The city’s top civil attorney said it’s not up to the Honolulu Ethics Commission staff to determine the potential ramifications of a settlement agreement reached by the commission and former City Councilman Nestor Garcia.

Chuck Totto, the executive director of the Ethics Commission, said Wednesday that his staff believes Garcia’s votes on rail and Kapolei development projects should be invalidated because he had failed to disclose a potential conflict of interest related to those projects.

But Corporation Counsel Donna Leong, in an emailed response Thursday to a query by the Honolulu Star-Advertiser, said: "There has been no decision by anyone, including anyone in the city, as to whether former Councilmember Nestor Garcia’s votes (referred to in an Ethics Commission advisory opinion released Wednesday) are invalid."

Leong said she "will be reaching out to the Ethics Commission to request the legal and factual bases" for Totto’s conclusions "given the seriousness of the statements" he made to the Star-Advertiser that Garcia’s votes should be nullified because he had not disclosed a conflict before voting on bills tied to the rail and Kapolei projects.

The advisory opinion said that Garcia had agreed to pay the city $8,100 to settle a case that alleges he accepted free meals and golf rounds from those who would benefit from votes involving the city’s $6 billion rail project and several Kapolei rezonings, and then did not declare potential conflicts before participating in votes advancing those causes.

The ruling is raising eyebrows at Honolulu Hale about the validity of votes related to both projects because Garcia’s case stems from allegations made by former Councilman Romy Cachola last fall that he was being unfairly singled out when the Ethics Commission fined Cachola for accepting improper gifts.

Cachola said that besides himself and Garcia, four other current and former Council members also accepted free meals and golf rounds from Aina Nui Corp., master developer of Kapolei, and its predecessor, the former Campbell Estate, as well as Pacific Resource Partnership, the pro-rail political action group that spent millions to support pro-rail candidates.

Neither Cachola, Garcia or the other four Council members declared a potential conflict when voting on matters pertaining to the development of rail or Kapolei and as a result, Cachola said, those votes should be nullified.

Totto, in response to questions by the Star-Advertiser, agreed with Cachola that Garcia’s votes should be invalidated.

"Because (Garcia) did not disclose the conflict before voting on the lobbyists’ measures, his vote would be nullified," Totto said. "Then the Council would have to determine whether the subtraction of his vote would change whether the measure passed."

Totto declined to comment on the status of the cases resulting from Cachola’s allegations involving current Council members Ikaika Anderson and Ann Kobayashi, and former members Todd Apo and state Sen. Donovan Dela Cruz.

A single Council member’s vote likely would matter only on close votes but if more votes could deemed invalidated, it could theoretically spell trouble for all the votes that benefited lobbyists from whom Council members received gifts.

Leong said in her email that when Totto made similar statements to the media when Cachola’s case was resolved, she asked him for the reason he believed the former councilman’s votes should be invalidated. "Ultimately, Mr. Totto confirmed to me that ‘the EC (commission) did not nullify the CM’s (Council member’s) vote.’"

It is within the commission’s purview to impose civil fines and recommend disciplinary action against city officers and employers if, after a hearing, it finds conflicts of interest and violations of the city’s standards of conduct, she said.

"However, the commission does not have the authority to determine that such a violation nullifies a Council member’s vote on any matter," Leong said. "Such an assertion, which has far-ranging implications, should not be made lightly or without consideration of the proven facts and circumstances of the entire case."

The advisory opinion involving Garcia makes no formal finding or conclusion of wrongdoing, but points out that he "admitted and acknowledged the alleged violations."

Totto said Thursday that he stands by his staff’s position on the situation. He declined to respond to Leong’s statements.

Michael Green, the attorney who represented Cachola in his Ethics Commission case, said it’s clear to him and his client that the votes made by the Council members should be invalidated.

"You have to announce the potential conflict (before a vote)," Green said. "If you don’t, your vote is void, not voidable, void."

Longtime rail opponent Cliff Slater maintains the commission’s advisory opinion involving Garcia will ultimately lead to the Council’s votes being invalidated.

But if the invalidated votes are the only issue, he said, the current Council today will likely vote again and advance the project "given political realities," he said.

But other snags and cost increases to the project as it progresses could create a public climate that pressures enough Council members to halt the project, Slater said.

"The public is getting more and more disenchanted with this, so pretty soon it’s going to get to the point where people’s political ambitions are going to be thwarted by this, and then you’ll see some turnaround," he said. "It’s going to be more that than this one political issue."