A commendable new law that requires more transparency from members of 15 powerful state boards and commissions has been weakened, at least temporarily, by the state Ethics Commission and the Attorney General’s Office.
Act 230 requires that the public have access to financial disclosures filed by board and commission members — a requirement long in place for many other public officials — in order to guard against hidden conflicts of interest.
Prior to the new law, those disclosures were made only to the Ethics Commission, which held them in confidence and vetted them for conflicts as best it could.
Unfortunately, the commission, following the advice of the attorney general, has refused to apply the law retroactively to sitting members who filed disclosure statements prior to July 8, the effective date of Act 230. That means of the approximately 140 board members affected by the new law, only 22 have their disclosures posted online.
Full disclosure by all affected board members might not occur until mid-2016, two years after the law was passed by a unanimous Legislature.
It’s difficult to understand the rationale for this delay. No provision in Act 230 requires it, and the intent of the Legislature is clear: "Due to limited resources," the bill reads, "the state ethics commission does not have the ability to search these records for potential conflicts of interest. The legislature finds that the public is in the best position to identify conflicts of interest."
Perhaps the answer lies in the attorney general’s argument; but, ironically, the Ethics Commission refused requests to make it public, citing attorney-client privilege.
The public’s interest in fuller disclosure is beyond dispute. Some of the most critical issues facing the public today fall under the purview of boards covered by Act 230, including the Hawaii Community Development Authority, the Board of Land and Natural Resources, the Land Use Commission, the Hawaii Public Housing Authority board, the Public Utilities Commission and the Hawaiian Homes Commission, to name a few. The 15 boards cover a broad range of disciplines requiring specialized knowledge; it would be impossible to give the Ethics Commission enough resources to cover every potential conflict.
Gov. Neil Abercrombie, who opposed the measure but allowed it to become law without his signature, argued in his message to the Legislature that it would be "unfair" to subject current board members to "the public disclosure of their private business and financial information" after the fact. Some members may feel that way. Some have, in fact, resigned rather than reveal this information.
However, as Abercrombie also noted, these volunteers act "in the service of the public interest." Certainly, these volunteers deserve credit and support for their willingness to serve. Nonetheless, just like elected officials and agency heads, members of these boards can exercise outsized influence over public policy and government decisions. The public has an overriding right to know whether a board member’s actions may be influenced by his or her private interests.
Likewise, full disclosure has a positive effect: It enhances confidence that board members are committed to acting on the public’s behalf, and deflates the belief that government is controlled in secret by well-connected insiders.
To its credit, the Ethics Commission will ask board members to voluntarily allow the disclosure of their financial reports. The members should do so, not only in the public interest, but in their own.
