After suspending Executive Director Chuck Totto for, among other things, allegedly fostering a stressful work environment, the Honolulu Ethics Commission now wants its attorneys and investigators to complete daily work time sheets detailing their tasks in six-minute increments.
That’s according to a heavily redacted memo issued by Commission Chairwoman Victoria Marks to Totto on Feb. 29, informing him of his 30-day unpaid suspension, and what would be required of him upon his return.
Totto returned to work Monday.
The memo, obtained by the Honolulu Star-Advertiser through a public records request, says Totto’s actions tied to a high-profile series of allegations against City Council members may have exposed the commission to liability for a violation of the Hawaii Whistleblower Protection Act.
Specifically, it says, Totto pressed a staff person in the commission office to move forward with litigating cases, even though the staffer disagreed that there was enough information to proceed. The commission ultimately chose to dismiss the highly controversial cases against Council members Ikaika Anderson and Ann Kobayashi, as well as former members Todd Apo and Donovan Dela Cruz.
Marks’ memo to Totto also said that the commission may also have been exposed to a Hawaii Whistleblower Protection Act claim by asking a staffer or staffers to transcribe a recording of a closed-door commission meeting involving the investigation against him.
In March, Marks confirmed that Totto was on leave following an investigation based on “an internal complaint regarding the management of the commission’s staff and personnel.” But she declined to provide any details.
Other commissioners and Totto also would not comment on his absence through March.
Also released last week by the commission was an equally heavily redacted report dated Jan. 18 given to the commission by attorney Anna Elento-Sneed, independently hired by the commission, detailing her investigation into the complaint against Totto.
Totto referred questions by the Star-Advertiser regarding the documents and his job status to his attorney, former Mayor Peter Carlisle.
Totto did not seek the transcript of the executive session meeting from staffers, Carlisle said in a written response to the Star-Advertiser’s questions. As for whether he pressed
a staffer to pursue investigations against Council
members, Carlisle declined to answer and said the matter involves “attorney-client privileged communications.”
Marks’ letter to Totto said commissioners also agreed to require all attorneys and investigators in the five-person office to “complete daily timesheets that detail by tenth of an hour increments legal and administrative tasks performed during the day.” Those time sheets are to be turned in to the commission chairwoman via email by the close of business on the last day of each month, the letter said.
The commission also wants Totto to provide commission members, by Friday, with an office flow chart on how incoming cases are to be handled. Further, “commissioners expect that all open cases and files shall be organized and updated on a timely and consistent basis.”
In her investigative report, Elento-Sneed concluded “it appears that Totto manages the office primarily through verbal instructions.” Further, regardless of whether it was through any fault of Totto, “the staff perceived the workload as ‘out of control’ and they are all stressed,” she wrote.
Additionally, Elento-Sneed said, Totto has made his views and concerns about individual commission members, the Department of Corporation Counsel and the Caldwell administration known to the office staff. “This fact, is more likely than not, the cause of staff anxiety about the future of the office and the outcome of this investigation.”
Carlisle disputed Elento-Sneed’s conclusion that Totto’s actions were the cause of stress in the office. “The commission was staffed with professionals who did a great job with meager resources,” he said. “There is stress. It is caused by having four times more complaints to investigate than other similar administrative agencies, not getting the resources to handle this workload and other factors.”
Totto has been “truthful and candid with his staff about the problems that face them,” and his comments are not the cause of stress, Carlisle said.
The commission’s “wide-ranging investigation into several confusing topics in a small embattled office where the commission won’t tell staff what the purpose of the investigation is is bound to raise the anxiety level of the staff,” he said.
The redacted documents were released Monday, without his or Totto’s knowledge, at the same time they met with Marks to discuss “a resolution,” Carlisle said.
“We made our position clear that the investigation report could not be relied on by the commission because it was incomplete and inaccurate in important ways,” Carlisle said. The name of the commission employee who filed the complaint against Totto has been redacted from all documents released by the panel. But the allegation by the complainant that Totto pressed for litigation against Council members suggests a person with professional legal skills.
Laurie Wong-Nowinski, the commission’s associate legal counsel and Totto’s second in command through 2015, was the only attorney on staff besides Totto.
She resigned voluntarily effectively April 1, the last working day before Totto’s return from suspension. Efforts to contact her for comment on this story were unsuccessful.
Totto’s hiring of Carlisle as his private attorney, by itself, represents an interesting twist in the tug-of-war between the embattled veteran executive director and the detractors who think he has wielded too much authority over the years.
Carlisle was Honolulu mayor from January 2011 through January 2013, preceding current incumbent Kirk Caldwell, whose administration has butted heads with Totto on several fronts.
Two of three longest serving commission members on the seven-member board were appointed by Carlisle, and the last three were appointed by Caldwell. The sixth member was appointed by former Mayor Mufi Hannemann. The seven-member commission has one vacancy.
It was after Caldwell became mayor that Totto began having a series of disagreements with the administration. Most of those disagreements have been with Corporation Counsel Donna Leong, whose agency the Ethics Commission falls under for administrative purposes.
Totto questioned Leong’s authority to assert control over his budget and personnel actions.
Last June, the commission voted 5-3 to implement a strict media policy that severely curtailed what Totto, other commission staff and even commissioners themselves could say to reporters. Totto was required to consult with at least the chairman of the commission before speaking to media.
Following an outcry by media, good-government advocates and the public, who described the policy as a muzzle on Totto, the commission voted 4-3 to rescind it and then voted 7-0 to approve a less stringent set of procedures.
Critics pointed out that the stricter policy was adopted a month after Totto was chastised by Leong for comments he made on cases involving former Council members Romy Cachola and Nestor Garcia. Totto told the Star-Advertiser and other media that his staff raised questions about the validity of votes cast by the two on the city’s $6.57 billion rail project and other major land use decision after the commission staff found that they improperly accepted gifts from lobbyists and other parties that would benefit from those approvals and failed to report the gifts.
Leong said it was not up to Totto to determine that those votes were invalid, and she noted that the commission made no such pronouncements. (Without admitting wrongdoing, Cachola agreed to pay $50,000, and Garcia $8,100.)
The investigations into Anderson, Apo, Dela Cruz and Kobayashi, the cases that Totto allegedly pushed his subordinates to pursue before the commission dropped them, stemmed from the same questionable series of gifts.
Later, Leong submitted testimony supporting the stricter media policy and cited Totto’s comments to the media.
Totto’s critics say he has long gone unchecked while conducting investigations subjectively, and that they welcome the scrutiny now being placed on him.
His supporters say the director should have broad authority to conduct investigations without fear of political influence.
Totto was first hired by the Department of Corporation Counsel in 1998 to review workload and management issues at the Ethics Commission. Among his findings was that the then-executive director and legal counsel was misusing city resources and was not providing either ethics training for city employees nor investigating complaints brought to the commission.
In 2000, the commission selected Totto to be its director from a field of six finalists, and he began crafting an ethics training program for city employees. A mandatory ethics training program for all 10,000 city employees began in 2014.
During Totto’s 16 years as commission director, the commission has imposed fines and made rulings based on the ethical breaches of mayors, Council members, department heads and other city employees.
Totto first made headlines as state consumer advocate from 1988 to 1998, representing the interests of Hawaii residents before the Public Utilities Commission.