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Republican reps ask Souki to stand down on ethics commission complaint

State reps. Ward and McDermott say the speaker has overstepped his authority, praise commission's executive director, Les Kondo, for his firm enforcement of the state ethics code.

News Report
Will Caron

State Representatives Gene Ward and Bob McDermott have sent a letter to Speaker Joe Souki in response to his letter to the State Ethics Commission, sent on April 27, 2015, complaining about the way the commission’s executive director, Les Kondo, and his staff, have been executing the commission’s duties.

The republican representatives’ letter supports the enforcement efforts of the commission staff and points out that Representative Souki, as Speaker of the House, has over-stepped his authority by requesting that the commission throw aside its last five years of rulings. Representatives Ward and McDermott conclude their letter by requesting that Speaker Souki disavow and withdraw his letter to the commission in the same spirit and manner he requested the commission to disavow their ethics enforcement rulings since 2010.

Their full letter can be read below.

According to Ian Lind’s blog, there was speculation in May that Kondo might be let go, the result of “rumored turmoil within the Ethics Commission.” The commission had been reviewing Kondo’s performance since taking over as executive director in 2011 and, earlier this month, decided he should keep his job.

Kondo has been an emphatic, some would say aggressive, enforcer of the State Ethics Code over the past four years, issuing a series of directives and recommendations for lawmakers and state employees to follow. These recommendations, which have always been based firmly on language taken directly out of the code, have ruffled feathers before. But the commission’s crackdown on gift donations and charitable fundraising at the Legislature appear to be what prompted Souki’s letter to the commission’s chair, Edward Broglio, in which he complains about the “dismaying pattern” he’s seen of the commission staff “trying to rewrite the Ethics Code” to conform to their own notions of ethical conduct.

Civil Beat’s Nathan Eagle reports that Souki is also upset about the crackdown on “bargaining unit candidates communicating with their fellow union members through the use of the employees’ workplace mailboxes, teachers being compensated for chaperoning students on educational trips to distant destinations, and receipt of gifts, meals, and charitable fundraiser tickets that total, in one year, $200 or less from a single source.”

“If such common and longstanding practices are troubling to the Commission or its staff, the proper approach is to come to the Legislature with proposed legislation to address those concerns,” Souki wrote in his letter. “Instead, I continue to see unilateral imposition of restrictions, often based neither on historical practices nor prior Commission opinions, but justified on the basis that the Ethics Code is to be liberally construed.”

Of course, as Lind reports in his Civil Beat column, the language in the ethics code upon which Kondo’s decisions were based was language drafted by the Legislature, not the commission. In effect, Souki is complaining about rules that his own political body came up with years ago, but which have never been dutifully enforced until Kondo became director of the commission.

The republican representatives’ letter adds to the list of supporters who have spoken out in favor of the executive director since Souki’s letter was sent in April. That list includes Chuck Totto, executive director of the Honolulu Ethics Commission, Kristin E. Izumi-Nitao, executive director of the Campaign Spending Commission, Bruce Coppa, former chief of staff for Democratic Gov. Neil Abercrombie, former Republican Lt. Governor James “Duke” Aiona, Catherine Awakuni Colón, director of the Department of Commerce and Consumer Affairs, and government transparency advocacy organizations such as Common Cause and the League of Women Voters.

June 15, 2015

Representative Joseph M. Souki,
Speaker of the House
Hawaii State Capitol
415 South Beretania St
Honolulu, HI


Dear Speaker Souki:

This letter is in response to your April 27, 2015 letter to the Ethics Commission Chairman, Mr. Edward L. Broglio, in which you appear to chastise the Commission and its new Executive Director, Les Kondo, for too aggressively implementing the Ethics Law in its recent rulings and regulations.

When you signed your complaint as Speaker of the House, it gave the impression that you spoke for the entire House of Representatives.  In this matter, you do not, and we believe that such a letter should not have been written by you, but perhaps by a lesser member of your leadership team who would not be speaking for the entire House and painting us all with the same broad brush strokes of anger with the Ethics Commission.

While we support the option of teachers and parents to serve as chaperones for student field trips and obtain free travel tickets, (which a DOE policy statement to the Ethics Commission could easily resolve) we are not in support of your complaints to the Ethics Commission in the manner and context in which you have described them.

In particular we see the role of the Ethics Commission as one of aggressive enforcement to uphold the law as described in the Standards of Conduct (“Conduct Code”) that was passed by the State Legislature in 1967 and the State Ethics Commission that was created by the Constitutional Convention of 1978.

Recently increased enforcement by the Commission has made the ethics code come to life and reach beyond the mere platitudes it was in the past when enforcement of the code was a rare exception. The ethics code has helped preserve what public confidence remains in government and elected officials. Without strict enforcement, the Code has no meaning or merit and merely creates cynicism on the part of the public and hypocrites on the part of public servants. The way we handle “conflicts of interest” on the Floor of the House is a good example of this where the appearance of a conflict is obvious, yet your consistent rulings of “no conflict” are based on a technicality in the law. As legislators, a proactive Ethics Commission should be welcomed and respected by all of us, however inconvenient for some in the legislature that may be.

Criticizing the Commission for carrying out its duty is in essence, criticizing the Legislature for failing to properly write the law as it was intended.  The Commission is thus doing the job the Legislature has directed it to do; that is “to liberally construe [the Ethics Code] to promote high standards of ethical conduct in state government” and to “render advisory opinions” to determine whether “a particular case constitutes or will constitute a violation of the code of ethics.”

Furthermore, “high standards of ethical conduct” should not be interpreted to mean what was considered appropriate fifty years ago, but should be interpreted and applied within today’s context, which the Commission is doing.  As a society, we must grow, change, adapt, and progress or face living in an antiquated island state.  To do otherwise is a disservice to our residents and our legacy of public service. Some will still remember when it was considered “ethical” for legislators to fly first class on taxpayer funds up until the mid-1990’s.

It is also notable that our own Legislature time and again chooses to exempt itself from the higher ethical standards that we require of other public servants, thus missing opportunities for us to lead by example. Such is the case with your present letter that will further serve to thwart public confidence in elected officials.  In view of the recent scandal with Honolulu City Council Members regarding perks and conflicts of interest and their votes on the rail project, all elected officials are again a suspect class in the public’s eye.  National media attention attracted by your letter has also been cause for embarrassment of policy-makers in Hawaii.

Lastly, it is one thing to complain that Commissioners have over-stepped their authority, but it is entirely another thing for you to formally ask the Commission to disavow its rulings from 2010 to the present. This flamboyant request clearly indicates that you are overstepping your authority as a Representative and especially as Speaker of the House of Representatives.

For the above reasons, we respectfully disagree with your letter and stance on the Ethics Commission and its Executive Director’s interpretation of the Code and applaud the Commission and its staff for vigilantly upholding the Standards of Ethical Conduct in our state.  We also believe there is still time to raise the bar of ethics in government, and we suggest and humbly request that this start with your disavowing and withdrawal of your letter of April 27, 2015 to the Ethics Commission.

With Sincerely Aloha,

Rep. Gene Ward
Rep. Bob McDermott