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ADVISORY OPINION NO. 122

 

An employee of the Honolulu Police Department requested a review of the decision of the Chief of Police who disapproved his off-duty activities as a licensing examiner [examiner] and motor vehicle safety inspector [inspector].

 

The Ethics Commission [Commission] affirmed the decision of the Chief of Police as a result of a preliminary hearing where the following facts were found to be relevant in the case:

 

1.             The police officer's primary duty was to supervise police officers on motorcycles whose function was to expedite traffic and to provide motorcycle escorts for funeral processions and VIP motorcades; to instruct other police officers; and to enforce all State laws and City ordinances by apprehending and issuing citations to violators;

 

2.             The Chief of Police denied the officer's request to engage in the following off-duty activities:

 

a.             examination, in his capacity as a licensing examiner of applicants seeking to qualify as drivers of heavy commercial vehicles ("commercial vehicles"), and

 

b.             contracting his services as a motor vehicle safety inspector under the jurisdiction of a public agency, primarily for commercial vehicles;

 

3.             As a part-time City examiner, the officer would be paid  (amount) for each examinee, and as an inspector, he would be compensated by the owner of an inspection station;

 

4.             As a police officer he is required to enforce all State laws and City ordinances violated by any examinee or any owner of a vehicle [owner] or fleet of commercial vehicles [fleet owner] inspected by him;

 

5.             Section 286-22, HRS,[1] prescribes the duties of a police officer in connection with the vehicular inspection program;

 

6.             Section 286-108.5(e), HRS,[2] provides that the county is to employ either a full-time or part-time examiner; and

 

7.             The State Director of Transportation, as the State Safety Coordinator, has a list of part-time examiners from which an examinee or a fleet owner may select an examiner to examine such examinee or a driver of a fleet owner's commercial vehicles. 

 

Under the foregoing facts, the applicable standards of conduct are:

 

1.             Section 11-102.3, RCH, relating to incompatibility. That section provides that no officer or employee shall:

 

Engage in any business transaction or activity or have a financial interest, direct or indirect, which is incompatible with the proper discharge of his official duties or which may tend to impair his independence of judgment in the performance of his official duties.

 

2.             Section 11-102.4, RCH, relating to compensation. That section provides that no officer or employee shall:

 

Receive any compensation for his services as an officer or employee of the city from any source other than the city, except as otherwise provided by this charter or by ordinance.

 

3.             Section 11-104, RCH, relating to fair and equal treatment.  That section states that:

 

No elected or appointed officer or employee shall use his official position to secure or grant special consideration, treatment, advantage, privilege or exemption to himself or any person beyond that which is available to every other person.

 

At the outset, before Section 11-102.3, RCH, is applicable in the officer's case, it must be determined whether or not he would have a financial interest as an examiner or inspector.  Financial interest is defined in pertinent part in Section 6-1.1(6)(C), ROH, as "an employment."  Based on the provisions of Section 286-108.5(e), HRS, he would be employed by the City as a part-time examiner.  As an inspector, he would be employed part-time as an owner of an inspection station because Section 286-211, HRS,[3] provides that testing stations shall have competent personnel.  Thus, the Commission concludes that he would have a financial interest as an examiner and inspector.

 

The police officer's off-duty activities as an examiner and inspector would conflict with his duties as a police officer.  The following definition of conflict of interest found in 73 Michigan Law Review 758 (1975), supports a finding of a conflict of interest:

 

A 'conflict of interest' may be defined as any circumstance in which the personal interest of a public official in a matter before him in his official capacity may prevent or appear to prevent him from making an unbiased decision with respect to the matter .

 

In this case, the application of the foregoing definition is illustrated by the diagram in Appendix D, which is attached hereto for examination.  Note that the three blocks are connected with solid lines.  Whenever the line from the two upper blocks converges upon a single lower block, it generally signifies the existence of a conflict of interest or an appearance of a conflict of interest.  For example, the officer's desire to maintain the patronage of examinees, owners, and fleet owners would conflict or present an appearance of a conflict with his duty as a police officer to enforce State laws and City ordinances violated by an examinee, owner, or fleet owner whose patronage would be important to him in his role as an examiner and/or inspector.  The foregoing definition and illustration support the applicability of Section 11-102.3, RCH.  Thus, it is the Commission's opinion that his off-duty activities as an examiner and inspector would be incompatible with the proper discharge of his duties as a police officer or might impair his independence of judgment as a police officer.

 

Perhaps the following scenario may further clarify the possible consequences of his off-duty activities as an examiner and inspector:

 

1.             This scenario involves the issuance of a traffic citation to one of the officer's examinees for a traffic violation.  The employee and his fellow officers are assigned to escort a funeral from Mortuary A to Cemetery Y.  As he approaches an intersection controlled by electronic traffic control signals, he sees a semi-trailer blocking the intersection so that the traffic heading towards Cemetery Y is blocked.  As he approaches the vehicle, he recognizes the driver as one of his examinees.  From the logo painted on the door of the vehicle, he knows who owns the vehicle.  The owner has a fleet of heavy commercial vehicles and he has been selected as an examiner of any driver employed by the owner.  In this scenario, does the potential loss of his fee income as an examiner prevent or appear to prevent him from issuing a citation?  Such scenario can be repeated depending upon the number of examinees he might have and the number of fleet owners who retain him as examiner of their vehicles.

 

2.             The second scenario involves a fleet owner for whom the police officer is the principal examiner of his drivers and inspector of his vehicles.  He is escorting a funeral. He has stopped traffic by hand signals at the intersection to let the funeral procession proceed through the intersection.  However, from the opposite direction, a vehicle proceeds into and through the intersection, ignoring his signal.  When the driver of the vehicle ignored his signal, he nearly caused a collision with a vehicle in the funeral procession.  The officer mounts his motorcycle and gives chase.  As he pursues the violator, he notices that the vehicle is weaving.  After stopping the driver, he recognizes him as the fleet owner for whom he is principal examiner of his drivers.  In this scenario, does he give the owner a field sobriety test to determine whether he is drunk and arrest him, or would the possible loss of fees as an examiner prevent or appear to prevent him from making an arrest?

 

The foregoing scenarios are also applicable to the officer's off-duty activities as an inspector.  That is, an owner of an inspection station or the fleet owner of the vehicles he inspects can be substituted for the principals mentioned in the foregoing scenarios.

 

3.             Another aspect of the officer's off-duty activities as an examiner and inspector is that an examinee, or a fleet owner, or owner of a testing station may select him to be an examiner or inspector so that he will be beholden to them financially and they may take advantage of his position as a police officer.

 

Very often, when an officer or employee has a financial or business interest, such interest may result in the use of City time, equipment, or materials.  If so, such use would be contrary to the provisions of Section 11-102.3, RCH.  Although such prohibition is not expressly stated, it is implied because such use is incompatible with the proper discharge of the officer's or employee's official duties, or may impair his independence of judgment.

 

A scenario which is illustrative regarding the use of City time would be when the officer is on duty and uses a public telephone to contact an owner of a fleet of heavy commercial vehicles inquiring whether he has any operators whom he can examine during his off-duty hours.  This scenario may also involve City equipment if he uses his motorcycle, which is furnished by the City, to reach the fleet owner as mentioned before.  He may consider such activities minor, but they become major whenever such use of City time and equipment becomes frequent.

 

Section 11-102.4, RCH, may prevent the officer from receiving any fee for inspecting a vehicle because under Section 286-22, HRS, he is required to inspect vehicles as a police officer.  In other words, he cannot receive any fee for inspection of a vehicle because such inspection is prescribed by law under Section 286-22, HRS.   Section 11-102.4 in essence states that no officer or employee may receive any compensation except from the City for any work which is required of him as an employee of the City.  Therefore, the Commission concludes that if he receives any fees for inspecting a vehicle while off-duty, he may be violating Section 11-102.4, RCH.

 

Section 11-104, RCH, relating to fair and equal treatment, may be breached if the police officer practices selective enforcement of State laws or City ordinances.  That is, if he enforces State laws and City ordinances against any violator who is not his economic benefactor, he is practicing selective enforcement.  In short, as a police officer, he cannot be biased in the enforcement of State laws and City ordinances against any person of the City.  Moreover, the Commission is unable to find any exception as prescribed in Section 11-102.4, RCH, in the Revised Charter of 1973.  Further, any payment he receives as an inspector may be contrary to Section 76-106, HRS.  That section in essence states that no officer or employee shall engage in outside employment which is incompatible with his official duties.  Consequently, if he is authorized to be an inspector and receive payment therefrom, his outside employment may be deemed inconsistent because by statute he has a duty to inspect vehicles.

 

The police officer may question the use of conjectural words, language, or scenarios in the application of a standard of conduct.  Such practice is the rule rather than an exception whenever a standard of conduct is applied.  Words such as "appear," "could," and "may" permeate the application of standards of conduct.  For example, in the above quoted definition of conflict of interest, the word "appear" is used in the phrase,". . . or appear to prevent an unbiased decision."  [Emphasis added] The word "could" was used in People ex.rel. Ullrjch v. Bell, 24 NYSR 114.  In that case, the court upheld dismissal of a policeman who was engaged in selling cigars at wholesale to retail outlets.  The court stated that:

 

[A]n evil minded policeman, if permitted to peddle, could coerce storekeepers to buy goods under fear of arrest for some technical violation of the law.

 

Also, when Section 11-102.3, RCH, is examined, the words "may tend" are found in the phrase, ". . . or may tend to impair . . . . [Emphasis added].  Moreover, the reason for using conjectural words, language, and scenarios is to nip any potential conflict of interest this Commission may foresee.  The issuance of advisory opinions, which reflect reasoned and objective analyses of an officer's or employee's business or financial interests in relation to his official duties, is another means to express the concerns of this Commission.  The foregoing means and method of analysis of a situation assist the Ethics Commission in attaining the primary purpose for the enactment of the standard of conduct provisions.  That purpose is to attain and enhance the confidence of the public in City government.  [See Sec. 11-101, RCH.]

 

Furthermore, the foregoing scenarios and statements are not intended to impugn the officer's character and integrity, but are necessary tools in attaining the objective prescribed for the Commission under Section 11-101, RCH.  The Commission wishes to explain when certain standards of conduct become applicable and to illustrate situations so that their application is understood.  All efforts of the officers and employees of the City are focused on the maintenance of the confidence of the public in City government.

 

To summarize, the Commission concludes that the police officer's off-duty activities as an examiner and inspector may be contrary to the provisions of Section 11-102.3, RCH, relating to incompatibility, Section 11-102.4, RCH, relating to compensation as a City employee, and Section 11-104, RCH, relating to fair and equal treatment.  Section 11-102.3, RCH, applies because his activities as an examiner and inspector would be incompatible with the proper discharge of his duties as a police officer, or might tend to impair his independence of judgment as a police officer.  That is, the economic considerations as an examiner and inspector might prevent or appear to prevent him from enforcing all laws as he is required to do.  As to the applicability of Section 11-102.4, RCH, it is based on Section 286-22, HRS. Section 286-22, HRS, provides that a police officer has the duty to inspect any vehicle, if he believes that it has a defect and should not be on public streets or highways.  In short, he has a statutory duty as an inspector.  As such, he cannot be compensated from any other source when the work is one of the duties assigned to him.  Furthermore, there are no exceptions in the Revised Charter permitting him to receive compensation as an inspector and remain as a police officer.  Section 11-104, RCH, is applicable when he practices selective enforcement of State laws and City ordinances based on whether or not the alleged violator is an examinee, owner or fleet owner.  Also, if he should use City time, equipment or material in connection with off-duty activities such as an examiner or inspector, such practice might constitute a violation of Section 11-102.3, RCH.  Such restrictions are" not specifically mentioned in Section 11-102.3, RCH, but they are implied because any use of City time, equipment or materials on behalf of his personal financial interests indicates that his financial interests are his primary concern, rather than his duties as a police officer.

 

The Commission reiterates that the statements, conclusions, opinions, and scenarios in this opinion are not meant to impugn the officer's character and integrity.  The Commission is attempting to explain when certain standards of conduct become applicable, and has illustrated situations in order that the officer will understand their application.  These efforts are focused on the maintenance of the confidence of the public in City government.  The Commission therefore concurs with the decision of the Chief of Police in denying the police officer's request to be an examiner and inspector.

 

Date: July 8, 1983

 

MAZEPPA K. COSTA

Chair, Ethics Commission

 

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ARTICLE XI*

 

STANDARDS OF CONDUCT

 

Section 11-102. Conflicts of Interest -No elected or appointed officer or employee shall:

 

1.             Solicit or accept any gift, directly or indirectly, whether in the form of money, loan, gratuity, favor, service, thing or promise, or in any other form, under circumstances in which it can reasonably be inferred that the gift is intended to influence him in the performance of his official duties.  Nothing herein shall preclude the solicitation or acceptance of lawful contributions for election campaigns.

 

3.             Engage in any business transaction or activity or have a financial interest, direct or indirect, which is incompatible with the proper discharge of his official duties or which may tend to impair his independence of judgment in the performance of his official duties.

 

Article 1. Additional Standards of Conduct.**

 

Sec.61.2.     Additional Standards of Conduct.

 

No officer or employee of the City, except as hereinafter provided, shall:

 

(2)             Acquire financial interest in business enterprises which he has reason to believe may be directly involved in official action to be taken by him.

 

APPENDIX A

 

*Revised Charter of Honolulu, 1979 Supplement.

**Revised Ordinances of Honolulu. 1980 Cumulative Supplement

 

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ARTICLE XI*

 

STANDARDS OF CONDUCT

 

Section 11-102. Conflicts of Interest No elected or appointed Officer or employee shall:

 

2.             Disclose confidential information gained by reason of his office or position or use such information for the personal gain or benefit of anyone.

 

4.             Receive any compensation for his services as an officer or employee of the City from any source other than the City, except as otherwise provided by this charter or by ordinance.

 

5.             Represent private interests in any action or proceeding against the interests of the City or appear in behalf of private interests before any agency except as otherwise provided by law.  Section 11-104. Fair and Equal Treatment No elected or appointed officer or employee shall use his official position to secure or grant special consideration, treatment, advantage, privilege or exemption to himself or any person beyond that which is available to every other person.

 

*Revised Charter of Honolulu. 1979 Supplement.

 

APPENDIX B

Page 1

 

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ARTICLE I.

 

ADDITIONAL STANDARDS OF CONDUCT*.

 

Sec. 61.2.            Additional Standards of Conduct.

 

No officer or employee of the City, except as hereinafter provided, shall:

 

(1)             Participate, as an agent or representative of a City agency, in any official action directly affecting a business or matter in which (A) he has a substantial financial interest; or (B) by or for which a firm of which he is a member, an associate, or an employee has been engaged as a legal counselor advisor or consultant or representative in a matter directly related to such action; provided that a councilman is not precluded from voting on such matter before the Council so long as a written disclosure has been made in the event there is a conflict of interest involving this subsection and relating to such matter.

 

(3)             Appear in behalf of private interests before any agency other than a court of law, nor shall he 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, whose board, commission or committee does not exercise either quasi-judicial or quasi-legislative power, may appear for compensation in behalf of private interests before agencies other than the one on which he serves and other than those agencies that have the power to review the actions of the agency on which he serves, or to act on the same subject matter as the agency on which he 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 his personal rights, privileges or property, including real property.

 

(4)             Accept a retainer, compensation, or election campaign contribution that is contingent upon action by an agency.

 

(5)             Enter into any contract in behalf of the City with an officer or employee or with a business in which an officer or employee has a controlling or substantial financial interest, involving the furnishing of services, materials, supplies, and equipment unless the contract is made after competitive bidding; provided that this paragraph shall not apply to personal contracts of employment with the executive branch of the City as prescribed in subsections (g) and (h) of Section 6-303 of the Revised Charter or equivalent contracts with the legislative branch of the City as prescribed in subsection (f) of Section 6-304 of the Revised

Charter.

 

(6)             Order any person to violate, or aid or abet any person in the violation of, the provisions of Section 6-312.2 of the Revised Charter of the City, relating to prohibition on political activities of persons in the civil service. (Sec. 7-15.2, R.O.1969; Am. Ord. 4130)

 

*Revised Ordinance of Honolulu. 1980 Cumulative Supplement.

 

APPENDIX B

Page 2

 

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APPENDIX C

 

[Sec. 286-211] Permits to operate official inspection stations. (a) The director shall issue permits for and furnish instructions and all forms to official inspection stations.  The stations shall operate pursuant to standards established by the director.

 

(b)             Applications for an official inspection station permit shall be made upon an official form and shall be granted only when the director is satisfied that the station is properly equipped and has competent personnel to make the required inspections.  Before issuing a permit, the director shall require the applicant to file proof that he has, in effect, a liability insurance policy, issued to him by an insurance company, authorized to do business in the State, insuring against the liability of the applicant and any of his employees, in minimum amounts as follows: comprehensive public liability insurance in the amount of $10,000 for one person and $20,000 for one accident and comprehensive property damage insurance of $5,000, provided that the director may, by rules and regulations, set higher limits; provided that the proof of insurance need not be filed by an applicant who inspects only vehicles owned by the applicant; and provided further that the proof of insurance need not be filed by instrumentalities of the United States. 

 

(c)             A permit for an official inspection station shall not be assigned or transferred or used at any location other than that designated by the director and every permit shall be posted in a conspicuous place at the location so designated.

[L Sp 1977 1st, c 20 pt of Sec. 1]

 

APPENDIX C

 

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[DIAGRAM OF CONFLICT OF INTEREST]

 

 

APPENDIX D

 



[1] See full text of this section, found in Appendix A.

[2] See full text of this section, found in Appendix B.

            [3] See full text of this Section, Appendix C.

Last Reviewed: Wednesday, August 04, 2004