Lawyers disagree over legality of HART board’s confidentiality rules

The state Department of the Attorney General has issued an opinion that the board overseeing the city’s troubled rail project has no legal authority to treat board members differently and require legislative appointees to the Honolulu Authority for Rapid Transportation to sign new confidentiality agreements.

But the city’s Department of the Corporation Counsel disagrees and has proposed that board member Natalie Iwasa sign “a temporary confidentiality agreement” through March as part of potential “paths forward.”

Iwasa told the Honolulu Star-Advertiser on Thursday that the terms of the temporary agreement remain the same — especially the potential for criminal penalties — and that she won’t sign it.

“I just kind of feel like I’m in limbo right now,” she said.

The next meeting of the full HART board is scheduled for Feb. 25, when the board likely will go into executive session and again exclude Iwasa for the second meeting in a row for not signing the confidentiality agreement.

New rules signed in November by HART board Chairwoman Colleen Hana­busa require the two members appointed by the Senate president and the two appointed by the House speaker to sign confidentiality agreements.

The new rules implemented by Hanabusa also give the HART board more power and discretion over legislative appointees Joseph V. O’Donnell and Jeoffrey S. Cudiamat, who were appointed by Senate President Ron Kouchi, and Michele Chun Brunngraber and Iwasa, who were appointed by House Speaker Scott Saiki.

The HART board “may allow” the legislative ap­pointees to attend both public board meetings and closed-door executive sessions as long as they sign confidentiality agreements “as a condition of such participation,” according to a resolution.

Further, “The HART Board of Directors reserves the discretion to exclude the Legislative Appointees, or any of them, from such participation at any time if it does not further the interests of the Board,” it says.

Hanabusa told the Star-Advertiser on Thursday that the corporation counsel’s office drafted both the confidentiality agreements and resolution reinforcing the different status of legislative appointees.

The concern was “how to ensure all of the information remains confidential,” she said. “We had a concern about the (legislative) appointees who did not take an oath of office, nor should they take the county’s oath of office because they’re legislative appointees. … The real question here is really the jurisdiction over the HART board, and I believe the jurisdiction lies with the people of the City and County of Honolulu and what the (city) charter provides.”

Regarding confidentiality, Deputy Attorney General Robyn B. Chun wrote in a seven-page opinion, “All members of the HART Board, irrespective of appointing authority, are therefore obligated to keep confidential any confidential information obtained as members of the HART Board and excluding any Board members from portions of meetings until they sign a confidentiality agreement is unreasonable and cannot be justified.”

On Jan. 27, Saiki wrote to city Corporation Counsel Dana M.O. Viola asking “that your office cease and desist from requiring the legislative-appointed HART Board members to execute confidentiality agreements. It is my understanding that your office will exclude them from participating in HART open and executive sessions (and some correspondence) unless they execute the agreement.”

On Tuesday, Saiki again wrote to Viola, saying, “I do not believe that HART’s current rules that discriminate against HART board members based on their status as a legislative appointee are lawful. They also reduce accountability and transparency.”

In a statement to the Star-Advertiser on Thursday, Saiki said, “The legislative appointees to the HART Board serve as watchdogs and guarantee public transparency. They are entitled to the same information that other board members receive. I do not agree with the city attorneys and hope that they change their minds.”

Chun wrote in her opinion that there is “no legal authority to support treating a board member differently based on the board member’s appointing authority. … Corporation Counsel’s requirement that HART Board members who were appointed by the Legislature sign a confidentiality agreement is unnecessary and does not justify their exclusion from Board meetings and correspondence.”

In her reply to Saiki, Viola said “there is a difference of opinion” between her office and the Department of the Attorney General. She proposed discussing “possible paths forward to address our Charter and quorum concerns while allowing the State the representation and participation it seeks,” including Iwasa signing a temporary confidentiality agreement.

On Wednesday, Iwasa told the Star-Advertiser that among her concerns “is that it’s a crime to release confidential information according to this agreement.”

Iwasa is a certified public accountant and certified fraud examiner and has become one of the most vocal board members in asking questions about the rail project, which is currently estimated to cost nearly $11.4 billion, with a deficit of $1.96 billion.

The system is planned to consist of 20 trains running along a 20.2-mile, 21-station route from East Kapolei to Ala Moana Center, Hawaii’s largest transit hub, and is not scheduled for completion until March 2031.

Confusion over the composition of the HART board began in 2017 when the number of board members expanded to 14 from the original 10 after the Legislature required the addition of two nonvoting members selected by the House speaker and two picked by the Senate president as part of a $2.4 billion rail bailout.

The nine voting members include three appointed by the City Council, three picked by the Hono­lulu mayor, one selected by the HART board, one representing the state Department of Transportation and one who represents the city Department of Transportation Services.

The five nonvoting members include the four legislative appointees and one representing the city Department of Planning and Permitting.

The Legislature last session failed to pass either of two bills intended to bring clarity to the issues over who on the HART board can vote and what constitutes a quorum.

Senate Bill 998 specified that the members appointed by the legislative leaders would be voting members, meaning that 13 of the 14 HART board members would have voting power.

House Bill 1288 and its companion bill, SB 1324, would have kept the board members appointed by the House speaker and Senate president as nonvoting members but made it clear their positions “shall not be counted towards a quorum,” making it easier for the board to at least hold meetings.