PART IV. 
ADMINISTRATION AND ENFORCEMENT



 



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



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



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



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



(4)  It may subpoena witnesses, administer oaths, and
take testimony relating to matters before the commission and require the
production for examination of any books or papers relative to any matter under
investigation or in question before the commission.  Before the commission
shall exercise any of the powers authorized in this section with respect to any
investigation or hearings it shall by formal resolution, supported by a vote of
three or more members of the commission, define the nature and scope of its
inquiry;



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



(6)  It shall have jurisdiction for purposes of
investigation and taking appropriate action on alleged violations of this
chapter in all proceedings commenced within six years of an alleged violation
of 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 the
commission or by the signing of a charge by three or more members of the
commission.  Nothing herein shall bar proceedings against a person who by fraud
or other device, prevents discovery of a violation of this chapter;



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



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



(b)  Charges concerning the violation of this
chapter 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 or
more members of the commission.  The commission shall notify in writing every
person against whom a charge is received and afford the person an opportunity
to explain the conduct alleged to be in violation of the chapter.  The
commission may investigate, after compliance with this section, such charges
and render an informal advisory opinion to the alleged violator.  The
commission shall investigate all charges on a confidential basis, having
available all the powers herein provided, and proceedings at this stage shall
not be public.  If the informal advisory opinion indicates a probable
violation, the person charged shall request a formal opinion or within a
reasonable time comply with the informal advisory opinion.  If the person
charged fails to comply with such informal advisory opinion or if a majority of
the members of the commission determine that there is probable cause for belief
that a violation of this chapter might have occurred, a copy of the charge and
a further statement of the alleged violation shall be personally served upon
the alleged violator.  Service shall be made by personal service upon the
alleged violator wherever found or by registered or certified mail with request
for a return receipt and marked deliver to addressee only.  If after due
diligence service cannot be effected successfully in accordance with the above,
service may be made by publication if so ordered by the circuit court of the
circuit wherein the alleged violator last resided.  The state ethics commission
shall submit to the circuit court for its consideration in issuing its order to
allow service by publication an affidavit setting forth facts based upon the
personal knowledge of the affiant concerning the methods, means, and attempts
made to locate and effect service by personal service or by registered or
certified mail in accordance with the above.  Service by publication when
ordered by the court shall be made by publication once a week for four
successive weeks of a notice in a newspaper of general circulation in the
circuit of the alleged violator's last known state address.  The alleged
violator shall have twenty days after service thereof to respond in writing to
the charge and statement.



(c)  If after twenty days following service of
the charge and further statement of alleged violation in accordance with this
section, a majority of the members of the commission conclude that there is
probable cause to believe that a violation of this chapter or of the code of
ethics adopted by the constitutional convention has been committed, then the
commission shall set a time and place for a hearing, giving notice to the
complainant and the alleged violator.  Upon the commission's issuance of a notice
of hearing, the charge and further statement of alleged violation and the
alleged violator's written response thereto shall become public records.  The
hearing shall be held within ninety days of the commission's issuance of a
notice 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 alleged
violator shall not be counted against the ninety-day period.  All parties shall
have an opportunity (1) to be heard, (2) to subpoena witnesses and require the
production of any books or papers relative to the proceedings, (3) to be
represented by counsel and (4) to have the right of cross-examination.  All
hearings shall be in accordance with chapter 91.  All witnesses shall testify
under oath and the hearings shall be open to the public.  The commission shall
not be bound by the strict rules of evidence but the commission's findings must
be based upon competent and substantial evidence.  All testimony and other
evidence taken at the hearing shall be recorded.  Copies of transcripts of such
record shall be available only to the complainant and the alleged violator at
their own expense, and the fees therefor shall be deposited in the State's
general fund.



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



(e)  A person who files a frivolous charge with
the commission against any person covered by this chapter shall be civilly
liable 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 the
commission decides not to issue a complaint in response to a charge, the
commission shall upon the written request of the person charged make a finding
as to whether or not the charge was frivolous.  The person charged may initiate
an action in the circuit court for recovery of fees and costs incurred in
commission proceedings within one year after the commission renders a
decision.  The commission's decision shall be binding upon the court for
purposes of a finding pursuant to section 607-14.5.



(f)  The commission shall cause to be published
yearly summaries of decisions, advisory opinions, and informal advisory
opinions.  The commission shall make sufficient deletions in the summaries to
prevent disclosing the identity of persons involved in the decisions or
opinions where the identity of such persons is not otherwise a matter of public
record under this chapter. [L 1972, c 163, pt of §1; am L 1979, c 91, §8; am L
1980, c 87, §§3, 4; am L 1981, c 82, §12; gen ch 1985; am L 1989, c 291, §2; am
L 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 Challenge
to Confidential Ethics Commission Proceedings of the City & County of
Honolulu.  18 UH L. Rev. 797.



 



Case Notes



 



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