Doe v. State Ethics Commission

DISSENTING OPINION OF

PJCHARDSON, C.J.,

WITH WHOM LEVINSON, J., JOINS

I respectfully dissent.

The majority position is premised on a narrow construction of the object of the State Ethics Commission under HRS chapter 84. The rationale of the majority may be stated as follows: The primary function of the Ethics Commission under the subject statute is to remove dishonest individuals from positions of public trust. This purpose is accomplished when an alleged delinquent state employee voluntarily terminates his employment with the state. Hence, continuing jurisdiction by the Ethics Commission is unnecessary.

The legislature did not intend that chapter 84 be given such a circumscribed construction. The legislature required clearly in HRS § 84-1 that this “chapter shall be *376liberally construed to promote high standards of ethical conduct in state government.” This legislative mandate compels a broader construction of the statute’s objects than that adopted by the majority.

Consistent with the liberal construction to be given the statute, a vital function of the Ethics Commission, in addition to eliminating dishonest individuals from the state’s employment, is establishment of standards of conduct which will serve as guides for state legislators and employees. The obvious value of this education mandate is the preventive ethics function served.

The educational purpose of the statute is spelled out by certain provisions in the statute and is consistent with the stated legislative intent and purposes of chapter 84. Section 84-31(f) requires the Commission to publish “yearly summaries of decisions on questions raised by complaints or by requests for advisory opinions.” In addition, “The commission shall make sufficient deletions in the summaries to prevent disclosing the identity of persons involved in the decisions or opinions.” The only plausible purpose that may be attributed to section 84-31(f) is establishment of guidelines for conduct of state employees. The object of publication of decisions and opinions deleting names of censured parties, surely is not punitive but rather for educational purposes.

This reading of section 84-31(f) squares with the stated legislative intent and purposes of chapter 84. The preamble to Act 263, S.L.H. 1967 states:

. . . The purposes of this Act are (1) to prescribe standards of conduct for the guidance of state legislators and employees; (2) to prohibit certain conduct involving state legislators and employees; (3) to establish a state ethics commission; (4) to provide for advisory opinions by the state ethics commission for the interpretation of laws and rules relating to the ethics of state legislators and employees; and (5) to provide a method whereby state legislators and employees unjustly accused of improper conduct can obtain vindication.

In addition, the Conference Committee Report No. 16, *3774th Legislature, First Session (1967) states:

With the passage of time, it is hoped that the advisory opinions will furnish valuable guides, be a source of reference for all persons concerned and contribute to a proper understanding of the code. These opinions should reflect the practical operation of the code and begin to develop a body of “case law” on ethics.

It is clear that prescription of conduct for state legislators and employees through publication of decisions and opinions is a primary function of the Ethics Commission. To perform this function effectively, the Commission must be granted jurisdiction to continue processing changes in the instant case.

Additional considerations require that the Ethics Commission be given continuing jurisdiction after one has terminated his employment with the state. First, to deny continuing jurisdiction in the present case would produce an absurd result. Statutes should be construed in a manner that avoids effecting an absurd result. Pacific Insurance Co. v. Oregon Auto. Ins. Co., 53 Haw. 208, 490 P.2d 899 (1971). Construing the subject statute to deny jurisdiction would lead to patent absurdity. In the case of Richard Doe, the consequence is that the Ethics Commission is prevented from saying that a state employee who plans to terminate his employment with the state may not, while still state-employed, influence legislation that would favorably affect his personal station after leaving state employment. The legislature certainly could not have intended this result.

Second, proceedings by the Ethics Commission should continue in order to determine the former employee’s eligibility for later re-employment by the state. The Commission should be allowed to make investigations and hold hearings while the evidence is fresh and witnesses available. Its findings should be entered on the confidfential personnel record so that later evaluation of the individual’s record will clearly indicate whether the individual has been cleared of the charges or censured and thereby possibly precluded from securing employment by the state.

*378The majority cites, but finds distinguishable, case authorities which support granting the Commission continuing jurisdiction. I find these cases applicable to the instant case and consistent with my position. The rationale in these cases is that resignation of office should not shield an officer from the substantial consequences of an adverse determination of the charges against him. One substantial consequence of discipline is disqualification from holding other public offices. Frederick v. Combs, 354 S.W.2d 506 (Ct. App. Ky. 1962);Ferguson v. Maddox, 114 Tex. 85, 263 S.W. 888(1924); Brooklyn Audit. Co. v. Department of Taxation and Finance, 275 N.Y. 284, 9 N.E.2d 930, 294 N.Y.S. 762 (1937); Baker v. Kennedy, 6 Misc. 2d 589, 161 N.Y.S.2d 720 (1957).

For the above-stated reasons I would reverse the ruling of the circuit court.