A decision on whether to sue the Honolulu City Council could come up at the first official board meeting of a new rapid transit agency this week.

Honolulu Mayor Peter Carlisle on Monday backed off his threats to take the council to court over its decision to pass a budget for the Honolulu Authority for Rapid Transportation. He now says he is waiting to see what HART decides to do with its first budget. The agency was created through a November ballot question, and is charged with planning, constructing, operating and maintaining Honolulu’s $5.3 billion rail project.

A long-brewing fight between the executive and legislative branches centered on the council’s attempts to amend and pass a budget for HART, even as Carlisle warned council members not to do so. It came to a head Monday when the council by a 9-0 vote overrode Carlisle’s veto of its operating and capital budgets for the agency.

Last week, Carlisle said he was willing to spend hundreds of thousands of dollars in a legal fight against the council. Both sides say they their interpretation of the council’s role is clearly spelled out in the city charter question that led to the creation of the new transit agency.

The council has insisted that it has the right to amend and approve the HART budget. So when Carlisle refused to transfer a HART budget to the council for consideration, council members took a budget draft created by the Rapid Transit Division and amended it.

By doing so, Carlisle says that the council not only overstepped its bounds but violated the city charter, which he says prevents the council from initiating its own spending plans.

How Carlisle reached that conclusion could signal what HART may decide to do. Carlisle says he took advice on the matter from Corporation Counsel Carrie Okinaga, who leaves her post as the city’s top lawyer on Thursday and will officially begin serving on the unpaid HART board the next day.

“I’ve had conversations with her in terms of the legality of, essentially, the actions of the council,” Carlisle said. “And also there’s a potential of a lawsuit, and therefore I should follow her advice in terms of dealing with a potential lawsuit.”

Okinaga could not be reached for comment on Monday. Carlisle told Civil Beat he sees no conflict between Okinaga’s role on the HART board and the legal advice she gave him about how a lawsuit between Carlisle and the council might play out.

“She also gives advice to the City Council,” he said.

But City Council Chairman Ernie Martin said it was a separate legal opinion, from the Office of Council Services, that demonstrates why he believes the council has a strong case.

Like the mayor, Martin is waiting to see what HART decides to do.

“I don’t think we’ve had a chance to really discuss this with the authority itself,” Martin said. “But I think on their part, if they’re willing to give their consent to the fact that the council does retain that right, then there’s really nothing to discuss.”

HART board members either could not be reached or refused to discuss a potential lawsuit Monday afternoon.

One HART board member, Wayne Yoshioka, has already argued with the council about its role.

Yoshioka is director of the city’s Transportation Services department, and testified to the council last month that he didn’t believe it should oversee HART’s budget.

Given the expertise that Yoshioka and Okinaga already have about the rail project, it’s likely that board members will turn to them for guidance. Rail chief Toru Hamayasu led an orientation for board members earlier this month.

In that meeting, Hamayasu mentioned a “minor” change to the HART budget that his Rapid Transit Division drafted, but did not mention the key changes that council members had passed in their version of the budget the night before.

Hamayasu didn’t discuss the council’s amendment that would prohibit HART from borrowing money until after the federal government commits to providing $1.5 billion for the project, for example.

At the time, Hamayasu said he didn’t bring up those amendments because he saw them as separate from the HART budget.

The city charter stipulates that HART’s executive director is tasked with preparing its operating and capital budgets. But the HART board still has to pick its executive director, and it will need funds to operate beginning on July 1, the day of its first meeting.

If HART opts to adopt the Rapid Transit Division’s budget from the get-go, and ignores the council’s amendments, the decision about a potential lawsuit may go back to the City Council.

Michael Levine contributed to this story.

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