(PNN) COUNTY PUBLIC FINANCIAL DISCLOSURES TO BE PUBLICLY DISCLOSED

COUNTY PUBLIC FINANCIAL DISCLOSURES TO BE PUBLICLY DISCLOSED

(PNN)-- Public disclosure of financial information required by state law of certain county officials will now be subject to public review according to a letter to all board and commission members from Executive Assistant and Administrator of the Office of Boards and Commissions, John Isobe.

The Hawai`i State Constitution’s "Code of Ethics” Article XVI states that

financial disclosure provisions shall require all elected officers, all candidates for elective office and such appointed officers and employees as provided by law to make public financial disclosures.

That has apparently never been the case on Kaua`i where the Board of Ethics (BOE) has for decades routinely received the pubic disclosures in executive session where they have redacted whatever they consider to be sensitive and/or personal and financial information as defined in the Universal Information Practices Act’s (UIPA) section 92F-14(6).

As a matter of fact, the very financial information meant to be reviewed for violations of conflict of interest provisions by the board so they can stop the conflict from occurring appear to be the ones that have been hidden from the public so as not to embarrass those required to file.

According to the County Charter, Article XX, the “mayor, councilpersons, all department heads and deputies, members of boards and commissions and the purchasing agent” are specifically required to publicly make public financial disclosures. All others may file a confidential disclosure.

According to Isobe’s letter

At its meeting on June 4, 2009, the Board of Ethics received a ruling from the Count (sic) Attorney's Office that all Disclosure Statements required to be filed with the Board are public record and must be released if requested by a member of the public.

When releasing this information, we have been instructed to only remove your personal information such as mailing address and contact phone number. For this reason, please be advised that any financial information will NOT be protected as defined under Section 92F-14(6), Hawaii Revised Statutes. (emphasis not added).

The warning is a apparently stunning admission that previously they were not “released if requested by a member of the public” and “financial information (was) protected”.

Two witnesses independently offered that the color went out of Isobe’s shocked-expression face when the board revealed the change of opinion in open session

According to the state constitution’s Code of Ethics:

financial disclosure provisions shall require all elected officers, all candidates for elective office and such appointed officers and employees as provided by law to make public financial disclosures... All financial disclosure statements shall include, but not be limited to, sources and amounts of income, business ownership, officer and director positions, ownership of real property, debts, creditor interests in insolvent businesses and the names of persons represented before government agencies.

The practice of not disclosing public disclosures is rooted in the county ordinance and BOE rules, both also called the Code of Ethics, which conflict with the more authoritative county charter and state constitution.

Currently the administrative rules of the BOE say

3.1 WHO TO FILE

All elected and appointed officers and employees, who are elected or appointed by officers elected pursuant to law or by County agencies and who have discretionary, executive or policy making powers and responsibilities shall be required to file the disclosure pursuant to Article XX the Code of Ethics

3.2 CONFIDENTIAL INFORMATION

Disclosures filed with the Board are confidential and the Board shall not release the contents thereof except as required by law except as provided under HRS 92F-14 (6).

But a new proposed change, based in part on what the county attorney has apparently told the BOE in a June 4 executive session meeting would reverse that 180 degrees and, if passed, the rules would read

RULE 3: DISCLOSURE REQUIREMENTS

3.1 WHO MUST FILE

The mayor, councilpersons, all department heads and deputies, members of boards and commissions and the purchasing agent (3/12/09) shall be required to file the disclosure pursuant to the Code of Ethics

3.2 PUBLIC INFORMATION

Disclosures filed with the Board are public record.

The matter was brought to the attention of the board beginning in March through the efforts of a handful of public watchdogs including Horace Stoessel, Glenn Mickens, Ed Coll, Walter Lewis and, especially Rob Abrew who persisted in researching and presenting the documentation that led to the new policy after BOE member Rolf Briber insisted the board pay attention to the pubic testimony.

Abrew and the others questioned why the disclosure forms were being reviewed in executive session in the first place rather than going having them go straight to public purview.

At first members of the board listed an evolving series of seemingly innocuous reasons for the secrecy, none of which indicated any changes to the substantive financial disclosures were made by the board.

But at the April 4 BOE meeting Bieber brought the matter up and the minutes indicate that what went on in executive sessions on financial disclosures was anything but innocuous.

The minutes say:

Chair (Leila) Fuller explained that the Disclosures are reviewed in Executive Session for the purpose of checking for potential conflict of interest but in those Disclosures are personal financial information that may not want to by mistake open the door for something. After they are approved in Executive Session they become a public document so the public has access to those documents once they are approved but the confidential and private information that should not be public knowledge is redacted when a member of the public requests a copy of the disclosure,

Mr. (Paul) Weil asked if they were not public documents from the beginning, the public has access to them even before we have approved or accepted them. Chair Fuller said they have no reason to be a public document before they are accepted. Mr. Weil asked to be directed to the Code that says they are not public documents until the Board has accepted them. Attorney Clark referenced HRS 92-F 14. Staff noted it was a public document except where provided under HRS 92-F 14 (6) which lists items that would be redacted before anyone looks at them.

This was the first admission by a BOE member that financial disclosures were being changed at all much less to avoid “opening the door” by disclosing too much financial information regarding conflicts of interest.

Resistance has been high to changing the rules, first proposed earlier this year, primarily by Fuller and former Chair Mark Hubbard.

Previously reasons they offered for executive session receipt of the disclosures had included making sure they were “complete” and were not “incorrect” since, they said, filers might not realize what they are filing, despite the fact in fling they are required to notarize an “affidavit”.

The further minutes reflect a desperation to find reasons to resist complete public disclosure of the completed public disclosure forms.

Mr. Bieber said his point at minimum was they have a better relationship with the public regarding this. Chair Fuller asked Mr. Bieber how he proposed (the Board) do that. Mr. Bieber said maybe there was another way they could go over the Disclosures, perhaps a packet with Disclosures in them instead of spending time in the meeting in Executive Session doing that. Chair Fuller cautioned against that because if they were to get the Disclosures in a packet that is just that many more pieces of document that are out in the public in case their briefcase gets lost or misplaced and likened it to a State computer with sensitive information on it that got misplaced or lost.

Reached for comment Bieber, said in an email:

Change in application of Disclosure Law has been long overdue for the County employees and officers of Kauai. The Board of Ethics is finally conforming to State Law properly within its Rules.

I am proud to say this came from the public. I simply moved the Board of Ethics to continue to provide the public hearing arena to maintain open dialog. Ethics agreed.

Substantial credit for this change in important Disclosure Law application goes to the public individuals who testified to bring more sunshine into County government operation, a small yet substantial victory for much needed open government and democracy on Kauai.

According to Abrew, at the June 4 meeting after an executive session on the matter the board returned armed with a new county attorney’s opinion requiring the change in policy although he could not say which whether they met with new County Attorney Al Castillo or one of his deputies.

While the written opinion has not been released as yet, the BOE has been the only board or commission to release a county attorney’s opinion in many years and it could be released at their July meeting.

The public is still awaiting a promised new opinion on the enforcement of the prohibition of board and commission members appearing on behalf of private interests before other boards and commissions, as contained in the county charter’s section 20.02(d).

For more information on the BOE read PNN’s three part investigative series Unethical culture- Government service with a personal “touch”

Read Part 1- Bored of Ethics on the Board of Ethics?Read Part 2- The Long and Winding Road to InertiaRead Part 3- Deep Thoughts- A “Handy” Diversion