HAWAII STATE ETHICS COMMISSION

ADVISORY OPINION NO. 2019-2 February 28, 2019

A state employee requested an Advisory Opinion from the State Ethics Commission (“Commission”) as to whether his state agency (“Agency A”) may create a position to research and secure federal and private sector funding to address an issue of concern to Agency A. The position would be funded by donations from the private sector to a second state agency (“Agency B”). The new employee would be an employee of Agency B but would work under the direction of Agency A. …

This proposal, therefore, involves two different solicitations of the private sector: the first solicitation – ostensibly performed by Agency A employees – would be to raise funds to create the position itself; the second solicitation – performed by the new Director – would seek funding to address the issue of concern to Agency A.

The Ethics Code does not prohibit Agency A from pursuing this project. However, the Commission cautions Agency A personnel, including the new Director, regarding potential ethics issues that may arise when soliciting the private sector for donations. …

In determining whether a solicitation of the private sector is coercive, the Commission examines factors such as (a) the relationship between the soliciting state agency or employee and the solicited private sector individual or organization and (b) the language or form of the solicitation. A solicitation from a state agency that regulates, inspects, or has similar authority over a private sector entity is more likely to be perceived as coercive than one that originates from an agency that does not have that sort of power or control over the private sector organization. Similarly, a solicitation that uses language that creates the impression that a donation is required or expected, or that there would be negative consequences if a donation is not made, is likely to be seen as coercive….

Solicitations that come directly from high-level state officials (such as the head of an agency) and are targeted at specific private entities could be problematic. Commission has previously opined that solicitations that target certain private entities and not others may be perceived as unfairly selecting the targeted entity for a special burden. The state agency, therefore, should take great care if soliciting from private sector entities with which the State does business. Such solicitations could raise concerns if it appears that the State is pressuring the private entity to contribute as the cost of doing business with the State.  …

Alternatively, there may be entities that would like to contribute (as a marketing opportunity and to create good will within the community) and – if not given the opportunity to donate – may believe that they were unfairly omitted from consideration. …

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