by Andrew Walden
For twenty-four years Dan Mollway oversaw the Hawaii State Ethics Commission as Executive Director. As the state reeled from one ethics scandal after another, Mollway's Ethics Commission did little except occupy a position to prevent a more aggressive investigator from stepping up. In spite of serving 1986 –2010, the name ‘Mollway’ is nowhere to be found in Broken Trust, Land and Power in Hawaii, nor in Ben Cayetano’s autobiography. Finally Mollway was removed from office for “a sporadic presence in the office, taking off on vacation and sick-leave days in small increments, so that he did not manage the staff effectively.”
After all those sedentary years, Hawaii is finally learning what it takes for Mollway to get exercised and demand accountability.
In a nine-page March 27 letter to the State Ethics Commission, Mollway demands his successor Les Kondo be terminated for allegedly violating, “…the State’s ethics laws regarding the confidentiality of his providing legal advice regarding the State Ethics Code….”
Mollway somehow ascertains that Kondo, “believes he should somehow be immune from any criticism of his work.” This is probably new territory for the Ethics Commission because in 24 years Mollway didn’t do any work worth criticizing.
After 24 years of Mollway’s sublime equanimity in the face of a tsunami of corruption, Mollway’s successor has the temerity to point out in written testimony that SB893 would, “create a law to retroactively excuse one Task Force member’s conscious and knowing violation of the State Ethics Code.”
And that one person is Hawaii’s foremost debt collection attorney, former one-term Republican legislator Marvin Dang.
It gets worse.
In his testimony, Kondo uses the term “Get out of jail free card.”
According to Mollway--who missed that Broken Trust thingy--this is a termination offense because “by using the word ‘jail’, Mr Kondo also gives the erroneous impression that the Commission's laws are criminal statutes, when in fact they are not, but are civil statutes.”
The horror!
If that wasn’t enough, Mollway points out that Kondo dared to send a May 26, 2011 memo to members of the Mortgage Foreclosure Task Force in which Kondo: “gratuitously notes as follows: ‘We note that a number of the members of the Task Force are also registered lobbyists.”
The unmitigated gall! Certainly the peasants are lighting torches and hoisting pitchforks at this very moment.
Mollway is not alone. Ian Lind, writing an August, 2011 column in support of Mollway, harkens back to the days when Ethics Commission reports were long on “nuance” and complains about Kondo’s “style”, writing:
Kondo spelled out his position in a May 26 letter to members of a legislatively-created Mortgage Foreclosure Task Force. “The State Ethics Code prohibits a member of the Task Force from being compensated to represent non-governmental organizations, such as businesses, both for-profit and not for-profit, trade organizations, or other groups, on matters in which the Task Force participated or will participate. For example, a member of the Task Force who is an employee of a company may not receive a salary to lobby on behalf of the company on legislation that was recommended by the Task Force. Similarly, a member of the Task Force may not otherwise be paid to privately lobby on behalf of a company, trade organization, or other group on legislation that was recommended by the Task Force.”
Kondo vociferously defends his interpretation of the law (Section 84-14 HRS).
“When I hear people say they don’t understand what we’re saying, I go back and read all that we’ve written,” Kondo said. “It makes sense to me. Perhaps I’m biased, because I wrote part of it, but I feel like the guidance we’ve given is clear.”
Kondo acknowledged reading the statute “as literally as we can.”
He said the intent of the provision is to prevent anything akin to “influence peddling.”
“I’ve been telling folks that you’re not able to profit from the privilege of serving.”
But other progressives are on Kondo’s side.
Common Cause testifies: “By allowing this SB893 to pass, the Legislature would set a bad precedent and would encourage allowing an individual (i.e., legislators, state employees and board members) to purposefully and intentionally violate the state ethics code, then seek legislative exemption afterward.”
The League of Women Voters agrees “(We) adamantly opposed these 2012 exemptions for task forces because we were gravely concerned about the inherent risk of actual or perceived conflicts of interest that could arise during the normal course of a task force assignment. We also cautioned that while the stated purpose of last year’s law was to exempt those on a task force from the conflict of interest and confidentiality laws, such an exemption may have unintended consequences, such as totally excluding task force members from the state ethics code. Now we are left dumbfounded about why this measure should be retroactive to June 3, 2010, when the 2012 conference committee specifically amended last year’s bill to make the measure effective July 1, 2012.”
Support for the Dang Bill comes from the Hawaii Bankers Association, the Mortgage Bankers Association of Hawaii, and other members of the Mortgage Foreclosure Task Force. Bizarrely, in the midst of his seven pages of testimony, Marvin Dang tries to claim that the idea to exempt him retroactively came from Kondo himself.
What is this fuss all about? Kondo explains in written testimony March 21, 2013 posted on Ethics Commission website:
… it is poor policy and contrary to the public interest and will erode public trust to create a law to retroactively excuse one Task Force member’s conscious and knowing violation of the State Ethics Code….
In May 2011, the Commission advised all of the members of the Task Force that a provision of the State Ethics Code prohibited them from lobbying the legislature, for pay, on behalf of private organizations relating to bills recommended by the Task Force. The Commission understands that all of the members of the Task Force, except one, conformed their conduct to be consistent with the Commission's opinion, i.e., the members who previously, during the 2011 legislative session, were paid to testify on Task Force-recommended bills on behalf of private organizations did not do so during the 2012 legislative session, based on the Commission’s advice.
In February 2012, the Commission reiterated its position to one member of the Task Force after learning that he was testifying on behalf of his private client on a bill or bills reflecting the Task Force's recommendations. That conduct appeared to be contrary to the advice repeatedly provided to him and to the other members of the Mortgage Foreclosure Task Force. The member continued lobbying the legislature during the entire 2012 legislative session on behalf of his client relating to the bills proposing the Task Force's recommendations. His lobbying activities continued notwithstanding the Commission’s clear and continuing advice to him that those actions violated the State Ethics Code.
In 2012, the legislature passed Act 208, apparently in response to the State Ethics Commission’s advice to the members of the Mortgage Foreclosure Task Force. Act 208 amends the State Ethics Code to exempt members of state task forces from certain of the statute’s provisions, including the conflicts of interests provision that was at issue with the Mortgage Foreclosure Task Force. Act 208’s effective date is July 1, 2012.
This bill, in essence, will make Act 208 retroactive, in order to cover the Mortgage Foreclosure Task Force. In effect, the legislature will be “rewarding” a single individual for intentionally ignoring and defying the Commission’s advice.
And for saying that, Mollway wants Kondo fired.
Mollway’s letter is on the April 10 Ethics Commission agenda.
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