In a decision last year, the Nevada Supreme Court threw out a state ethics law prohibiting an elected official from voting on matter in which they had a conflict of interest. In the case of a city councilman, the court concluded voting is a form of free speech, and that the conflict of interest statute was “overbroad” and too vague to clearly define the conditions requiring recusal from voting.

Thanks to inversecondemnation.com for flagging the case, which will be considered by the U.S. Supreme Court at the end of this month.

The question: Do Elected Officials With Conflicts Of Interest Have A First Amendment Right To Vote?

Here’s the conflict in the case before the court, in a nutshell:

The casino developer’s consultant was a “longtime professional and personal friend” of the councilman and was his campaign manager.

Inversecondemnation.com notes, quoting from an article by the blog’s author:

…the Court’s decision could have widespread impact on local zoning and planning procedures nationwide, particularly if it agrees with the rationale of the Nevada court, which concluded that the councilman’s voting on the development application was protected political speech, and consequently that the ethics statute was subject to strict judicial scrutiny. Should the Court adopt this approach, a variety of state and local regulations governing the conduct of members of city and county councils and boards of supervisors, planning commissions, zoning boards of appeals, and similar bodies would be called into question, and possibly subject to serious challenge.

After writing this earlier today, I began to wonder how Hawaii’s law would work.

Well, here’s the conflict provision of the City Charter that applies to a member of the Honolulu City Council:

Section 11-102. Conflicts of Interest–

1. No elected or appointed officer or employee shall:

(a) Solicit or accept any gift, directly or indirectly, whether in the form of money, loan, gratuity, favor, service, thing or promise, or in any other form, under circumstances in which it can reasonably be inferred that the gift is intended to influence the officer or employee in the performance of such person’s official duties. Nothing herein shall preclude the solicitation or acceptance of lawful contributions for election campaigns.

(b) Disclose confidential information gained by reason of such person’s office or position or use such information for the personal gain or benefit of anyone.

(c) Engage in any business transaction or activity or have a financial interest, direct or indirect, which is incompatible with the proper discharge of such person’s official duties or which may tend to impair the independence of judgment in the performance of such person’s official duties.

(d) Receive any compensation for such person’s services as an officer or employee of the city from any source other than the city, except as otherwise provided by this charter or by ordinance.

(e) Represent private interests in any action or proceeding against the interests of the city or appear in behalf of private interests before any agency, except as otherwise provided by law.

Section (c) appears to apply to this type of situation. However, it reflects the imprecise language found unconstitutional by the Nevada Supreme Court and would appear to be “at risk” in the coming Supreme Court decision.