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Under a new law, Act 230, the members of 15 powerful state boards, who have filed confidential financial disclosures with the State Ethics Commission, must now file public financial disclosures.

The new law is intended to provide transparency, allowing the public to see if board members have conflicts of interest when carrying out their duties.

The law, however, does not clearly spell out how or when the new public disclosures are to be filed with the commission.

Do the board members’ existing confidential disclosures immediately become public, or are board members allowed to keep their already filed disclosures confidential until a new disclosure is required by the commission next year? These are questions the State Ethics Commission must answer, and soon.

A new piece of public financial disclosure legislation that Gov. Neil Abercrombie allowed to become law without his signature has spurred a rash of resignations on boards and commissions.

Sara Lin/Civil Beat

Here is how I would approach the problem.

First, it should be noted that the new law states that it “shall take effect upon its approval.” The law does not “grandfather in” sitting board members until the time of a new disclosure filing, which could have been done by the Legislature. There is thus clear legislative intent that the law takes effect “upon its approval.” This eliminates the notion that sitting board members may keep their confidential disclosures confidential until a new filing is required after the start of next year.

Board members should be given a chance to resign, if for some reason they were unaware of the law or its implications earlier, and do not wish to have their confidential disclosures made public.

But the issue of privacy for sitting board members is also important. The change in the law from confidential to public disclosures involves important issues of privacy, a state and federal constitutional right. And, sitting board members have been relying upon the confidentiality of their disclosures.

Before making confidential disclosures public, the commission, I believe, must make direct contact with all affected board members to ensure they understand the new law and are thus making choices with “informed consent,” so to speak. Board members should be given a chance to resign, if for some reason they were unaware of the law or its implications earlier, and do not wish to have their confidential disclosures made public.

Also, board members at times may not be aware of changes in the law or may be dealing with serious personal problems, or may have even resigned without any notice to anyone, or are ill, or even may have passed away. At times, the commission is not aware of this information.

When the commission acts in regard to public disclosures after direct contact is made, the commission has taken reasonable steps to avoid any liability or lawsuits, or misunderstandings. I believe the new law, as is typical of new laws, allows for discretion on the part of the commission in terms of implementation, though implementation must adhere to the legislative intent of the law.

Once the commission has made contact with the affected board members, I would say the board members would have to file a public disclosure, or allow their confidential disclosures to become public, within 30 days.

Thirty days is proper because the disclosure law, HRS section 84-17, requires new board and commission members to submit a disclosure within 30 days of appointment. The commission may also grant an additional 15-day extension if warranted.

This time period also allows board members to update their previous filings if their financial interests have changed. Disclosures must be updated if necessary, consonant with the law’s requirement of a public disclosure, which means a full and complete disclosure.

The approach set forth above allows for transparency soon, in keeping with the new law, and avoids any gross inconsistencies if newly appointed board members have to make public disclosures within 30 days, while sitting board members might be inappropriately allowed to wait until next year before filing a public disclosure.