HomeMy WebLinkAbout2006-10-06 Campaigning For a Candidate for the Council Lincoln S.T. Ashida
r Corporation Counsel
Harry Kim bW
Mayor •� •' Gerald Takase
• Assistant Corporation
•'''� "•'�•�� Counsel
,t�Of•Mf'•l
COUNTY OF HAWAII
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 325 • Hilo,Hawaii 96720-4262 • (808)961-8251 • Fax(808)961-8622
October 6, 2006
Sent via email; hard copy only to Council Chair
Honorable K. Angel Pilago
Council Member, District 8
Hawaii County Council
25 Aupuni St.
Hilo, HI 96720
Dear Councilman Pilago:
RE: Your request for a legal opinion concerning campaigning for
a candidate for the Hawaii County Council
On September 25, 2006, your office contacted the Corporation Counsel
via email and asked (1) whether an elected official could publicly support a
candidate, and if so, what the legal parameters are , (2) how can the support be
expressed (newspaper, radio, official statement, etc.), and (3) whether there
were any topics that cannot be discussed in such an endorsement.
The email communication from your office indicated you had initially
sought the assistance of the State Ethics Commission, but were referred to the
County of Hawaii Office of the Corporation Counsel.
In responding to these three questions, our office opined as follows
(responding in sequential order to the questions posed above):
1. If the County elected official utilizes his own funds and time, it should
generally not be a problem, subject to the limitations and caveat listed
below. It's no different than separating your political activity for your
own campaign from your County work. However, this is something
easily said but not easily done, so extreme caution should be
deployed.
2. Whatever way you feel appropriate. However, it is important to
consider not using your title as "Councilman...." If an ad says,
"Councilman Angel Pilago supports Candidate X," that may arguably
be a violation of the Ethics Code, section 2-83, in utilizing your official
position to secure an advantage for a third person. The argument that
Hawaii County is an Equal Opportunity Employer and Provider
Honorable K. Angel Pilago
October 6, 2006
Page 2
goes, "Well, I just said I was Angel Pilago, and not Councilman Angel
Pilago" is of limited persuasion, since people generally do not
differentiate between the two. Note that I am not saying it is a
violation, but that someone may be able to make this claim. If you are
not sure, you should ask the Ethics Board for an opinion. There is a
vast difference between campaigning for you versus campaigning for
others. Our Code appears much more forgiving if you are doing this
on your own behalf and for your own cause.
3. Yes. Utilizing information obtained during privileged discussions that
are not in the public domain may result in negative consequences for
the County as well as alienation by your fellow Council members.
On October 5, 2006, your office then sought the assistance of Deputy
Corporation Counsel Bobby Jean Leithead-Todd, an attorney with this office,
again asking about "the ethical appropriateness" of sample advertisements
described as follows:
Example #1: Photo of council member (sic) Pilago and council candidate
he supports. Caption: "As a resident of Kona, I support (name of council
candidate)."
Example #2: Photo of council member (sic) Pilago and council candidate
he supports. Caption: "I'm a resident, I care for Kona, I endorse (name of
council candidate)."
In response to your email, our office provided you the following
supplemental guidance on October 5, 2006:'
The County Board of Ethics is charged with issuing informal advisory
opinions on matters concerning our Ethics Code, and not the attorneys in
our office. If you ask an attorney from our office whether a particular ad
violates our Ethics Code, what you essentially get is our best estimate of
what the Board may conclude. So, you should know that our opinions or
recommendations may not be conclusive with respect to the ultimate
question of whether something violates the Ethics Code.
Your office was also provided a copy of a blank petition for the Board of
Ethics, but was advised that due to the late nature of this inquiry, it was unlikely
the Board would have the time to issue an informal advisory opinion by the
General Election date.
Your office then responded as follows:
In that case Lincoln, we await corporation counsel (sic) Leithead-Todd's
best estimate of what the Board of Ethics may conclude.
To date, all communication on this issue have been between Councilman Pilago's office and
Corporation Counsel Lincoln Ashida, as Ms. Leithead-Todd has been out of the office.
Honorable K. Angel Pilago
October 6, 2006
Page 3
Given the fact Deputy Corporation Counsel Leithead-Todd remains off-
island until Monday, October 9, 2006, given the time-sensitivity of this matter,
and given the fact Deputy Corporation Counsel Leithead-Todd represents the
Board of Ethics (thus it may not be appropriate for her to render any opinions to
you on this particular question, since this may place her in conflict with respect to
her continued representation of the Board) we thought it prudent to promptly
respond to your inquiry. We hope our guidance is of assistance to you.
The County of Hawai'i Board of Ethics
A very important point that warrants repeating here is that it is the County
of Hawaii Board of Ethics, and not attorneys from our office, that issue informal
advisory opinions and interpret our Code of Ethics. Although our attorneys do
provide legal support and address legal matters that confront the board, the
ultimate responsibility for interpreting the Code lies with the Board. Recent
history has shown the Board has executed this duty very diligently and
responsibly, devoid of any outside influence. In sum, they have shown very
independent thinking in representing the collective morality of our community.
We wish to reiterate this important point since we did not want to lead you
to believe our opinions would be conclusively accepted and adopted by the
Board. As with all boards and commissions in our County, our role is simply to
provide legal support.
Hawaii County Code of Ethics
The salient provision of our County Code of Ethics may be found at
Chapter 2, Section 2-83(b), Hawaii County Code 1983 (2005 ed.) (hereinafter
"Code"). That provision provides as follows:
No officer or employee shall use or attempt to use the officer's or employee's
official position to secure or grant unwarranted privileges, exemptions,
advantages, contracts, or treatment, for oneself or others; including but not limited
to the following:
(1) Seeking other employment or contract for services for oneself by the use or
attempted use of the officer's or employee's office or position.
(2) Accepting, receiving, or soliciting compensation or other consideration for the
performance of the officer's or employee's official duties or responsibilities
except as provided by law.
(3) Using County time, equipment or other facilities for private business or
campaign purposes.
(4) Soliciting, selling, or otherwise engaging in a substantial financial transaction
with a subordinate or a person or business whom the officer or employee inspects
or supervises in the officer's or employee's official capacity.
(5) Using County property or personnel for other than a public activity or purpose.
Honorable K. Angel Pilago
October 6, 2006
Page 4
It is important to note that in interpreting the aforementioned subsection,
the five listed prohibitions are simply some examples of prohibited activity, and
should not be considered an exhaustive list. In other words, there may be other
activities not expressly provided for or described in the Code that the Ethics
Board may nonetheless conclude violates this subsection of our laws.
It is also important to keep in mind that questions concerning whether
there has been a breach of ethics are often fact-specific. In other words, as with
many things in the law, there are no "bright line" answers, and a prudent and
thorough analysis necessarily involves an examination of the facts unique to
each situation.
In the present case, the fact a sitting Council member seeks to publicly
endorse another Council candidate, in our opinion, presents greater concern
regarding the ethical appropriateness of such activity. This situation is markedly
different than a County elected official publicly endorsing or supporting a
candidate for federal office, for example.
We are mindful and respectful of a private individual's right to endorse and
campaign for any candidate he/she so chooses to support. This is where our
Ethics Code seeks to balance the right of an individual against the collective
conscience of our community, as interpreted by our Board of Ethics.
Our research has revealed no Hawaii County Board of Ethics opinions
directly on point. This is not to suggest this type of activity has not taken place
previously in our County. It simply is evidence that no one has brought this
particular issue before the Board of Ethics for formal analysis and the issuance of
an informal advisory opinion.
State Ethics Commission Opinions
Hawaii State Ethics Commission Informal Advisory Opinion No. 22
(August 8, 1980) provides some guidance in this matter. Enclosed is a copy of
this opinion for reference purposes.
In that case, at issue was the use of government stationary and the like by
an elected official in furtherance of the promotion of the candidacy of an
individual for president of an organization.
The State Ethics Commission, in a thoughtful discussion concerning the
sometimes practical inability to differentiate an elected official's position from his
private one, commented as follows:
We emphasized that the Commission did not question the right of an elected
official or of any employee, under the ethics code, to endorse persons seeking
public or private offices, references for employment, acceptance to educational
institutions, or other similar purposes (footnote omitted)' But it was our
Honorable K. Angel Pilago
October 6, 2006
Page 5
interpretation of the ethics code that state stationery and the state seal should not
be used for such purposes. We recognized that some incidental use of state
equipment for private purposes was unavoidable; such use, to the extent that it
was a limited use, would not constitute a violation of the ethics code. We noted,
however, that questions concerning the use of such equipment should be raised
with the Commission in advance.
Our experience told us that there was in the community a concern that some
public officials overused the resources of their offices in carrying on campaign
activities and private business. While the public's perception of such practices
might be an exaggeration of the reality, it was a view that, in our opinion, was
reinforced by the use of state materials and personnel in non-state matters. For
this reason, we were of the opinion that the letter of the law should be adhered to
in this area and would so advise appropriate officials.
This is exactly the same rationale for our earlier informal email opinion to
you, wherein we stated in pertinent part as follows (emphasis supplied):
If the County elected official utilizes his own funds and time, it should
generally not be a problem, subject to the limitations and caveat listed
below. It's no different than separating your political activity for your own
campaign from your County work. However, this is something easily said
but not easily done, so extreme caution should be deployed.
However, it is important to consider not using your title as "Councilman...."
If an ad says, "Councilman Angel Pilago supports Candidate X," that may
arguably be a violation of the Ethics Code, section 2-83, in utilizing your
official position to secure an advantage for a third person. The argument
that goes, "Well, I just said I was Angel Pilago, and not Councilman Angel
Pilago" is of limited persuasion, since people generally do not differentiate
between the two. Note that I am not saying it is a violation, but that
someone may be able to make this claim. If you are not sure, you should
ask the Ethics Board for an opinion. There is a vast difference between
campaigning for you versus campaigning for others. Our Code appears
much more forgiving if you are doing this on your own behalf and for your
own cause.
Conclusion
A plain reading of our Code of Ethics lead us to conclude the public
endorsement by a sitting Council member for a candidate for Council is not
specifically prohibited by the language of the Code.
Although it is difficult in a small community like Hawaii Island to have the
public differentiate a sitting Council member's official position from his personal
one, steps such as not identifying him or herself as a sitting Council member and
the like should be taken.
Honorable K. Angel Pilago
October 6, 2006
Page 6
Finally, we again caution you that others (including members of the public
as well as sitting members of the Board of Ethics) may have a different opinion
as to the interpretation of the prohibitions found in our Code of Ethics. Thus, we
cannot guarantee that (1) your actions will not be challenged and a complaint will
not be brought against you if you proceed, and (2) what the Board of Ethics will
ultimately conclude with respect to any violation of our Ethics Code.
A factor compounding our analysis in the instant case is the fact that this
involves a contested race for a Council seat. In the event the candidate you
endorse is not elected, it may result in alienation and discomfort between you
and the Council member that is ultimately elected. Some members of the public
who have been openly critical of Council activity in the recent past may further
point to such discord as being inconsistent with the overall collective desire of the
Council to unify for the benefit of our entire island community.
In matters related to the Ethics Code, our office generally advises our
clients to take "the high road," and avoid placing themselves in situations that
lead to even the appearance of impropriety. The decision of whether to endorse
a Council candidate belongs to you, and as discussed infra, in our opinion it
would not be prohibited by our Code of Ethics.
Thank you for allowing our office to opine on this matter. If you have any
further questions, please feel free to contact me.
Very truly yours,
LINCOLN S. T. ASHIDA
Corporation Counsel
Encl.
c: Honorable Stacy K. Higa, Council Chair (w/ encl.)
Honorable Virginia Isbell, Council Vice Chair (w/ encl.)
Honorable Fred Holschuh, Council Member (w/ encl.)
Honorable Donald Ikeda, Council Member (w/ encl.)
Honorable James Arakaki, Council Member (w/ encl.)
Honorable Gary Safarik, Council Member (w/ encl.)
Honorable Bob Jacobson, Council Member (w/ encl.)
Honorable Pete Hoffmann, Council Member (w/ encl.)
Honorable Harry Kim, Mayor (w/ encl.)
Corporation Counsel Attorneys (w/ encl.)
S: Departments/Council/LSA Corresp./Letter to A Pilago re campaign endorsements and ads 10-6-06/LSAmr
Informal Adv Opinion 22 Page I of 4
INFORMAL ADVISORY OPINION NO. 22
On May 13, 1980, the Commission received a charge against a member of the
legislature. The charge was filed pursuant to Rule 5.1 of the Commission Rules and
Regulations. Pursuant to HRS §84-31(b), the legislator was afforded an opportunity to present
an explanation of the conduct alleged to be in violation of the law. The legislator took
advantage of this opportunity and appeared at a Commission hearing.
The substance of the charge was that the legislator had violated the State Ethics Code,
particularly HRS §84-13, by using his position in an unwarranted manner to influence members
of a private organization to support an individual in his attempt to win election to the presidency
of the organization. The election was held in May of 1980 at which time the incumbent, the
complainant in this case, was re-elected as president.
It was agreed that the legislator had written a letter to the supporters of the challenger on
state stationery and had identified his position in the legislature. The letter was an
endorsement of the challenger's candidacy for the office of president of the organization. The
letter was duplicated by the challenger and distributed to an undetermined number of
members. As indicated, the result of the election was that the incumbent was re-elected to the
post of president over the challenger.
The pertinent language in the State Ethics Code was contained in HRS §84-13 and provided
as follows:
No legislator ... shall use or attempt to use his official position to secure or grant
unwarranted privileges, exemptions, advantages, contracts, or treatment, for himself or
others; including but not limited to the following:
(3) Using state time, equipment or other facilities for private business purposes.
It was the complainant's contention that the use of legislative stationery, bearing the seal of
the State of Hawaii, the names of the members of the particular branch, and the legislator's
signature and the citation of his particular position in the legislature gave the impression that
the state legislature approved of his endorsement. The legislator contended that he had a
right to endorse qualified people for election to offices and that the use of the legislative
stationery was of no significance. He noted that his identity as a legislator was well-known and
could not be disguised by his avoiding the use of the stationery. He commented further that, in
his view, the use of the stationery containing the state seal and his signature could not
reasonably be expected to influence members of the organization in the way they voted.
Certain past opinions of this Commission were relevant to our decision in this case. In
Informal Advisory Opinion No. 13, the Commission had found that an employee had violated
HRS §84-13 when he asked a secretary to type political solicitation letters and used the state
mailing system to forward those letters to persons who, it was hoped, would provide financial
support for a particular candidate. While the individual was cited as violating the statute, no
sanction was imposed upon the employee other than to require that he reimburse the State for
the cost of his activities.
In Advisory Opinion No. 350, the Commission advised the chairman of a powerful state board
ht+„•//.:,:,.:,ha.vaii nnv/Pthirc/nnininnc/TA(177 NTM 10/6/2006
Informal Adv Opinion 22 Page 2 of 4
that, in endorsing a figure for political office, he not identify his board or his position and that he
consider voluntarily refraining from endorsing candidates because of the sensitive nature of his
position. However, the Commission did not rule that the official could not endorse candidates
for political office.
In a number of other Commission opinions, the Commission has recommended that
influential employees and public officials, including legislators, take steps to isolate the power
of their offices from private negotiations with state officials. For example, in one such case
(Advisory Opinion _No._363), a state legislator sought funding from a state agency for a private
enterprise. A statement was made to the agency that he was seeking the funds as a private
citizen and that his application should be given no deference by the state agency. All
negotiations and all meetings were conducted on the legislator's own time, using all his own
equipment and materials. And, of course, the Commission was advised of his activity and was
thus able to monitor the matter. The Commission found that these activities would not violate
the ethics code and approved of the steps taken to mitigate the influence of legislators.
A review of these decisions indicates a Commission view that political activities and the
private affairs of government officials should be separated, to the extent possible, from their
state offices. The language of HRS §84-13(3) is unambiguous on this point.
We recognize that a philosophical argument lies at the heart of cases such as this
one. There can be no doubt but that state officials have a right to endorse persons for political
as well as private office. The opinions cited recognize this right. It is also clear that public
officials cannot completely divorce themselves from the powers of their offices when they
conduct their private affairs. Nevertheless, it has been the consistent position of this
Commission that certain symbolic steps should be taken to isolate a public official's office from
his or her private endeavors and that the taking of such steps is meaningful and effective. It is
meaningful because it is a statement that the official's office should have no bearing on the
particular interest that is being pursued in a private capacity and that no advantage is being
sought or should be given. While we recognize that an awareness of the official's power and
position cannot be erased from the minds of the people the official is dealing with, the
sensitivity shown does nevertheless promote a positive image of both the official and the
agency he or she represents. It is our experience as commissioners that people are
intimidated and influenced by persons occupying powerful governmental positions. Steps
taken in recognition of this reality may and do help to neutralize the influence of the official as
he carries out his private endeavors.
In this case, the legislator indicated that he was unaware of the uses that the challenger
would make of the letter sent to him. It had been his understanding that the letter would be
read to his supporters but would not be duplicated and distributed. The reading of the letter
alone would not have brought before the supporters the image of the seal and the names of
the other members of the legislature or, necessarily, the signature of the legislator and the
citation of his particular position. The possibility of the legislator's action constituting a violation
of HRS §84-13 would have been mitigated if the letter had been used according to his
expressed intent. Accordingly, the Commission was of the opinion that, while the action was in
violation of HRS §84-13, the violation was an inadvertent one that did not justify further action
by this Commission. We also noted that this issue had not, heretofore, been so explicitly
raised as it was here.
We did, however, hold that legislators and other public officials should avoid the use of state
httn•//www hnwnii anv/ethice/nnininnc/1A022 HTM 10/6/2006
Informal Adv Opinion 22 Page 3 of 4
stationery, facilities, and personnel for the carrying on of private business or political activities
whether on their own or others' behalf. The best practice, one that had been increasingly
adopted by officials in both the private and public sectors, was for employees and elected
officials to maintain a private stock of stationery for use in personal matters. While we
recognized that public officials could not completely hide their identities when they carried on
their private activities, the use of the state seal and the specific identification of the individual's
official public position carried with them a weight that did have influence. In addition, officials
and employees were elected and appointed solely to carry out the business of the public. The
use of the state seal, state stationery, and the designation of the official's actual position in
government in private matters was not consistent with that purpose. The use of private
stationery was a statement that the official was separating him or herself as much as possible
from his public position. We believed, as we had stated in past opinions, that this symbolic
gesture was significant and promoted the standing of government in the eyes of the public.
We emphasized that the Commission did not question the right of an elected official or of any
employee, under the ethics code, to endorse persons seeking public or private offices,
references for employment, acceptance to educational institutions, or other similar
purposes.' But it was our interpretation of the ethics code that state stationery and the state
seal should not be used for such purposes. We recognized that some incidental use of state
equipment for private purposes was unavoidable; such use, to the extent that it was a limited
use, would not constitute a violation of the ethics code. We noted, however, that questions
concerning the use of such equipment should be raised with the Commission in advance.
Our experience told us that there was in the community a concern that some public officials
overused the resources of their offices in carrying on campaign activities and private
business. While the public's perception of such practices might be an exaggeration of the
reality, it was a view that, in our opinion, was reinforced by the use of state materials and
personnel in non-state matters. For this reason, we were of the opinion that the letter of the
law should be adhered to in this area and would so advise appropriate officials.
We appreciated the candor of the legislator's presentation to the Commission. We also
commended the complainant for his initiative in bringing this matter to the Commission's
attention.
Dated: Honolulu, Hawaii, August 8, 1980.
STATE ETHICS COMMISSION
Gary B.K.T. Lee, Chairman
Paul C.T. Loo, Vice Chairman
Dorothy K. Ching, Commissioner
Edith K. Kleinjans, Commissioner
Note: Commissioner Robert N. Mitcham was absent from the meeting at which this opinion
was considered.
Notes
1. The state employee advised us that he accepted the findings and conclusions of this informal advisory opinion
and would comply with its recommendations.
.. 11 _,_ An)) uT'kA 10/6/2006