There is no need for the Honolulu City Council to review votes taken on the $6 billion rail project or other key development projects that were called into question by Councilman Romy Cachola last fall, the city’s top civil attorney said Friday.

Corporation Counsel Donna Leong, in a written response to questions from the Honolulu Star-Advertiser, said the advisory opinions issued by the city Ethics Commission to settle cases against Cachola and former Councilman Nestor Garcia made "no findings of misconduct or ethical violations."

As a result, "there is no reason to review any vote of the City Council," Leong said.

Further, "I decline to opine on this very important issue when there is no definite set of facts presented," Leong said. "A court’s decision on this issue will likely turn on the specific facts of the case."

Council Chairman Ernie Martin, who had sought Leong’s advice about whether votes need to be retaken in light of Cachola’s charges, said he will schedule a closed-door meeting between Council members and Leong in the coming weeks.

Cachola caused a stir in comments to the media after he signed off on an agreement last September requiring him to pay a $50,000 fine, but not admit guilt, to settle a case before the Ethics Commission that accused him of ethical breaches. Specifically, he was accused of not disclosing that he had received prohibited gifts from lobbyists who would benefit from favorable votes he made that cleared the way for rail and several West Oahu land use developments.

The lobbyists involved were Aina Nui Corp., the master developer of Kapolei, and its predecessor, the former Campbell Estate, as well as Pacific Resource Partnership, the pro-rail political action group that spent millions to support pro-rail candidates.

The commission, in its advisory opinion on the Cachola charges, cited a 1983 case and said "a vote by a Council member is null and void if the member had a conflict of interest that it had not disclosed." Further, the opinion said, failure to disclose a conflict "will invalidate the Council action if, after discounting the void vote, there are no longer sufficient votes for the measure to pass."

The opinion pointed out, however, that a review of 100 measures Cachola voted on that may have benefited the lobbyists showed all would still have passed if his vote were not counted.

But Cachola told reporters that while his vote, by itself, may not have changed the outcome of some measures, he had the Excel worksheets — extrapolated from information provided by the commission staff as they investigated him — showing that up to five former colleagues also accepted the same gifts in at least 11 instances.

This May, the commission reached a similar agreement with Garcia, one of the five former or present Council members mentioned by Cachola. Not admitting guilt, Garcia agreed to pay a civil fine of $8,100 to settle an investigation that centered around allegations he had not disclosed accepting gifts before voting on matters that benefited the same lobbyists that were referred to in the Cachola case.

The advisory opinion said Garcia failed to disclose conflicts of interest when voting on 72 bills or resolutions that benefited lobbyists who gave him gifts.

Unlike the Cachola advisory opinion, the Garcia opinion did not state that his votes were null and void.

But commission Executive Director Chuck Totto told reporters who interviewed him about the opinion that commission staff believed Garcia’s votes were null and void.

Leong told the Star-Advertiser that it was not up to Totto or the commission to determine if votes should be invalidated or retaken.

Totto’s comments were also noted by Leong in June when she testified before the commission when it was debating whether to adopt a media policy that severely curtailed what Totto, his staff, or even the commission members themselves could tell the media.

The commission approved the policy 5-1, but in July rescinded that policy by a 4-3 vote and then voted unanimously to adopt a less restrictive policy.

Commission member Michael Lilly, who led the effort to rescind the policy, said he believed Totto had not been out of line in telling reporters that the votes of Cachola and Garcia should be nullified.

Lilly, at the July meeting, said that while he agreed it wasn’t up to Totto or the commission to nullify votes, he concurred with Totto that that the votes of Cachola and Garcia should automatically be nullified and that the Council should re-vote on them.

"I think it is incumbent on the commission, board or City Council to correct the record whenever a vote is cast without a conflict disclosure," Lilly told his colleagues. "If they don’t correct the record to reflect only valid votes it undermines the credibility of a vote and the public’s confidence in government."

Speaking outside his commission role in a later, separate interview with the Star-Advertiser, Lilly said he believes the Council should retake the votes to eliminate any legal questions that could arise.

"If the public learns that there is some question about whether votes were validly cast, to ensure that the public confidence is not shaken, that commission, or board or council really should go back and just make sure — that measures were cast with sufficient, disinterested votes," said Lilly, a former Hawaii attorney general.

"You don’t want to have a matter result in litigation where the public now sues to enforce the rules," he said. "It should be government taking care of these things."

Martin, when told of Lilly’s comments, said he disagreed with his conclusion and that he would wait to hear from Leong.