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ADVISORY OPINION NO. 167

This advisory opinion is in response to a request to determine whether the senior advisor to a councilmember may work as a volunteer associate director and paid secretary of a State agency concerned with land use issues [District X] without violating, or appearing to violate, the City's standards of conduct.

The Ethics Commission [Commission] believes that the senior advisor should resign his positions with District X because retaining them would create the appearance of conflicts of interest.

The Commission understands the facts to be as follows:

As a member of the City Council, the councilmember for whom the senior advisor works represents Council District Y, which does not include the District X. The councilmember's duties include voting on matters concerning land use, including the area under the jurisdiction of the State's District X. At this time, the councilmember is considering whether or not to introduce a bill requiring further differentiation between the State's soil and water conservation districts.

The senior advisor's duties include advising the councilmember regarding most of the work with which the councilmember is involved, including the bill concerning the State's districts. In addition, the senior advisor is also one of three volunteer associate directors of District X, organized pursuant to Chapter 180, Hawaii Revised Statutes [HRS].

A district is a subdivision of the State that is administratively attached to the Department of Land and Natural Resources. Each district has five directors, which occupiers of land in the district elect. Each district also has the authority to provide occupiers of land with financial aid, to acquire property, to construct structures, to sue, and to require land occupiers to contribute to a district's programs when the district's directors deem such programs benefit the land occupied.

As a part-time associate director, the senior advisor holds an unofficial position for individuals who work with members of District Council X but do not vote. His duties include advising the members of District Council X on matters regarding land use. As a part-time paid secretary for District Council X, he keeps minutes and writes letters for the president to sign.

Two situations arise in the normal course of business for the City Council and the districts. These situations are:

l. Four times a year farmers may ask the District Council for a release from grading requirements, which are also within the purview of the City.

2. Once each year the City and federal governments request the districts' approval of plans for disbursing federal funds.

The threshold question is whether a full-time City employee may also hold part-time positions with the State.

A full-time City employee may have part-time employment with the State, provided that the City and State positions are not inconsistent or incompatible. Section 13-119, Revised Charter of Honolulu 1973 (1984 Ed.) [RCH] states:

No person shall hold more than one public office or position under the city or hold such office or position while holding any other office or position in or under the government of the United States or of the State, but nothing herein shall preclude the holding of an ex officio office or part-time employment with a State or federal agency . . . unless such service . . . would be inconsistent or incompatible with or would tend to interfere with the duties and responsibilities of the other office, employment or position held by the office or employee. [Emphasis added]

The section above anticipates the ethical question of whether a City employee's State employment as an associate director or as paid secretary of a State agency concerned with land use issues is inconsistent or incompatible with or would tend to interfere with his duties as the senior advisor to a councilmember.

This question follows from the rule stated in Section 11-102.3, RCH:

No elected or appointed officer or employee shall . . . [e]ngage in any business transaction or activity or have a financial interest, direct or indirect, which is incompatible with the proper discharge of such person's official duties or which may tend to impair the independence of judgment in the performance of such person's official duties.

Although a City employee like the senior advisor may have part-time employment with the State under Section 13.119, RCH, cited above, the Commission believes retaining his State positions while employed full-time by the City as a senior advisor creates the appearance of conflicts of interest. In general, such conflicts arise because the districts and the City Council have within their purview issues concerning land use, a controversial subject because the land available is finite. Specifically, such conflicts arise because the jurisdiction of the districts and the City Council intersect 1) four times a year when farmers in the State's districts may request release from grading requirements, and 2) once each year when the City and federal governments request the district councils' approval of plans for the disbursement of federal funds. In addition, if the councilmember decides to introduce a bill requiring further differentiation between the State's districts, the public may view his action as prompted by the advice of one of District X's associate directors, the councilmember's senior aide. Similarly, the senior aide should resign as District X's secretary because a paid secretary may also appear to continue as an associate director where the secretary held both positions concurrently and where the position of associate director is an unofficial one. For these reasons, the Commission believes the senior advisor should resign his positions with District X in order to avoid the appearance of conflicts of interest.

The Commission commends the councilmember and his senior aide for their sensitivity to the issues present in this opinion and for their cooperation in this matter, including the senior aide's candid responses to the Commission's questions.

Date: March 23, 1987

JANE B. FELLMETH
Chair, Ethics Commission

Last Reviewed: Tuesday, January 03, 2012