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Home My WebLink AboutCOM 0343.036 2012-2014 ETHICS COMMISSION • CITY AND COUNTY' OF HONOLULU 715 SOUTH KING STREET.SUITE 211•HONOLULU,HAWAII 96813-3091 TELEPHONE:(808)527-5573•FAX:(8081 527-6936•INTERNET:www.CO.honolulu.hl.us EMAIL:ethics @co.honolulu-hi.us --T, :.. JEREMY HARRIS ' MAYOR ('; CHARLES W.TOTTO I' •�\. rr1� >`-"r:i�. EXECUTIVE DIRECTOR AND LEGAL COUNSEL \ ,. COUNTY CLERK COUNTY OF D 't WAI July 1, 2004 Date 'A CONFIDENTIAL Re: Councilmember Tam's Appearance Before City Department of Planning and Permitting Dear Ms. This is in response to your inquiry regarding Councilmember Rod Tam's appearance at the Department of Planning and Permitting(DPP)hearing to oppose the Lutheran Church of Honolulu(LCH)'s permit application to expand its pre-school facilities. Specifically, you inquired whether Councilmember Tam's testimony at the DPP's public hearing violated city ethics laws. Based on the discussion below, I believe that Councilmember Tam did not violate the City's ethics laws in making his appearance before DPP. I. Facts Last year,.the LCH submitted an application to the city for a conditional use permit(CUP)to expand its existing pre-school facilities. There was some community opposition to the LCH's proposal. In particular, a community association called the • "Poki Community Association"opposed the LCH's proposal. Councilmember Rod Tam also opposed the LCH's proposed expansion. The LCH is located in the Sixth Council District,which is represented by Councilmember Tam. • It appears that Councilmember Tam worked with the Poki Community Association in opposing the LCH's permit application. For instance,he circulated flyers in the community stating his opposition,notifying community members that the Poki Community Association would"testify against the permit,"and encouraging them to submit their written testimony to the Poki Community Association. • • Comm. No. 36 • Ref. To: C. Ref:Date FEB 1 8 2014 July I,2.004 Page 2 • In October 2003, the DPP held a public hearing to consider the LCH's application for the CUP. Councilmember Tam was one of twelve people who spoke against approval of the LCH's application. Councilmember Tam also submitted a letter and a petition opposing the LCH application. The DPP subsequently partially approved the LCH's application for a CUP, subject to certain conditions. II. Discussion The issue presented is whether Councilmember Tam's appearance before the DPP violated city ethics laws. The relevant provision of the Revised Charter of Honolulu(RCH)is Section 11- 102(e),which provides,in pertinent part that"[n]o elected or appointed officer or employee shall . . . [r]epresent private interests in any action or proceeding against the interests of the city or appear in behalf of private interests before any city agency,except as otherwise provided by law. Section 3-8.2(c)of the Revised Ordinances of Honolulu (ROH)contains a similar prohibition.1 The question in this matter is whether the prohibitions of RCH § 11-102(e) and ROH § 3-8.2(c)were intended to completely ban all appearances by councilmembers before city agencies--even appearances in which they take positions on matters of public concern. If so, Councilmember Tam's appearance at the DPP hearing would be in violation of RCH § 11-102(e)and ROH § 3-8.2(c). Sec.3-8.2 Additional standards of conduct. No officer or employee of the city,except as hereinafter provided,shall: (c) Appear in behalf of private interests before any agency other than a court of law, nor shall such person represent private interests in any action or proceeding against the interests of the city in any litigation to which the city is a party;provided,however,that a member of any board,commission or committee may appear in behalf of private interests before agencies other than the board, commission or committee on which such person serves;provided further,that no officer or employee shall be denied the right to appear before any agency to petition for redress of grievances caused by any official act or action affecting such person's personal rights,privileges or property,including real property. This prohibition shall not apply to any architect,landscape architect,surveyor or engineer registered as such under the provisions of HRS Chapter 464,who is a city employee or officer,with respect to the affixing by such registered professional of such person's registered stamp to any plans, specifications, drawings, etc., to be submitted to the city for permits for such person's principal residence or that of members of such person's immediate family; provided, that the stamp is accompanied by a signed statement that the work was prepared by the person stamping the document or under such person's supervision;and provided further,that the registered professional may not,in the capacity of a city employee or officer, review, approve or otherwise act upon the plans, specifications,drawings,etc.,such person has stamped.For the purposes of this section,"immediate family"means the employee's or officer's spouse, siblings,children or parents;spouse's children or parents;or children's spouses. July 1,2004 Page 3 It is my conclusion that RCH§ 11-102(e)and ROH § 3-8.2(c)were not intended to prohibit councilmembers from appearing before city agencies to voice their positions on matters of public concern. It is also my conclusion that the Ethics Commission(the "Commission")would likely agree. One of the primary functions of a councilmember is to represent constituent interests and to take positions on matters of community interest. A complete prohibition against councilmembers appearing before city agencies to represent constituent concerns and to comment on matters of interest to the community would interfere with those core functions. It would also potentially infringe on the constitutional rights of councilmembers and their constituents. Accordingly,it is my conclusion that, in applying RCH§ 11-102(e)and ROH § 3- 8.2(c),the Commission would draw a distinction between appearances by councilmembers that involve the legitimate representation of constituent interests and those appearances that have no connection to a councilmember's representational role. In other words,the Commission would likely carve out an exception that provides that appearances by councilmembers before city agencies are not in violation of RCH § 11- 102(e)and ROH § 3-8.2(c)if the appearances relate to matters of public concern. If the appearance relates to a personal or private matter,such as Councilmember Tam's activity as a permit expediter,the appearance is prohibited. In this case,the subject matter of the DPP hearing and CounciImember Tam's testimony concerned the effects on the community if the LCH's CUP application were approved. Councilmember Tam testified that the expansion of the LCH's pre-school facilities would alter the primarily residential nature of the neighborhood and would worsen neighborhood traffic and noise problems. Even though reasonable people might disagree about the validity of Councilmember Tam's testimony,it nevertheless clearly addressed matters of community interest. It was therefore permissible under RCH § 11- 102(e) and ROH § 3-8.2(c). I hope this response satisfies your questions. If,however, you wish to request a formal advisory opinion from the Commission you may do so,but your request must be in writing. Of course, should you have any questions regarding this matter,please contact me. Sincer y, CHARLES W. TOTTO Executive Director and Legal Counsel •