EC vs. Corp. Counsel in Honolulu

Many local ethics programs are caught up in an ongoing battle with the city or county attorney. Usually this battle goes on behind the scenes. But in Honolulu, due to an unusual grant of budget oversight to the corporation counsel, this battle has gone public.

I devoted a long section of my book Local Government Ethics Programs to the conflicts of interest and other problems that accompany the participation of city and county attorneys in ethics programs. In smaller jurisdictions, it is difficult to keep government attorneys completely separate from an ethics program, although the hiring by an ethics program of a contract attorney can give the program much of the independence it needs to be trusted by the public.

In a city like Honolulu, there is no reason for a city attorney to be involved in an ethics program in any way. The ethics program should have a monopoly on ethics advice and should have its own counsel and its own investigator (or use the Inspector General's office).

According to an AP article and an article on the Honolulu Civil Beat site this week, the Honolulu EC's executive director has complained about interference with the ethics program by the city's corporation counsel in a variety of areas. The complaint was set off by corp. counsel's review of the EC's budget, something that is rarely within a city attorney's jurisdiction.

If an ethics program does not have control over how it spends its budget, officials under its jurisdiction can, say, hamper its ability to investigate or to bring ethics proceedings, in order to benefit themselves, their appointing authorities, or their political colleagues, or simply out of spite for actions taken by the ethics program against them.

According to the articles, the corporation counsel has also (1) begun an audit of the EC's contract with its investigator, and (2) threatened "to withhold money unless internal communications were shared with attorneys." Such actions and threats, and the sharing of information with counsel to the officials under the EC's jurisdiction, seriously jeopardize an ethics program's independence and hamper its ability to oversee the conduct of these officials. Without this independence, there is no reason for the public to trust the decisions of the EC.

The most serious problem, however, is the corporation counsel's insistence on providing ethics advice. According to the AP article, the corp. counsel wrote to the EC "that it is her job to provide counsel to employees on all matters related to their city duties." And since she considers such counsel to be protected by attorney-client privilege (wrongly, I believe; see the discussion of this in my book), there is no way for the EC to know what ethics advice is being given, and no way for it to ensure that ethics advice is given consistently. This allows officials to forum shop, that is, go to whoever they think is most likely to give them the advice they want. This makes a mockery of ethics advice.

If nothing else, the corporation counsel lacks the experience and knowledge to provide ethics advice. She clearly does not even appreciate the conflicts of interest a corp. counsel has regarding involvement in an ethics program. She says what she feels her job is, but a government ethics professional would explain how she is dealing with her conflict situation. She would also take into account the fact that conflicts of interest situations involve the personal interests of the individuals who fill the public positions her office represents. As soon as it becomes a matter of their personal interests, these people are arguably no longer her clients. They are not just officials trying to follow laws. They are individuals caught between their personal interests and the public interest, and it is the EC that is charged with advising and enforcing the laws that apply to such conflicted individuals.

Robert Wechsler
Director of Research-Retired, City Ethics

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