Doe v. State Ethics Commission

494 P.2d 559, 53 Haw. 373, 1972 Haw. LEXIS 122

• Court: Hawaii Supreme Court
• Decided: March 7, 1972
• Docket: 5141
• Status: Published

Opinions

OPINION OF THE COURT BY

ABE, J.

The issue in this case is whether the State Ethics Commission has the power to consider complaints, make investigations, and prosecute charges concerning individuals who have terminated their employment with the State.

Plaintiffs are former employees of the State of Hawaii. Charges were brought against them for violation of sections of H.R.S. Chapter 84. While investigations relating to the charges were being conducted, both employees resigned. The circuit court enjoined the Ethics Commission’s proceedings noting that the plaintiffs were no longer in the employment of the State.

The act creating the Ethics Commission was enacted by the legislature to ensure honest government. The commission’s primary purpose is to remove dishonest individuals from positions of public trust and confidence. Under HRS § 84-33, employees may be reprimanded, put on probation, demoted, suspended, or discharged. Once a public employee has withdrawn from public service, however, the object of Chapter 84 is accomplished. If the act of a former employee warrants criminal prosecution or institution of civil action, other authorities may conduct any investigations necessary. There is no need for continued Ethics Commission action because the commission’s findings will be neither binding on the court nor competent evidence.

We note that other jurisdictions, considering similar statutes have held that commissions may continue to process charges even after the person being investigated has resigned. 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); Flood v. Monaghan, 201 Misc. 560, 108 N.Y.S.2d 414 (Sup. Ct. 1951); Baker v. Kennedy, 6 Misc. 2d 589, 161 N.Y.S.2d 720 (1957); Frederick v. Combs, 354 S.W.2d 506 (Ct. App. Ky. 1962).

Those cases are based, however, on provisions disqualifying disciplined employees from holding other public offices.

Ky. R.S. § 63.990 (1971); Tex. Const, art. XV, sec. 4. And in some of those cases, the power of the commissions to investigate former employees was based on the fact that former employees who were not technically discharged would be able to seek back pay for periods in which they were suspended from work. Flood v. Monaghan, 201 Misc. 560, 108 N.Y.S.2d 414 (Sup. Ct. 1951); Baker v. Kennedy, 6 Misc. 2d 589, 161 N.Y.S.2d 720 (1957).

Under our statute, by contrast, no justification for continued action exists. The power of the Ethics Commission to publish decisions educating public employees as to what conduct is considered ethical is not sufficient to warrant intrusion into the private life of a former employee, regardless of the fact that charges were filed while the employee was still in governmental service. The commission’s almost unlimited power to accuse, prosecute, and judge, and its discretion on when to charge an employee, when to start an investigation, and when to give an employee a hearing are concomitant with a serious danger of abuse. Appellees’ fear that the commission’s action in this case may have been politically motivated may not be entirely frivolous.¹ In view of the possibility of abuse, we do not believe that the legislature intended to give the commission jurisdiction over employees who have resigned from service, whether or not the charges were brought prior to the employees’resignation. The injunction issued below was properly granted.

Kathleen K.O. Conahan, Special Counsel, for defendant-appellant State Ethics Commission. Arthur S. K. Fong and Jack H. Mizuha for plaintiffsappellees.

Affirmed.

1 Appellees in their Answering Brief, p.18, state:

“The original charge was made in March. 1969, and no .action was thereafter taken long after the individual’s termination of public service which occurred in January, 1970. The amended charge of September 14, 1970, served on John Doe on September 15, 1970, coincidentally occurred during the heat of a contested gubernatorial election. One of the most serious charges was that of conflict of interest of the Administration. Was such amended charge based on political or publicity reasons and desire to continue proceedings?”