Has HART gone off the rails again?

by Keli'i Akina, Ph.D., President / CEO, Grassroot Institute of Hawaii

When will the Honolulu Authority for Rapid Transportation learn that a lack of openness undermines public trust in the rail?

HART has been dogged by questions about transparency and accountability for years. We’ve witnessed the agency’s seeming reluctance to conduct a forensic audit, confusion over the status of the Federal Transit Administration’s financing agreement, vague explanations of cost overruns — the list could go on.

And now they seem to be at it again.

This week — to the ire of many — HART’s board of directors considered a rule that would restrict the speech of board members appointed by the state Legislature’s speaker of the House and president of the Senate.

The rule proposes that state appointees who say anything publicly about the rail project must “state that he/she is making the position as a state appointee,” and “that he/she has the permission to speak or make statements in writing [from] … her/his appointing authority.”

The rule also proposes to officially require that state appointees sign a confidentiality agreement to participate in the board’s executive sessions, so long as the board doesn’t determine there’s a conflict of interest regarding their participation. This is an especially noteworthy proposal considering that board member Natalie Iwasa, who was appointed by state Speaker of the House Scott Saiki, has been barred from participating in executive sessions since her refusal to sign such an agreement.

Appointees from the Legislature have not always sat on HART’s board. In 2017, seemingly to keep an eye on the board, the Legislature passed a rail bailout bill for the city that also added four non-voting members to the HART board — two appointed by the leader of each chamber.

Now, HART wants to put special conditions on the ability of those state appointees to speak publicly. Moreover, at least one of those state appointees — Iwasa — is a known critic of HART and the rail project.

It’s hard to believe this is a coincidence. The only possible explanation is that HART wants to discourage state appointees from speaking publicly about board matters.

Saiki and even the state attorney general have arrived at the same conclusion, telling Civil Beat that the proposed rule raises constitutional questions and appears to discriminate against the Legislature’s appointees.

State Attorney General Anne Lopez wrote an official letter to HART, explaining that wording of the proposed rule appears to infringe on the appointees’ free speech; “improperly” treats legislative appointees differently from other board members; and impermissibly restrains those appointees from expressing their individual views.

And this isn’t the first time an effort by HART to impose a gag rule on legislative appointees has generated controversy. Last year, the board’s requirement that appointees sign a confidentiality agreement to attend executive sessions resulted in a similar disagreement over the legality of the rule between HART lawyers and the attorney general’s office.

In other words, nothing has changed.

We shouldn’t allow the latest controversy to be brushed off by assurances that such rules are common for public boards. Even if that were true, it runs contrary to the spirit of transparency and accountability that is so desperately needed at all levels of our government.

HART might wind up arguing successfully that its board hasn’t done anything wrong, but they certainly are not making any effort to observe openness and encourage public trust. In fact, they seem to always be running in the opposite direction of those objectives.

Our state and counties in particular have struggled with corruption for years, which no doubt has stemmed from a lack of transparency and pressure to fall in line with questionable practices.

We must continue to demand change.

If HART’s governing board does not abandon its efforts to quell the free speech of state-appointed members, they might find that the Legislature — and the people of Hawaii — have run out of patience with their lack of openness.

Given the agency’s dependence on financial support from the state, they might not like the consequences.