Ethics Commission clamps down on director who says rail votes might be thrown out

HONOLULU (HawaiiNewsNow) - The debate over whether votes by four Honolulu City Council members who voted in favor of rail transit should be nullified because of ethics violations heated up Wednesday, as Chuck Totto, head of the city Ethics Commission came under fire from his bosses for talking about the subject. Commissioners Thursday also partially muzzled Totto from talking to reporters with a strict new media policy.

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.

There's even more at stake since last month, former Councilman Nestor Garcia, paid an $8,100 fine for similar ethics violations. So now four pro-rail council members could face having their votes thrown out. Current Councilman Ikaika Anderson and former Councilman Todd Apo, both transit supporters, are under investigation by the Ethics Commission for accepting meals and other gifts in excess of the $200 limit and not disclosing them.

The city's top civil lawyer, Corporation Counsel Donna Leong, works for Mayor Kirk Caldwell, a strong rail supporter.

She's told commissioners the Ethics Commission does not have the authority to nullify a council member's vote, but she wouldn't tell them in public whether she thinks the votes should be thrown out.

"I would be happy to set this legal analysis, as the chief legal advisor to the city, in an attorney-client privileged memorandum to the commission," Leong said before the commission.

She declined to answer Hawaii News Now's questions about whether she's working on a decision about whether the council members' votes will be nullified, citing attorney-client privilege.

Partly because of this controversy, commissioners voted Wednesday to approve a strict media policy that bars Totto from interpreting or commenting on ethics decisions to reporters.

Ethics Commission Chair Katy Chen, an attorney who's an executive at Goodwill Industries, said she felt that restriction "went too far." Chen was the lone commissioner who voted against the new media policy, which was approved by five other commissioners.

The policy said when media statements are required of Totto immediately, he will respond after consulting with the commission's chair, vice chair or another commissioner who's been designated to handle those consultations.

Attorney Michael Green, who represented Cachola in the ethics case, said Wednesday, "The Hawaii Supreme Court says in that situation of conflict, if the conflict is not announced, the vote is void. So they never had a majority of votes for the rail. Never."

Green said since at least two and potentially four rail supporters' votes should be nullified, the nine-member council never had the five required votes for rail.

"I think the most they ever had was three, three valid votes on any particular legislation for the rail," Green said.

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