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Before this summer, Honolulu Authority for Rapid Transportation board members had already tried twice to fix their restrictive voting and quorum rules, which took effect when the Legislature added four more seats to their ranks in 2017.

A potential city charter amendment went down in flames in 2018 amid widespread voter confusion. Then, separate measures to fix the situation via the Legislature stalled earlier this year. 

That left the volunteer HART board having to constantly scrape together at least eight “yes” votes to get anything done on a multibillion-dollar transit project that’s gone wildly over budget, when there are only nine voting members total. Sometimes, they don’t have the votes and have to wait until later meetings to take action.

Then, in July, the rail board’s leaders and the attorneys who represent them tried a much simpler approach — passing measures as they did before board members were added, requiring only six votes. But critics say the solution may not have been legal — and that it certainly wasn’t transparent. 

The approach has also raised the ire of the state leaders whose help HART might eventually need to rescue the cash-strapped transit project yet again. 

Meanwhile, the state Attorney General’s office is looking into the matter.

“The HART board needs to be careful,” House Speaker Scott Saiki said Monday. “If they proceed with a modified quorum it could potentially invalidate the decisions that they make.”

HART board member Kika Bukoski disagreed with his colleagues’ recent maneuvers.

“As a public board, we can’t be making rules up as we go. We need to be as transparent as possible. We haven’t had the best track record,” he said Tuesday.

“I think every vote that we take going forward” could be subject to legal challenge, Bukoski added. “Those are my concerns.”

That includes their recent approval of one of the project’s most expensive change orders in a long time, valued at $34 million and benefiting the contractor who’s building rail from Aloha Stadium to Middle Street.

Closed Session Leads To Surprise Announcement

During their July meeting, board members went into a closed session to discuss electing new leadership. When they emerged, Hoyt Zia, who was then serving as HART’s interim chairman, made a surprise announcement.

“It seems abundantly clear that continuing in this way is unworkable if this board is to function in the way intended,” Zia said. 

He declared that the board would no longer follow the same quorum and voting standards that it had adhered to for nearly the past four years. Instead, it would revert back to the prior standards, which allow it to pass rail-related measures with a simple majority of six “yes” votes.

The city’s Corporation Counsel, which represents HART, consulted the board on the decision, Zia said. “I believe I have the authority under the rules to do this,” he added.

That led to a , one of the board’s most outspoken members at meetings. He insisted that HART wasn’t following proper procedure and compared the swift reversal to something under a “unilateral dictatorship.” 

“This is uncalled for,” Bukoski said. “This is not transparency.” 

On Friday, HART released a Corporation Counsel memo that backs Zia’s decision. The Sept. 23 memo, signed by Deputy Corporation Counsel Geoffrey Kam, questioned the legitimacy of the board seats created four years ago by state lawmakers.

“The Legislature does not have the power to seat four non-voting, ex-officio members to the HART board of directors,” Kam wrote. Thus, the HART board’s quorum and voting majority should be based on the original 10 seats established in the city charter, Kam added.

Those Legislature-appointed seats, however, aimed to give state leaders more oversight after they approved a $2.4 billion bailout package for the project — their second such rescue of the project in two years.

In fact, the four non-voting seats were included in 2017’s Act 1, the bill that authorized the additional rail funding covered by the state’s general excise and transient accommodations taxes.

“If the city feels that the Legislature has overstepped by appointing these four members, then the city should decline any further state funding,” Saiki said. 

“Just Challenge The Law In Court”

Currently, Honolulu city leaders are looking at creating an additional TAT of up to 3%. At least some of that money would help cover rail’s massive budget shortfall, currently estimated at some $3.6 billion.

Saiki noted that even if the city administers the tax, it would still depend on a state tax source. Thus, the city can’t have it both ways, he said. It can’t claim complete autonomy to set the number of board seats but also rely on a state tax to fund the project.

Further, Saiki said that the city can’t disregard a state law based on a Corporation Counsel opinion. Instead, it “should just challenge the law in court if it feels the law is unconstitutional.” 

The matter of HART’s board seats could have larger consequences for city and state relations, he said, although he didn’t specify what those might be.

Kam’s memo is in response to an “inquiry about the validity of the position asserted by Hoyt Zia” that came from state deputy Attorney General Gary Suganuma. 

Neither Suganuma nor the Attorney General’s Office responded to a request for comment. (Updated: On Wednesday, a spokesman said via email that neither Suganuma nor the office could discuss the validity of HART’s move “since it may end up as a client matter.”)

Then there’s the question of transparency.

“Given that (HART board leaders) were significantly changing how they’ve operated for years, they should have given the public an opportunity to understand that that was going to happen and provide comments,” said Brian Black, executive director of the Civil Beat Law Center for the Public Interest, an independent organization created with funding from Pierre Omidyar, who is also CEO and publisher of Civil Beat.

Meanwhile, Colleen Hanabusa, the HART board’s current chair, said she agrees with the position the board took in July. Oahu voters explicitly rejected approving the addition of the legislative board members, she said. Hanabusa acknowledged, however, that the matter could eventually wind up in court. 

“I think it’s going to be up to the AG as to how they proceed,” she said.

For now, HART’s Legislature-appointed members continue to participate in board meetings, Hanabusa said. That includes the board’s closed sessions, she added.

“We are not undercutting them,” Hanabusa said. “Their participation is valuable at this time, especially for those who’ve been around. It’s still an ongoing process.”

Hanabusa insisted, however, that those in the seats created by the Legislature should be called “state appointees” rather than actual HART board members.

“It was not proper, and it placed the board in a very compromised position,” Bukoski said Tuesday. “We need to have the public’s trust.”

Read the Corporation Counsel memorandum here: