COMMISSION ISSUES GUIDANCE LETTER REGARDING SOLICITATION OF SUPPORT FOR NOMINEE

News release from State Ethics Commission, May 28, 2019

The Commission issued a guidance letter to a Deputy Director of a state agency after the Deputy Director asked subordinate employees to support the confirmation of the Department’s Director.  The Commission did not make any findings of wrongdoing, but offered guidance to the Deputy Director to avoid any possible ethics concerns.

PDF: Guidance letter regarding solicitation of support for nominees – 5.24.19

Excerpts From May 24, 2019 Guidance Letter

…The Hawai‘i State Ethics Commission (“Commission”) received a complaint regarding your solicitation of support of the re-confirmation of Nolan Espinda as the Director of the Department of Public Safety (“PSD”). I am writing today to provide guidance to you to avoid any future concerns under the Hawai‘i State Ethics Code, Hawai‘i Revised Statutes (“HRS”) chapter 84.

As we understand the facts, on or around March 30, 2019, you sent text messages to sixteen subordinate employees, asking that they support Director Espinda’s re-confirmation. While you indicated that you sent these messages from a personal phone on your own time, at least some of the messages were sent to PSD-issued phones of subordinate employees. The text messages requested that PSD employees “surround” and “protect” the Director and his supporters at the upcoming confirmation hearing before the Senate Committee on Public Safety, Intergovernmental, and Military Affairs. Additionally, in those messages, you indicated your wish that PSD employees isolate some community activists from the Director so that the Director would not see those activists during the hearing.

Further, on or around April 3, 2019, you sent e-mail messages to fourteen subordinate employees,1 asking that they attend Director Espinda’s confirmation hearing. Specifically, in your April 3 e-mail, you wrote: “I need the names of those coming . . . to the confirmation [h]earing tomorrow. . . . If you are not coming please tell me.” You sent these e-mail messages from your PSD e-mail account to other employees’ PSD accounts.

You believed you were asking (rather than directing) your subordinates for support; indeed, several recipients of these text and e-mail messages did not interpret your messages as directives and did not feel coerced by your communications. On the other hand, several recipients of these text and e-mail messages interpreted them as directives from a supervisor and, as a result, felt pressure to comply.

…

The Commission has not made any findings on this matter and does not conclude that any violations of the Ethics Code occurred. However, your conduct raised serious ethics questions. Your actions fall closer to the prohibited end of the spectrum outlined above, as several factors increased the likelihood that your subordinates would feel coerced.

Specifically:

 - you directed the solicitations to subordinate employees on their work phones and/or work e-mail addresses;

- your communications were clearly intended to garner support for the Director at his confirmation hearing, whereas there was no indication that employees could also freely choose not to participate;

- you directed subordinate employees to inform you whether they would or would not attend, suggesting that responses would be monitored (i.e., that a failure to respond would be noticed and, impliedly, viewed negatively);

- your own employment may have been in jeopardy if the Director had not been reconfirmed;

- you named several community activists – opponents of the Director’s re-confirmation

– and asked for your subordinates’ assistance in isolating them from the Director; and

- several of your subordinate employees reported feeling coerced or pressured to participate….

read … Full Report

Coverage:

CB: State Makes No Conclusion On Whether DPS Deputy Director Violated Ethics Code 

HNN: State Ethics Commission: DPS deputy director walked a fine line in rallying employees