February 15, 2006
Mr. Charles W. Totto
Executive Director/Legal Counsel
715 South King Street, Suite 211
Honolulu, Hawai'i 96813-3091
Dear Mr. Totto,
This formal ethics complaint is being filed by fishermen, boaters, and
community members, and EnviroWatch, Inc. (“Complainants”). This complaint
involves Article XI, Standards of Conduct, Revised Charter of the City
and County of Honolulu, 1973, 2000 Edition (“Charter”), and Article 8,
Additional Standards of Conduct, Revised Ordinances of Honolulu, 1990 (“ROH”).
Section 11-101, Declaration of Policy, Standards of Conduct, states:
“Elected and appointed officers and employees shall demonstrate by their
example the highest standards of ethical conduct, to the end that the public
may justifiably have trust and confidence in the integrity of government.
They, as agents of public purpose, shall hold theiroffice positions for the
benefit of the public, shall recognize that the public interest is their
primary concern, and shall faithfully discharge the duties of their office
regardless of personal considerations.”
We believe that Councilmember Apo’s conduct has violated the standards
codified in Section 11-101. Therefore, in support of this formal complaint,
Complainants submit the following:
1. On Thursday, January 6, 2006, City Councilmember Todd Apo appeared
before the State of Hawaii Land Use Commission (LUC) in a public hearing
at Leiopapa A Kamehameha, Conference Room, 235 S. Beretania Street,
Honolulu, Hawaii on the matter of Agenda Item A83-562, West Beach Estates.
Councilmember Apo appeared on behalf of Petitioner Ko Olina. This meeting
convened at 8:40 a.m.
As reflected on page 12 of the official transcript of the hearing,
Councilmember Apo formally introduced himself, in a general Introduction,
to the Commission, by stating: “Good morning, Chair and Commissioners,
Todd Apo with Ko Olina Resort and Marina.” Then, when the Commission began
to address Agenda Item A83-562, as reflected on page 14 of the official
transcript of the hearing, Councilmember Apo addressed Chairperson Sakumoto
by stating: ”Good morning again and thank you. Appreciate the opportunity
to provide a status report for Ko Olina Resort and Marina.”
This hearing was convened to address Ko Olina’s compliance with the
Findings of Fact of the LUC. Recognizing that Ko Olina is a private entity,
regulated by the laws of the City and County of Honolulu for various land
use ordinances and resolutions, Complainants believe that Councilmember Apo’s
appearance on behalf of Ko Olina constitutes a violation of the provisions
of the Charter and ROH as noted above.
The official transcript of the above-referenced LUC hearing reveals that
Councilmember Apo spoke again and again as a representative of Ko Olina.
The transcript contains many examples, but Complainants provide the following:
a. Page 14: Line 23
b. Page 17: Lines 11, 15, 21
c. Page 19: Line 23
Prior to this hearing before the LUC, Complainants (EnviroWatch, Inc.
and others), provided Councilmember Apo with information pertaining to the
closure of the public boat launch ramp at Ko Olina, which Complainants had
hoped he would address in his capacity as a City Councilman. Upon receipt
of the information, he led Complainants to believe that he would be looking
into the matter, i.e., investigating the complaint regarding the improper
closure and subsequent destruction of the public boat launch ramp at
Ko Olina. Complainants believe that, instead, he used the information
provided by the Complainants to bolster Ko Olina’s position before the LUC.
Councilmember Apo never disclosed to Complainants that he was working with
Ko Olina, and Complainants discovered this situation only by attending
the LUC hearing.
SUMMARY: Complainants believe that Councilmember Apo’s action
constitutes a breach of the Charter Standards of Conduct, namely,
Section 11-102 (b) (c) and (e).
2. In his January 31, 2005 Disclosure of Financial Interest to the Office
of the City Clerk, City and County of Honolulu, Councilmember Apo indicated
on Item 7, Clients Personally Represented Before City Agencies,
“Representative: Todd Apo; Client: Ko Olina Community Association; City
Agency: Council; Nature of Representation: Lobby.” He thus revealed that he
is a lobbyist for Ko Olina. However, when Complainants checked the official
list of registered lobbyists (records from the period 2004 - 2005, provided
by the City Clerk’s Office, Complainants found that Councilmember Apo had
not formally registered as a lobbyist for Ko Olina.
SUMMARY: Again, Complainants believe that this is a breach of the
Ethics laws, and Complainants’ position is more fully explained when
read in conjunction with the additional information provided
3. Councilmember Apo is the Executive Vice President of the Ko Olina
Community Association. On April 6, 2005, Councilmember Apo abstained from
voting on City Council Resolution No. 05-118, which involves a request for
additional funds for the payment of services performed by the law firm of
Goodsill Anderson Quinn and Stifel LLP, as special Deputy Corporation Counsel
representing the City and County of Honolulu in the lawsuit entitled
Colleen Hanabusa, et al. v. Department of Environmental Services et al.,
Civil no. 03-1-0634-03. This suit, ”Complaint for Declaratory Judgment and
Injunctive Relief” was filed against the City and County of Honolulu by
Plaintiffs Colleen Hanabusa and the Ko Olina Community Association, Inc.
Clearly, as Executive Vice President of the Ko Olina Community
Association, Councilmember Apo has a special interest. His action, i.e.,
abstaining from voting on Resolution No. 05-118, to authorize additional funding
to defend the City and County of Honolulu against the lawsuit, shows that he was
cognizant of a concern of conflict of interest regarding the injunctive relief
sought by the Plaintiffs (including Ko Olina Community Association) in the matter
of the closure of the Waimanalo Gulch Landfill.
Complainants believe that Councilmember Apo’s action in another matter, his vote
on Bill 37 (2005) CD1, represents a violation of the Ethics laws. On May 11, 2005,
Councilman Apo voted “yes” on First Reading of Bill 37. On September 28, 2005,
he again voted yes, and Bill 37 passed Second Reading. Item 7(A) of Bill 37 provides
for a specific date of closure of the Waimanalo Gulch Landfill, and Complainants
believe his vote was influenced by his special interest as Executive Vice President
of the Ko Olina Community Association.
The injunctive relief sought by the Ko Olina Community Association shows that they
want the landfill to be shut down. Plaintiffs (Colleen Hanabusa and the Ko Olina
Community Association) allege: “Plaintiff will suffer irreparable harm if Defendants
are permitted to proceed with implementing its proposed landfill expansion pursuant to
the FEIS.” Therefore, on one hand Councilmember Apo is clearly involved in a legal
action against the City and County of Honolulu (which alleges 15 counts against
Defendant City and County of Honolulu in regard to the operation and expansion of
Waimanalo Gulch Landfill), yet on the other hand he still cast his vote in his capacity
as a Councilmember on Bill 37 (involving the matter of the closure of the landfill).
Bill 37 is still active. We also ask that the ethics commission look into the
more recent voting activities of MR. Tod Apo on matters relating to Bill 37 and the
closure of the Landfill.
In essence, Councilmember Apo has voted to set a date for closure of the landfill,
achieving what he had hoped to achieve through the lawsuit. Complainants believe this
conflict of interest, i.e., serving as Executive Vice President of the Ko Olina
Community Association, the organization that has brought legal action against the
City and County regarding the landfill, while simultaneously serving as a
City Councilmember, voting on bills relating to this issue, is a clear violation
of the Ethics laws. Complainants believe that he cannot wear two hats: he cannot serve
the people of the City and County of Honolulu in his capacity as Councilmember, while
maintaining his position as a officer of the Ko Olina Community Association.
SUMMARY: We are concerned that Councilmember Apo cannot be objective in these matters.
He is a Plaintiff in an active suit against the City in which he is privy to sensitive
information protected by Attorney/Client Privilege. He receives information from City
agencies such as the Department of Planning and Permitting, that an ordinary citizen
would not enjoy, and Ko Olina can therefore be viewed as having an advantage. For all
of the above reasons, Complainants believe that Councilmember Apo is in breach of the