Council must tackle ethics conundrum

An unusual disagreement between the city’s top attorney and members of the city Ethics Commission and its staff raises questions about how seriously the city’s top officials believe in ethical government.

Evidence that certain City Council members violated the law by failing to disclose their conflicts of interest before voting favorably on major development projects, including the $6 billion rail project, raises an obvious question: Should their votes be declared null and void, and should the Council revisit its decisions and revote on them?

Corporation Counsel Donna Leong says no, on narrow legal grounds. Some members of the Ethics Commission and its staff disagree, citing a 1983 Intermediate Court of Appeals decision they say provides the legal basis for invalidating the votes.

Council members are expected to confer on the issue with the Council’s attorney — that would be Leong — behind closed doors in the coming weeks.

This conundrum arose from separate investigations by the commission, which found evidence that two Council members, Romy Cachola and Nestor Garcia, received questionable and sometimes illegal gifts from lobbyists prior to voting on matters affecting those lobbyists’ interests — all without disclosing this conflict.

Cachola and Garcia — both no longer on the Council — agreed to pay thousands of dollars in fines; Cachola did not formally admit guilt, but pointed his finger at other former and current Council members who he claims did the same thing.

Garcia admitted the wrongdoing as part of his settlement.

In both cases, the settlements resolved the cases without formal findings by the commission of the guilt of the parties.

This distinction allowed Leong to conclude that because the commission made “no findings … of misconduct or ethical violations … there is no reason to review any vote of the City Council.” She also said that the commission has no authority to determine if Council votes should be invalidated or retaken.

Leong may be correct on both counts. It will take the Council, or perhaps a lawsuit, to determine if votes need to be revisited.

Furthermore, there’s a good argument to be made that upending the Council’s decisions going back years would create a political and legal morass that would be detrimental to the public interest.

Even so, the Ethics Commission properly raised the question about the validity of the votes, and the Council is obligated to address it.

Cachola and Garcia, and possibly other Council members, violated the public trust by not properly disclosing their conflicts. It’s bad enough that public officials who control the public purse willingly accept gifts from those who lobby them for political favors. Hiding those transactions is worse. And attempting to marginalize the commission by discounting its advisory opinions is unconscionable. After all, the authority of the Ethics Commission does not derive from the good graces of politicians and their lawyers. It comes from the state Constitution’s Article XIV, which says:

“The people of Hawaii believe that public officers and employees must exhibit the highest standards of ethical conduct and that these standards come from the personal integrity of each individual in government.”

To that end, Article XIV mandates the creation of codes of ethics and ethics commissions to establish and promote those standards and, in a pointed reference to political meddling, requires that “ethics commissioners shall be selected in a manner which assures their independence and impartiality.”

Council members would be wise to take the commission’s opinions to heart and disclose all conflicts before voting. Or better yet, avoid such conflicts in the first place.