens in voter registration lists. (She could not be reached to clarify which city this was.)

“The thinking is that the more you spread the appointments out, the less politicized the Board,” Miller said.

Ethics Legislation

In 2007, the Hawaii Legislature introduced to limit the mayor’s power in appointing ethics commission members and force counties to comply with a state-like appointee system.

The bill said, “The legislature finds that the selection process of the state ethics commissioners should serve as a model for the selection of county ethics commissioners, in the interest of ensuring sufficient independence and impartiality of the commissioners. The purpose of this Act is to provide standards for the selection of county ethics commissioners to ensure their impartiality and independence.”

The bill passed both the House and Senate but former Gov. Linda Lingle vetoed the measure. Lingle cited vagueness and county home rule in her veto.

Ihara, who introduced the bill, told Civil Beat that the Honolulu City Council took an active role in keeping it from becoming law.

“I was working to override the veto,” Ihara said. “And the City Council lobbyists talked to the senators and lobbied them not to override.”

But Totto told Civil Beat that there were several reasons the city questioned whether the bill would improve the quality of ethics commission members.

“First, over the 10 years I’ve been on board, the commission members have been independent and impartial,” Totto said. “Of course, that’s no guarantee that future members would continue to be impartial and independent; that’s true under any selection method.”

Second, “Another selection mechanism may not solve the perceived problem regarding the mayor’s appointment authority. Potential State Ethics Commission members are selected by the Judicial Council. This is an independent agency within the third branch of government, whose members are selected by the Chief Justice of the Hawaii Supreme Court. The city does not (have) an equivalent branch or panel. If it created a new panel, there would still be a question as to the new panel’s independence, because presumably the mayor would select the members of the new panel.”

Totto also said that besides adding another level of bureaucracy to government, the city council’s advice and consent role in the appointment process would have been removed with the bill. “If anything, the fact that the Council is involved would seem to help balance the selection power of the mayor.”

But Ihara says the bill would have just made the appointment process more impartial, and reduced the risk of inappropriate appointments. The senator told Civil Beat he has seen several instances over the years where city officials took advantage of the system.

“In my research, I have found names of people who are in political networks, in political networks that support candidates and so forth and they are part of the political family,” Ihara said. “To me, you should not have someone in your political family or in your political network be a member of the ethics commission because it’s hard for political family members to be impartial in judging or regulating.”

Violations?

As an example of politics rearing its head, Ihara mentioned the of Lex Smith, former chair of the Honolulu Ethics Commission.

Blogger reported in May that Smith served on the commission since 2001, appointed by then-Mayor Jeremy Harris.

According to Lind’s article, Smith involved himself in former Mayor Mufi Hannemann’s campaign while a member of the commission. He provided legal support and even received financial reimbursements for campaign food and entertainment. Lind quoted Smith saying that he chose to resign, “when the situation was reaching a point where I was likely to be in violation.”

Chapter 3 of Honolulu’s says that ethics commission members can vote and contribute to political campaigns but that no member may “support, advocate or aid in, or manage, the election or defeat of any candidate for public office.”

Totto told Civil Beat that Smith made no ethical violations and that the former chair was just covering his bases by resigning.

“There was no improper conduct by Lex,” Totto said. “He resigned in order to become active in a candidate’s political campaign.”

Regardless, ethics violations are at the local level, according to the 2007 National Government Ethics Survey by the Virginia-based , a nonprofit organization that encourages ethical practices by individuals and institutions.

The report sampled government employees at all levels (local, state, federal) who work at least 20 hours a week, with interviews and survey questions taken over the phone.

The report says that “Sixty-three percent of government employees working in local governments observed at least one type of misconduct in the past twelve months. This rate is higher than all other kinds of government and both publicly-traded and privately-held businesses (57 percent and 55 percent respectively).”

Types of misconduct included abusive behavior, putting personal interests ahead of the organization and internet abuse. A table included in the report is below.

Civil Beat asked Totto if he could remember how many times the ethics commission has called out a mayor for a violation in his tenure. He said that generally, the commission does not disclose information about individuals unless the commission finds that ethics laws were violated.

“Having said that, over the 10 years I’ve been at the Commission and without going back through all the files, I’d say we’ve had about six complaints against the mayors that alleged ethical misconduct.”

Did the commission find any violations in the six complaints?

Totto could not say because commission policy is not to disclose violations by public employees unless a formal advisory opinion describing the violation is published, disclosing the identity of the violator. But, he did say that “the fact that a mayor hasn’t been identified means either there was no violation or the violation was relatively minor or technical.”