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Three key board members overseeing Honolulu’s Skyline transit construction violated state open meeting laws when they traded emails about hiring Colleen Hanabusa to a lucrative consultant contract before discussing the proposal in an open meeting, the Office of Information Practices ruled last week.

When the Honolulu Authority for Rapid Transportation’s board finally did take up Hanabusa’s potential hiring at its Dec. 17, 2020 meeting, the discussion took place under a vague agenda item described as a “budget reapportionment.” It made no mention of hiring a new consultant. 

That denied the public a chance to properly weigh in on the potential hiring, further violating the state’s on open meetings, OIP determined. The agency found that board members did not intend to withhold information from the public, even though several of their emails inquired about how much they would actually need to disclose to the public during open session.

The agency’s June 25 decision comes nearly three years after HART board members, amid growing public scrutiny, abandoned their attempt to hire Hanabusa as an outside consultant under a contract that would have been worth almost $1 million for up to six years to help find more funding for the cash-strapped transit project.

Instead, Hanabusa opted to rejoin the unpaid HART board, which she had previously sat on and chaired in 2015 and 2016. She now serves as the group’s chair again. 

“The fact that the HART board was engaging in this type of conduct at the time and thought that it was OK — that they could just talk story in email about what they were going to do … obviously they didn’t understand what the Sunshine Law required,” Public First Law Center Executive Director said.

Black asked OIP in 2021 to investigate whether any violations had occurred after he reviewed HART emails that Civil Beat obtained via a public records request. The state agency is notorious for taking several years in some cases to issue decisions on open government matters.

The three HART board members who had discussed hiring Hanabusa via email — Toby Martyn, Lynn McCrory and Hoyt Zia — have all since left the board. Martyn was the group’s chair when he resigned in 2021 shortly after the Hanabusa controversy.

Martyn said he was unavailable to comment Friday because he was traveling. McCrory and Zia declined to comment.

The OIP decision last week on Black’s three-year-old request does not cover the separate questions raised at the time over whether HART had written the contract procurement so narrowly that only Hanabusa would qualify.

The rail agency sought someone with a law degree and 20 years of experience practicing law, at least 10 years of experience at either the city and county or state level of government “in legislation and policy making” and a minimum of five years of experience at the federal government level in legislation and policy making.

Hanabusa, a longtime labor attorney who served in the Legislature and in the U.S. Congress, met those qualifications, was the only bidder and was awarded the contract before opting not to accept it.

She has said she was surprised at how closely the qualifications reflected her own credentials. “What they came up with was not something I expected,” Hanabusa said in 2021.

‘Do You Think This Is Adequate Disclosure?’

If the board had followed through with Hanabusa’s hiring “there would have been serious issues from many different directions” under the state’s open meetings law, and the action could have been nullified, Black said.

“You’re really undercutting the intent of the Sunshine Law when you have such a substantial sum of money and procurement essentially being resolved by email by key board members, rather than discussing it in an open meeting,” he added.

On Dec. 7, 2020, Martyn suggested in an email thread with the other two members plus the board’s executive officer, Cindy Matsushita, that the group consider hiring Hanabusa to lobby the state Legislature to extend the rail project’s general excise and transient accommodation tax revenues.

Hanabusa could also help convince the Federal Transit Administration to release the project’s remaining federal funds, which were being withheld, Martyn wrote.

OIP found that the board members did not “show an intent” to evade public scrutiny under the Sunshine Law.

However, the emails released to Civil Beat in 2021 did show conversations between Martyn, HART staff and the city’s corporation counsel on how to best advance the consulting contract through the HART board’s public meetings.

“In open session, my plan is to only talk about the desire for the board to engage a consultant to assist us,” Martyn wrote in a Dec. 15, 2020 email to corporation counsel. “Do you think this is adequate disclosure for open session?” The response was redacted.

Hanabusa made Sunshine Law training and compliance “a priority” at HART after she rejoined the board as a volunteer and her colleagues promoted her back to chair, the OIP decision stated.

On Friday, Hanabusa said her emphasis on that training had nothing to do with how her potential consultancy had been handled at HART.

“I didn’t know about all that was going on” prior to rejoining the rail board, Hanabusa said.

“I’ve always been a stickler for sunshine,” she said. “I think we are very careful about compliance with sunshine and what needs to be followed in terms of going out.”

Common Cause Hawaii Program Manager Camron Hurt said that it’s especially important for HART to “adhere to the utmost transparency” given its struggles to manage Honolulu rail, a transit project whose cost has doubled, whose completion date has been pushed back 10 years.

The system’s original route has also been trimmed by more than a mile, shedding two planned stations in the process.

“An organization like HART should leap at it, because it’s the only thing that’s going to help restore the public’s faith is them being more transparent,” Hurt said Friday.

Read the OIP ruling here: