A memorandum this week from city Corporation Counsel Donna Leong telling department heads that her office will advise city employees about ethical issues has drawn the ire of Ethics Commission Executive Director Chuck Totto.
Totto told members of the seven-member commission on Wednesday that Leong’s position could confuse employees and the public about where they should turn for advice on ethical issues, noting that he has already received calls from perplexed workers about the Dec. 2 memo.
Totto said he intends to send his own memo to department heads, telling them that the commission is the only agency that can determine if ethics laws have been violated.
"Very frankly, I think this (Leong memo) is misguided at best, and undermines the commission’s authority, and will hurt the ethics program in the city in its worse form," Totto said.
Neither Leong nor her top deputies were at the meeting to respond to Totto’s concerns. Leong had asked that the commission defer discussion on the matter until next month’s meeting so she could be present.
Totto said Leong’s memo sets up the possibility of a city employee seeking ethical advice from both the commission and city attorneys, obtaining two distinct legal opinions.
"The whole purpose of setting up an ethics commission was to give independent advice, independent advice based on the public’s interest, the public’s trust," Totto said. All members of the Department of Corporation Counsel, including Leong, are political appointees, inherently making it difficult for some people to trust their opinions to be independent, he said.
What’s more, anyone given advice by Leong’s office could choose to keep that advice hidden under the guise of attorney-client privilege, he said.
"The attorney’s primary interest will be to make sure that they help the interest of the individual as opposed to the public or the department they work for."
Leong’s staff attorneys also do not have the experience dealing with ethical matters that he and Associate Legal Counsel Laurie A. Wong have had, Totto said.
He added that he finds it contradictory for the administration to be preaching budget restraint while essentially allowing Leong’s attorneys to provide services duplicative of his office.
Under former Mayor Jeremy Harris, the same process was tried and failed, Totto said. Some city employees sought advice from both and followed the opinion that best suited their wishes, regardless of how it affected the city, he said.
Totto said his memo will tell employees that while they are free to seek legal advice from Leong’s attorneys, "we would not recommend it … because ultimately the Ethics Commission is the only agency that can determine whether" ethics laws have been violated.
"Corporation Counsel cannot do that. It cannot enforce the law," Totto said.
Leong could not be reached for comment Wednesday. But city spokesman Jesse Broder Van Dyke said Leong has not suggested that her office will now issue ethics opinions. She is simply explaining to city employees that corporation counsel attorneys "are the counsel that advises city employees on how to avoid running afoul of ethics rules while the Ethics Commission is the enforcement agency," he said.
Totto has been warring with several appointees of Mayor Kirk Caldwell in recent months, and with Leong in particular.
Leong rattled the cage several months ago when she refused to approve several budget increases Totto proposed. The commission is attached to Leong’s department "for administrative purposes only," according to the City Charter, but Leong and Totto have different opinions of what that means.
Totto has also accused other city appointees of failing to be cooperative with commission staff.
Transportation Services Director Michael Formby, Human Services Director Carolee Kubo and Chief Information Officer Mark Wong have all either denied or ignored requests for information, Totto told commission members.
Formby, like Leong, had asked the commission for the opportunity at its January meeting to explain his reasons for withholding certain information.
Totto, however, said Formby has not given satisfactory answers over several months to his staff’s queries on City Council Bill 32, which seeks to apply the city’s ethical standards on those hired by the contractor of transit services. The city holds a contract with Oahu Transit Services to provide bus and paratransit services to the island’s commuters.
Totto said that any complaints the commission receives about possible ethics violations by TheBus drivers or other OTS employees are forwarded to Formby’s office.
Kubo has apparently declined to release certain emails of city employees requested by Totto’s staff.
Kubo told commission members Wednesday that requests for access to computer files should be accompanied with factual information showing "probable cause" of wrongdoing on the part of an employee and an itemized list of either the specific documents being sought or the specific subject matter.
Totto said those parameters were too broad, noting that often the commission staff is trying to determine itself whether there is probable cause to proceed.
