§84-31 - Duties of commission; complaint, hearing, determination.

PART IV. ADMINISTRATION AND ENFORCEMENT

§84-31  Duties of commission; complaint,hearing, determination.  (a)  The ethics commission shall have thefollowing powers and duties:

(1)  It shall prescribe forms for the disclosuresrequired by Article XIV of the Hawaii Constitution and section 84-17 and thegifts disclosure statements required by section 84-11.5 and shall establishorderly procedures for implementing the requirements of those provisions;

(2)  It shall render advisory opinions upon therequest of any legislator, employee, or delegate to the constitutionalconvention, or person formerly holding such office or employment as to whetherthe facts and circumstances of a particular case constitute or will constitutea violation of the code of ethics.  If no advisory opinion is rendered withinthirty days after the request is filed with the commission, it shall be deemedthat an advisory opinion was rendered and that the facts and circumstances ofthat particular case do not constitute a violation of the code of ethics.  Theopinion rendered or deemed rendered, until amended or revoked, shall be bindingon the commission in any subsequent charges concerning the legislator,employee, or delegate to the constitutional convention, or person formerly holdingsuch office or employment, who sought the opinion and acted in reliance on itin good faith, unless material facts were omitted or misstated by such personsin the request for an advisory opinion;

(3)  It shall initiate, receive, and consider chargesconcerning alleged violation of this chapter, initiate or make investigation,and hold hearings;

(4)  It may subpoena witnesses, administer oaths, andtake testimony relating to matters before the commission and require theproduction for examination of any books or papers relative to any matter underinvestigation or in question before the commission.  Before the commissionshall exercise any of the powers authorized in this section with respect to anyinvestigation or hearings it shall by formal resolution, supported by a vote ofthree or more members of the commission, define the nature and scope of itsinquiry;

(5)  It may, from time to time adopt, amend, andrepeal any rules, not inconsistent with this chapter, that in the judgment ofthe commission seem appropriate for the carrying out of this chapter and forthe efficient administration thereof, including every matter or thing requiredto be done or which may be done with the approval or consent or by order orunder the direction or supervision of or as prescribed by the commission.  Therules, when adopted as provided in chapter 91, shall have the force and effectof law;

(6)  It shall have jurisdiction for purposes ofinvestigation and taking appropriate action on alleged violations of thischapter in all proceedings commenced within six years of an alleged violationof this chapter by a legislator or employee or former legislator or employee. A proceeding shall be deemed commenced by the filing of a charge with thecommission or by the signing of a charge by three or more members of thecommission.  Nothing herein shall bar proceedings against a person who by fraudor other device, prevents discovery of a violation of this chapter;

(7)  It shall distribute its publications without costto the public and shall initiate and maintain programs with the purpose ofeducating the citizenry and all legislators, delegates to the constitutionalconvention, and employees on matters of ethics in government employment; and

(8)  It shall administer any code of ethics adopted bya state constitutional convention, subject to the procedural requirements ofthis part and any rules adopted thereunder.

(b)  Charges concerning the violation of thischapter shall be in writing, signed by the person making the charge under oath,except that any charge initiated by the commission shall be signed by three ormore members of the commission.  The commission shall notify in writing everyperson against whom a charge is received and afford the person an opportunityto explain the conduct alleged to be in violation of the chapter.  Thecommission may investigate, after compliance with this section, such chargesand render an informal advisory opinion to the alleged violator.  Thecommission shall investigate all charges on a confidential basis, havingavailable all the powers herein provided, and proceedings at this stage shallnot be public.  If the informal advisory opinion indicates a probableviolation, the person charged shall request a formal opinion or within areasonable time comply with the informal advisory opinion.  If the personcharged fails to comply with such informal advisory opinion or if a majority ofthe members of the commission determine that there is probable cause for beliefthat a violation of this chapter might have occurred, a copy of the charge anda further statement of the alleged violation shall be personally served uponthe alleged violator.  Service shall be made by personal service upon thealleged violator wherever found or by registered or certified mail with requestfor a return receipt and marked deliver to addressee only.  If after duediligence service cannot be effected successfully in accordance with the above,service may be made by publication if so ordered by the circuit court of thecircuit wherein the alleged violator last resided.  The state ethics commissionshall submit to the circuit court for its consideration in issuing its order toallow service by publication an affidavit setting forth facts based upon thepersonal knowledge of the affiant concerning the methods, means, and attemptsmade to locate and effect service by personal service or by registered orcertified mail in accordance with the above.  Service by publication whenordered by the court shall be made by publication once a week for foursuccessive weeks of a notice in a newspaper of general circulation in thecircuit of the alleged violator's last known state address.  The allegedviolator shall have twenty days after service thereof to respond in writing tothe charge and statement.

(c)  If after twenty days following service ofthe charge and further statement of alleged violation in accordance with thissection, a majority of the members of the commission conclude that there isprobable cause to believe that a violation of this chapter or of the code ofethics adopted by the constitutional convention has been committed, then thecommission shall set a time and place for a hearing, giving notice to thecomplainant and the alleged violator.  Upon the commission's issuance of a noticeof hearing, the charge and further statement of alleged violation and thealleged violator's written response thereto shall become public records.  Thehearing shall be held within ninety days of the commission's issuance of anotice of hearing.  If the hearing is not held within that ninety-day period,the charge and further statement of alleged violation shall be dismissed;provided that any delay that is at the request of, or caused by, the allegedviolator shall not be counted against the ninety-day period.  All parties shallhave an opportunity (1) to be heard, (2) to subpoena witnesses and require theproduction of any books or papers relative to the proceedings, (3) to berepresented by counsel and (4) to have the right of cross-examination.  Allhearings shall be in accordance with chapter 91.  All witnesses shall testifyunder oath and the hearings shall be open to the public.  The commission shallnot be bound by the strict rules of evidence but the commission's findings mustbe based upon competent and substantial evidence.  All testimony and otherevidence taken at the hearing shall be recorded.  Copies of transcripts of suchrecord shall be available only to the complainant and the alleged violator attheir own expense, and the fees therefor shall be deposited in the State'sgeneral fund.

(d)  A decision of the commission pertaining tothe conduct of any legislator, delegate to the constitutional convention, oremployee or person formerly holding such office or employment shall be inwriting and signed by three or more of the members of the commission.  Adecision of the commission rendered after a hearing together with findings andthe record of the proceeding shall be a public record.

(e)  A person who files a frivolous charge withthe commission against any person covered by this chapter shall be civillyliable to the person charged for all costs incurred in defending the charge,including but not limited to costs and attorneys' fees.  In any case where thecommission decides not to issue a complaint in response to a charge, thecommission shall upon the written request of the person charged make a findingas to whether or not the charge was frivolous.  The person charged may initiatean action in the circuit court for recovery of fees and costs incurred incommission proceedings within one year after the commission renders adecision.  The commission's decision shall be binding upon the court forpurposes of a finding pursuant to section 607-14.5.

(f)  The commission shall cause to be publishedyearly summaries of decisions, advisory opinions, and informal advisoryopinions.  The commission shall make sufficient deletions in the summaries toprevent disclosing the identity of persons involved in the decisions oropinions where the identity of such persons is not otherwise a matter of publicrecord under this chapter. [L 1972, c 163, pt of §1; am L 1979, c 91, §8; am L1980, c 87, §§3, 4; am L 1981, c 82, §12; gen ch 1985; am L 1989, c 291, §2; amL 1990, c 220, §1; am L 1992, c 322, §2; am L 1995, c 220, §§2, 3 and c 221,§1; am L 1997, c 51, §1]

Law Journals and Reviews

  Confidentiality Breeds Contempt:  A First Amendment Challengeto Confidential Ethics Commission Proceedings of the City & County ofHonolulu.  18 UH L. Rev. 797.

Case Notes

  Jurisdiction of commission, under former law, over anemployee after the employee's resignation.  53 H. 373, 494 P.2d 559.