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At the heart of government ethics lies the fundamental principle of public trust. In the past couple years, a series of investigations into corruption and bribery made it pretty obvious that we needed stronger laws to ensure ethical behavior in our halls of government to rebuild that trust. 

During the 2023 session, the Legislature responded by passing many of the measures recommended by retired Judge Dan Foley’s . One important measure, however, made very little progress.

 sought to establish a list of rights for citizens when they interact with the Legislature. The proposed rights ranged from very broad to highly specific. For example, the bill would require that anyone attending a public hearing be treated with fairness, equity, dignity, respect and honesty. It also outlined procedures for the legislative process, including that conference chairs can’t kill bills simply by not showing up.

This bill also proposed the creation of an Office of the Public Advocate with the power to investigate, resolve and report violations of these rights. While legislating specific expectations is important, for them to really matter, they need to be enforced fairly and consistently. Having laws on the books is not enough and an Office of the Public Advocate is one way to hold officials accountable for violating any new or existing ethics laws.

But it’s not the only option. We can create a new agency or set up new processes for an existing one. Whichever way we go, the agency’s effectiveness will depend on the rules we create about the appointment, eligibility and authority of its members. Fortunately, 47 states have ethics oversight bodies, each with different practices from which we can learn.

The , which is charged with investigating ethics violations, consists of five members appointed by the governor from a list of nominees provided by the . 

 of the 47 state ethics bodies follow a similar executive appointment procedure. Other states distribute the power across different groups, and Hawaii should consider following suit.

Most states split power across different branches of government. For example, Kansas’ Governmental Ethics Commission members share appointments between the executive branch (four), the legislative branch (four) and the judicial branch (one). The Colorado Independent Ethics Commission similarly divides appointments between the executive branch (one), the legislative branch (two), and the chief justice (one). It also tasks the commission members with selecting a fifth member themselves.

The Vermont State Ethics Commission has a unique system that gives most of the appointment power to civil organizations that select members from within their membership. These organizations include the League of Women Voters, the Society of Certified Public Accountants, the Vermont Bar Association and the Society of Human Resource Management Vermont State Council. The commission’s fifth member is appointed by the chief justice.

“The fact that the majority of our commissioners are appointed by community or professional organizations helps limit the possibility of undue influence on commission operations or decision-making processes,” Christina Sivret, executive director of the Vermont State Ethics Commission, said in an email.

I happen to agree. Regardless of how Hawaii distributes its appointment powers, civic organizations should play a role.

Currently, the Hawaii State Ethics Commission’s members have a diverse set of expertise with a track record of independence. The role of the judicial council, which is appointed by the Supreme Court, helps prevent politicization, but it’s worth considering a more inclusive approach. This is particularly true on a county level where the judicial council has no mitigating role and commissioners are appointed directly by the mayor.

Last session, Sen. Les Ihara  that would require counties to implement a selection process to distance county ethics commissioners from the executives they are responsible for monitoring. At the very least, legislators should put Ihara’s bill on the priority list next session.

But appointment processes are just one part of the puzzle. Eligibility rules for commissioners can also help to eliminate political influence and special interests.

Hawaii law already bars public office holders and nonresidents from serving on the Ethics Commission. It also prohibits members’ active participation in political campaigns. Most states share these rules but have additional requirements. For example, 25 states prohibit public employees from serving, and 31 states prohibit lobbyists. Thirty-four states require party balance on the commission.

Some of these rules are more practical for Hawaii than others, but they all deserve consideration. Prohibiting current or recent lobbyists seems like an easy start. We could also strengthen our existing rules by broadening the political prohibition to include any partisan activity like party membership, recent campaign participation or previous political candidacy. 

Finally, the success of any reform will depend on whether or not the commission has enough authority to enforce it. Most states, including Hawaii, give ethics commissions the authority to issue subpoenas and conduct investigations. Hawaii also gives the commission the ability to recommend discipline and refer cases to other entities, like the Attorney General’s Office, for further action. However, the only enforcement mechanism entirely within the commission’s control is the ability to impose a fine of $1,000 or less for violations. 

According to Robert Harris, executive director and general counsel of the Hawaii State Ethics Commission, the commission will be introducing a bill this year to increase that fine. As Harris points out, the national average is much higher than it is in Hawaii. Some states like Massachusetts have a maximum penalty as high as $10,000 while others like Colorado can fine violators double the amount of the financial equivalent of any benefits obtained by the violation. An increased fine would be an important and necessary tool for enforcement.

Fortunately, 47 states have ethics oversight bodies, each with different practices from which we can learn.

Less vital but also worth considering is whether we should grant the commission enforcement powers beyond financial penalties. In Montana, the Office of the Commissioner of Political Practices has the authority to retain and supervise licensed attorneys to prosecute any criminal or civil action arising from an ethics violation. The Oklahoma Ethics Commission also authorizes county court prosecutions.

However, the ultimate test for any of these reforms is whether these commissions are prosecuting cases. When enforcement falters, the public’s overall trust in government is threatened as people lose faith in the system. In other words, people need to see our laws working how they’re supposed to, which means we need to craft laws that can be implemented effectively. 

When weighing new reforms, Harris offered these words of advice, “Having the authority to enforce an ethics law doesn’t mean much if the entity is subject to extensive meddling.”

Additionally, he said, “The best laws don’t work if there isn’t the capacity to enforce them.” 

On that note, regardless of whether the Legislature takes up any of my suggestions above, any new law they consider should aim to ensure both the independence and the capacity of our state and county commissions, so they have the freedom and tools they need to do their jobs.