Since the Honolulu Ethics Commission voted to ignore concerns raised by its staff and instead adopt a new and restrictive policy for communicating with the public and the news media, the reactions have been uniformly negative.

Here’s a brief recap.

There have been two posts here concerning the new policy (June 25: “A two-prong attack on ethics“, and June 26: “City Ethics Commission rejected staff concerns about restrictive media policy“).

My conclusion: “…these restrictions are bad policy, bad for ethics, bad for the public.”

Some strong words from a Honolulu Star-Advertiser editorial, June 29: “Ethics panel’s media policy must be voided”

Don’t be fooled. The Honolulu Ethics Commission’s restrictive new media policy is not designed to foster more accurate reporting, or even to rein in a single executive director. It exists to control the flow of public information, and in doing so, diminishes a fundamental principle of a democratic society and reflects a profound disregard for freedom of speech and freedom of the press.

That a commission charged with advancing ethical conduct in city government would act so ignobly against the public trust is all the more outrageous. It is not enough to register mere outrage at this misguided policy change, which was approved over the objection of the board chairwoman, who voted against it. This decision to effectively muzzle commission members, a long-time executive director and other staff members must be overturned.

Hawaii News Now editorial by Rick Blangiardi: “Local Connection: Ethics Commission”

In a very disturbing decision the commission voted to muzzle executive director Chuck Totto…forcing him to consult with commissioners before he can respond to media questions.

The reason seems to be Totto’s direct answers to Hawaii News Now… when we asked whether council members’ votes on the rail project could be nullified due to secret gifts from lobbyists.

Chuck Totto is an attorney and highly qualified to educate the public on these matters. Before being city ethics director he was the state consumer advocate.

Most of the part-time commissioners who voted to muzzle him are former judges. Judges may know about law, but spend their careers isolated and insulated from media contact. They don’t know anything about public communication.

I can’t think of anyone worse to be advising the ethics director about what he can and cannot say to the public.

This is a bad policy made under pressure from special interests the very thing our ethics laws are supposed to prevent.

It should be reversed and Chuck Totto reassured that not only can he work with the media…he should be encouraged to do so.

Civil Beat Editorial Board, June 30: “Honolulu Ethics Commission Needs to Scrap Its New Anti-Media Policy.”

The new city media policy has every appearance that it was created for purely political purposes, to rein in a strong voice for good government whose candor sometimes makes other leaders uncomfortable.

The timing is interesting, too. As Ian Lind recently reported in his blog, the Honolulu Ethics Commission has 17 open and interrelated investigations involving two departments, seven subjects and 45 to 50 witnesses. The investigations have absorbed hundreds of hours of investigative work over the last 10 months.

And all this as Mayor Caldwell ramps up his re-election campaign. Negative publicity on ethical problems on his watch would not play well with the voters.

Is protecting individual officials more important than ensuring government integrity? That’s a perception that the Ethics Commission, as well as every employee of the City and County of Honolulu including Mayor Caldwell, should take every reasonable step to avoid.

According to a report by Keoki Kerr at Hawaii News Now, the media policy is a result of a disagreement over how to answer questions concerning the possibility that undisclosed conflicts of City Council members could void key votes authorizing the Honolulu rail project (“Ethics Commission clamps down on director who says rail votes might be thrown out“).

After former Councilman Romy Cachola agreed to pay a $50,000 ethics fine last September for accepting fancy meals and golf from lobbyists including rail transit supporters and then failing to disclose the conflict, Totto told Hawaii News Now he was looking into whether Cachola’s votes in favor of rail should be disqualified.

“Whether there are any unlawful gifts that required disclosure and the disclosure did not occur, making council members’ votes null and void,” Totto told HNN last Sept. 29.

Comments like that to reporters got Totto in hot water with his bosses on the Ethics Commission, who Wednesday questioned him why he answered reporters’ questions on the subject.

“Because the commission has said in the past that the vote is nullified if there was a failure to make the disclosure of conflict,” Totto told commissioners at their monthly meeting Wednesday.

Ethics Commissioner Riki May Amano, a retired state judge, said, “But the issue’s not before us.”

And ethics Commissioner Victoria Marks, another retired state judge, said, “The issue about the vote is not before this commission.”

Totto then responded: “So you’re suggesting then that I should say that the commission has done this in the past?”

“If there’s no public disclosure, then the individual’s vote is, under Hawaii law, appellate law, void,” Totto said, noting Commission staff made those findings in three recent cases.

So what is the law regarding the possibility throwing out city council votes due to members’ conflicts?

Well, there’s Article XI of the City Charter, which contains the basic regarding prohibited conflicts of interest, and requirements for disclosure of potential conflicts.

The section on penalties does not mention voiding votes due to undisclosed conflicts or other violations of the ethics law.

The failure to comply with or any violation of the standards of conduct established by this article of the charter or by ordinance shall be grounds for impeachment of elected officers and for the removal from office or from employment of all other officers and employees. The appointing authority may, upon the recommendation of the ethics commission, reprimand, put on probation, demote, suspend or discharge an employee found to have violated the standards of conduct established by this article of the charter or by ordinance. The ethics commission may also impose civil fines established by ordinance for violations of the standards of conduct committed by elected and appointed officers and employees of the city with significant discretionary or fiscal power as determined by ordinance.

The City Charter further confuses the matter by also providing that “All council members shall have the right to vote in the council at all times….” (Section 3-107).

But a 1983 decision by the Intermediate Court of Appeals involving a city council vote recognized that the charter requirement that conflicts be disclosed before voting implicitly disqualifies a council member who is in violation of the requirement from voting (Hui Malama Aina O Ko’olau v. Pacarro).

However, the vote is not automatically nullified.

Fong’s failure to strictly comply with the disclosure requirements and his vote in favor of the extension of the time limit does not ipso facto invalidate the extension.

Although Charter section 11-103 implicitly disqualified Fong from voting until he made the required disclosure, the Hawaii Supreme Court has held that “where the required majority exists without the vote of the disqualified member, his participation in the deliberation and in the voting will not invalidate the result.” Waikiki Resort Hotel, 63 Haw. at 248, 624 P.2d at 1371; citing Singewald v. Minneapolis Gas Co., 274 Minn. 556, 142 N.W.2d 739 (1966); Anderson v. City of Parsons, 209 Kan. 337, 496 P.2d 1333 (1972). Since only five votes were necessary and Fong’s was one of six votes, the extension of time until December 31, 1981 was not invalidated by Fong’s vote.

In the case of the rail votes, though, it appears that the majority favoring rail in earlier votes could disappear if the commission extends its findings of undisclosed conflicts to additional council members.

The Honolulu Ethics Commission previously took a slightly different approach. Guidelines on abstention from voting issued by the commission in 1993 contain this advice to council members on whether they can vote on matters in which they may have a conflict:

You will note that the section quoted above is silent on the matter of voting by the person holding a conflict of interest. However, the Charter elsewhere (Section 3-107) does specifically state that “[a]ll councilmembers shall have the right to vote in the council at all times.”

Nevertheless, the Standards of Conduct address the subject of fair and equal treatment. Section 11-104, RCH, provides as follows:

Elected or appointed officers or employees shall not use their official positions to secure or grant special consideration, treatment, advantage, privilege or exemption to themselves or any person beyond that which is available to every other person.

The Ethics Commission believes that Section 11-104 of the Charter has the result of prohibiting voting on a matter in which any City officer or employee has a business or financial interest, although he or she still would be required to file a disclosure statement, as required by Section 11-103, RCH.

The Ethics Commission acknowledges that its interpretation of the Standards of Conduct cannot overrule councilmembers’ right to vote as guaranteed in Section 3-107, RCH. However, the Commission encourages Councilmembers to abstain voluntarily from voting on matters in which they have direct or indirect business or financial interests.

In the end, it appears that Commission Executive Director Chuck Totto was certainly correct in telling reporters that council votes could be nullified by findings that the ethics laws were violated by council members who voted in the majority, based on prior court decisions and commission opinions.

Was that issue before the commission at this time? Only implicitly. But reporters questions were justified, as were Totto’s answers. Could he have ducked the questions? Sure. But that wouldn’t have been good for the commission, the reporters, or the public.