State Ethics Commission issues Advisory Opinion regarding whether state board members have conflicts of interests due to their and their spouses’ positions as board members of a non-profit professional association

From Hawaii State Ethics Commission February 21, 2020 (excerpts)

The executive officer of a state board (“Board”) requested an advisory opinion on behalf of the Board from the Hawaiʻi State Ethics Commission (“Commission”). The executive officer asked whether the State Ethics Code, Hawaiʻi Revised Statutes (“HRS”) chapter 84, permits three Board members to vote on the approval of online continuing education courses and administrative rules pertaining to those courses in light of the members’ personal connections to the president (“President”) of a professional association (“Professional Association”). As discussed below, the Commission believes that the Board members may participate in those matters going forward but must not provide any unwarranted benefits to the Professional Association or its President. …

The Board is established by statute and regulates a profession in Hawaiʻi. The Board consists of five members, three of whom must be licensed members of the profession and two of whom must be members of the public. The Board’s duties include administering professional licensing requirements and adopting rules regarding continuing educational requirements to promote professional competence. The Board has promulgated administrative rules requiring licensees to complete a minimum number of continuing education hours biennially. Course sponsors must apply for Board approval of continuing education courses, and courses are evaluated to determine whether they contribute to the professional competence of licensees….

The Professional Association is a private non-profit corporation that represents the profession in Hawaiʻi, and its members must be licensed practitioners. The Professional Association provides its members with updates about the profession and lobbies on bills affecting the profession. The President of the Professional Association is a private practitioner and is not a member of the Board….

The three Board Members who are the subject of this opinion were appointed in early 2019. Board Member 1 was appointed as a public member of the Board and has received professional services from the President of the Professional Association.

Board Member 2 was also appointed as a public member of the Board. Board Member 2 is married to the President of the Professional Association and was employed as the office manager of the President’s private practice until 2017.

Board Member 3 was appointed as one of the three “professional” members of the Board – that is, those members required to have professional licenses by statute. Board Member 3 also has been involved in, and has served as a member of the board of directors of the Professional Association, for approximately ten years. Board Member 3 served on the Professional Association’s Board of Directors until resigning from that board in December 2019. …

B. 2019 Continuing Education Course Approvals

The President of the Professional Association attended a meeting of the Board in March 2019. At that meeting, the President of the Professional Association testified that the Board’s administrative rules did not permit online continuing education classes and that online classes lacked adequate monitoring to ensure attendance. The President of the Professional Association recommended that the Board amend its rules governing continuing education. The Board discussed the matter but did not take any formal action regarding the President of the Professional Association’s recommendation.

The Board next met in July 2019, which was the first Board meeting for Board Member 1, Board Member 2, and Board Member 3. The Board discussed amending the administrative rules pertaining to continuing education courses and voted to create a permitted interaction group (“PIG”) to recommend possible amendments. Board Member 1 seconded the motion to create a PIG and the Board unanimously voted in favor of the motion. The President of the Professional Association – who, again, was not a member of the Board – asked to be appointed to the PIG along with two additional members of the Professional Association, and the Board unanimously approved that request. The Board also discussed a program to review and approve continuing education courses, and the Board members participated in those discussions.

The Board discussed the approval of specific continuing education courses at a meeting in September 2019. The President of the Professional Association attended the meeting and provided testimony to the Board on behalf of the Professional Association. According to the Board’s minutes, Board Member 1, Board Member 2, and the President of the Professional Association expressed concern about potential abuse of online courses and recommended that the Board deny approval of a specific online continuing education course under consideration. Nevertheless, the Board voted to approve that course, with Board Member 1 and Board Member 2 voting “no.” The Board also unanimously approved the continuation of the PIG regarding the administrative rules.

C. Request for Guidance and Subsequent Resignations

In November 2019, the Board contacted the Commission to obtain informal guidance as to whether Board Member 1 and Board Member 2 had conflicts of interests due to their relationships with the President of the Professional Association and the President’s private practice. In December 2019, the Commission’s staff issued informal guidance that Board Members 1 and Board Member 2 should avoid taking any action affecting the President of the Professional Association or the President’s private practice. This analysis was based in part on information provided to the Commission’s staff that both Board members were employees of the President’s private practice

Shortly thereafter, the Board informed the Commission’s staff that Board Member 3 was a director and officer of the Professional Association, and requested guidance as to whether Board Member 3 was required to recuse from Board discussions about continuing education courses because of the Professional Association’s testimony to the Board. The Commission’s staff issued informal guidance that Board Member 3 should recuse from these matters but that the Board was welcome to seek an advisory opinion in light of the complex issues presented by this case.

In December 2019, the Board – through its executive officer -- requested an advisory opinion from the Commission. Shortly thereafter, Board Member 3 resigned as a director and officer of the Professional Association, and the President of the Professional Association resigned as President….

III. Conclusion

The Commission expresses no opinion nor draws any conclusions regarding the Board members’ past conduct. However, for the reasons discussed above, the Commission believes that, going forward, the Conflicts of Interests law does not prohibit the Board members from taking official action affecting the Professional Association. Due to their relationships with the Professional Association and its President, the Commission cautions the Board members that they must not provide unwarranted benefits or preferential treatment to those individuals. The Commission thanks the Board for seeking guidance from the Commission. …

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