Monday, November 02, 2015
Ethics Commission was not making a rule for the teachers
Consideration of whether stipends paid to teachers from non-Department of Education entities are consistent with the State Ethics Code; consideration of staff recommendation to issue guidance to the Department of Education regarding the application of the State Ethics Code to such stipends.—portion of Agenda of the Oct. 29 meeting of the State Ethics Commission
by Larry Geller
There’s no “rule” and none is proposed
As the pull-quote indicates, the purpose of the agenda item for last week’s Ethics Commission meeting was to determine if stipends that teachers are apparently receiving are consistent with the state Ethics Code.
What is the Ethics Code? It is a long-standing state law: Hawaii Revised Statutes, Chapter 84, Standards of Conduct. Hawaii’s ethics code is binding on all state elected officials and employees.
Like any other law, those subject to it are expected to understand and obey the law.
Just as the police are charged with enforcing the traffic laws, an ethics commission is there to enforce the ethics code.
Sometimes, as appears to be the case in this situation, a long-standing practice is suspected of being contrary to the law. That’s why this situation with teachers’ outside pay was on the agenda for consideration.
Though it may be a long-standing, established practice, no matter.
Suppose you’ve been jaywalking almost every day from your driveway in middle of the block to the bus stop directly across the street. Even though you have done it for years, one day you get pinched. It doesn’t matter to the cop that you always do this, and it won’t matter to a judge if you choose to contest the citation.
What does it mean to “issue guidance?”
If the Ethics Commission is contemplating “issuing guidance,” that’s part of their role to educate the public, spelled out right at the top of Chapter 84. The idea is to provide information so that the teachers can find an alternative way to perform the activity in question, if there is a way, or else stop the illegal activity, if there isn’t. Ethics commissions are there to encourage compliance, not to pounce on people with fines. The Commission staff did make suggestions for alternative ways that the stipends might be handled.
The teachers can review the law and the suggested alternatives and perhaps other options and see what they want to do. They can also wait for the guidance, if the Commission decides to issue it.
The Ethics Commission is still working on the question, which is incorrectly described in the article as a “measure.” The legislature passes measures (bills), the Commission does not make laws. There is no new “measure” that the teachers have to wait for. They and the DOE can start right now to figure how they will come into compliance with the law.
The way the news coverage of teachers’ ethics issues has gone, the Ethics Commission has been made out to be a bunch of meanies. That’s why it is important that the newspaper educate itself and report accurately.
Are rules first required to issue guidance?
The article reports that attorney Colleen Hanabusa believes that the Commission is “violating due process in issuing ethics guidance without opening the process up to the public by way of a formal rule-making process.” She’s an attorney and I’m not, but still, I could not find cases where courts have required rules to be in place for the Ethics Commission to either issue guidelines or advice or to enforce an existing law. And the legislative history, as far as I understand it, agrees.
There have been hundreds of opinions or guidelines issued so far over the years.
Perhaps Hanabusa would prefer that the teachers now receiving outside payments should simply be dragged into court? Then a judge would decide whether they have broken the law or not. Much better this way.
An article on Friday by the same reporter on the Commission is similarly problematic. For example, it uses language such as “pass guidelines” which again characterize the Commission as a law-making body, which it isn’t. That’s another article—sticking with the teacher issue, there is no “rule” proposed, and someone might sit down with the reporter and review what actually took place at that meeting and how best to report it.
And then how to correct the record—if a newspaper is the “first draft of history” it needs to be more careful.