Thursday, June 17, 2010


SHHHH: Another day another Hawai`i governmental travesty of justice, this time the red-queen-style “execution first, trial later” firing of Hawaii State Ethics Commission Executive Director Dan Mollway after 24 years on the job.

While we’ve criticized Mollway for his lack of aggression and tendency to seek slaps on the wrist in many cases, the way he was fired typifies the shady way many boards and commissions hire and fire their executives behind closed doors.

In response to the news today Disappeared News’ Larry Geller is questioning the firing and:

has faxed a request to the Chair of the Commission requesting copies of the minutes of its executive sessions that included discussion of the termination of Mr. Mollway.

The request is based on the strong public interest in the process by which the Ethics Commission carried out its action, a process that has been criticized in public testimony presented to the Commission. The Commission has declined to post the testimony on its website, but under Hawaii’s public records law it must provide copies to anyone who requests it.

But while Geller is rightfully asking the commission to provide the “secret sauce” there’s really only one person to blame for the surreptitious nature of the whole process- Mollway himself.

Under law, investigatory and/or disciplinary proceedings regarding “personnel matters” are to be closed to the pubic with one exception- the target may request that the matter is dealt with entirely in public.

But Mollway, like almost every other employee in his position, chose to keep the investigation and surrounding documents secret- a traditionally losing strategy.

That’s because the elephant in the room that no one is really mentioning is that these things are usually political in nature, in this case involving a board that has, over eight years, been stacked with appointees of Republican Linda Lingle and as the clock is running out, they’re going after someone that has been a target of partisan snipes for many years.

So why did Mollway choose to keep the investigation under wraps? It’s anyone’s guess but it was probably something he didn’t give much thought to, possibly related to the fact that a medical problem- identified for the first time today as a problem with “migraines”- was at the heart of the matter.

It’s hard to think of many examples of people who decided to make their matter public. But when they do they seem to be successful in turning the tables on the investigatory body because, as anyone whose dealt with governmental secrecy knows, it’s usually the body doing the investigation that has more to hide.

This was shown in archetype during the political persecution of two Kaua`i police commission members who were charged with unethical activities involved in the hiring of former Police Chief KC Lum.

Both Chair Michael Ching and Commissioners Carl Furtado were targets of a Kaua`i Board of Ethics investigation based on allegations contained in a complaint filed by Council Chair Kaipo Asing, at first on official stationary but later, after that was found to be improper and itself a violation of the ethics code, as a private citizen.

But the two chose divergent tactics in fighting the charges with Ching preferring to go the closed door route and Furtado demanding an open review.

The results? While the retired Maui judge appointed to hear Ching’s case didn’t really find a true violation and stated so in his report the ethics board revealed only sections of his report to make it seem like he did and presented those pages to the council to show guilt.

Despite the fact that the whole report surfaced - including the exculpatory portions- when a citizen claimed “ a little bird dropped it through my window”, when he tried to submit it as testimony before the council, they refused to accept it and the actual pages were physically thrown back at him during an open council session.

When he tried to go to the local newspaper with the full report he was equally thwarted by a reporter and editor of questionable intelligence and/or integrity who either couldn’t or didn’t want to figure out what the truth was.

Furtado on the other hand was cleared of charges because under the light of day it was apparent there was no real evidence of unethical activity- or, more importantly, no evidence that the county attorney’s office was willing to state in public and submit to cross-examination.

If Mollway had chosen the open session route it seems that the lack of evidence his attorney has alleged as well as the illegal nature of the firing (apparently based on a medical condition) might well have cause the charges to be dropped rather than expose the commission’s actions to the scrutiny of the press in the high profile case.

If nothing else it should serve as a precautionary tale for those who have the opportunity to open charges against them to public review, turning the intimidation tables on those who would use their office for political vendettas.

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