An ongoing ethics probe that so far has resulted in fines for two former Honolulu City Council members accused of accepting illegal gifts from lobbyists has raised serious questions about corruption in local government, particularly as it relates to a controversial $6 billion commuter rail project.

Despite that, little attention has been paid to those who were doing the courting.

Nestor Garcia, a KHON news reporter who served on the council from 2003 to 2013, agreed last week to pay an $8,100 fine after the Honolulu Ethics Commission found evidence that he accepted free meals and golf from lobbyists in amounts that exceeded city guidelines and failed to report conflicts of interest while voting on measures related to the rail project and other issues associated with it.

His settlement stems from a larger investigation that has already forced state Rep. Romy Cachola to pay a $50,000 fine for similar conduct while he was on the council.

honolulu hale city council mayor caldwell.jpg

A growing ethics scandal at Honolulu Hale could put rail votes at risk.

Cory Lum/Civil Beat

The commission is still looking into allegations that other current and former council members, including Ann Kobayashi, Ikaika Anderson, Donovan Dela Cruz and Todd Apo, also received inappropriate gifts from lobbyists. Dela Cruz is currently a state senator and Apo is the director of public affairs at the Disney Aulani resort in Ko Olina. Kobayashi and Anderson are sitting council members.

But amid the growing scandal — which includes debate about whether key rail votes should be invalidated — the lobbyists have come out relatively unscathed. In fact, there’s been little scrutiny of their actions, and it’s doubtful there will be any punitive action taken to help deter future ethical lapses.

“They’re not breaking the lobbying law,” Honolulu Ethics Commission Executive Director Chuck Totto said. “I know that sounds a little crazy, but that’s because our lobbying law was passed in 1978. It’s very general and it does not prevent giving unlawful gifts.”

The onus is on lawmakers to make sure they don’t violate city statutes that put a $200 annual cap on gifts from a single source. Lobbyists are only required to file a registration form with the Ethics Commission and fill out an annual report that says how much they spent on lobbying, who they worked for and what policies they sought to influence.

Bribery is another matter, Totto said. Anyone caught trying to pay off a city official would be subject to criminal prosecution.

Totto would like to update the ethics code to tighten the reins on lobbyist gift-giving. Totto said he would need to research best practices from around the country to draft a whole new set of regulations. But he also says he doesn’t have the staff to the handle that extra workload.

“Would we like to change? Absolutely,” Totto said. “Do we have the resources? Absolutely not.”

Now the only option he sees is providing ethics training for lobbyists so they don’t unintentionally get lawmakers in trouble by not knowing the rules.

Lobbyists Remain Anonymous

Lobbyists are afforded a pass even when the commission does find wrongdoing. The commission doesn’t publicly release the names of lobbyists when an investigation is completed.

In both the Cachola and Garcia cases, the Ethics Commission withheld the names of lobbyists to encourage openness during the investigations. Even though the commission subpoenaed expense reports from the lobbyists, the commission found that identifying them would have a “chilling effect on witness cooperation for future cases.”

Totto says this is important to ensure that lobbyists cooperate with commission investigations without fear of reprisal from the people they get paid to influence.

State Representative Romy Cachola2. 14 april 2015. photograph by Cory Lum/Civil Beat

State Rep. Romy Cachola’s $50,000 city ethics fine is a record for Honolulu.

Cory Lum/Civil Beat

But Cachola helped shine a light on the shadowy lobbying world when he got caught accepting dozens of unlawful gifts over a six-year span from lobbyists who had business before the city. The former councilman said he wasn’t alone, and he pointed the finger at several of his colleagues who he said had accepted perks from lobbyists.

Cachola named names, too. He said he accepted gifts from representatives of James Campbell Co., its development arm, Aina Nui Corp., and the Pacific Resource Partnership, a labor group that spent millions of dollars to help pro-rail candidates get elected, most notably Honolulu Mayor Kirk Caldwell.

The lobbyists Cachola outed included Mike Kido, David Rae, Steve Kelly and Cameron Nekota. According to documents provided by Cachola, they spent nearly $10,000 wining and dining council members and their spouses from 2006 to 2012.

‘Far-Ranging Implications’

So what did all the lavish meals and free rounds of golf buy? At this point it’s still unclear. Totto and Cachola’s attorney, Michael Green, say that it should invalidate council members’ votes if they did not follow proper ethical guidelines.

This could create a bureaucratic nightmare, particularly regarding rail project decisions if there were enough questionable votes to sway a major decision. And with an ongoing investigation into Kobayashi, Anderson, Dela Cruz and Apo, this might be a possibility. Even if previous votes were overturned, however, the current council might be asked to ratify those decisions.

Honolulu’s top municipal attorney, Donna Leong, has yet to issue an opinion on the matter, and said she wants to get more information from Totto about the facts of the two cases. She also said in a written statement that the Ethics Commission “does not have the authority” to nullify votes based on violations of ethical conduct.

Leong added that “such an assertion, which has far-ranging implications, should not be made lightly or without consideration of the proven facts and circumstances of the entire case.”

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