A high-ranking consultant who oversees construction on Honolulu’s $6 billion rail project is under a city ethics investigation for a sailing excursion he took with his family to watch fireworks along the coast of Oahu on New Year’s Eve.
Tom LeBeau is the deputy director of construction for the Honolulu Authority for Rapid Transportation, and a consultant for HDR Inc., whose companies have more than $87 million worth of rail contracts for consulting services.
According to an anonymous complaint filed with the Honolulu Ethics Commission, LeBeau and his family spent Dec. 31, 2014, on a sailboat owned by Tim Mackin, who works for Kiewit Infrastructure Co.
Kiewit has more than $1 billion in construction contracts to help build the city’s 20-mile commuter rail line.
The complaint, which was obtained by Civil Beat, includes photos and Facebook postings that appear to show LeBeau on a boat with Mackin. It also states that LeBeau is responsible for oversight of Kiewit, and questions whether he can remain unbiased “while accepting favors in the form of coastal sails.”
“If this were a City employee, they would be in violation of ethics rules,” the complaint says. “Why is an HDR employee under contract to the city not being held to the same standard?”
The complaint was sent to several top officials at the city, including Honolulu Mayor Kirk Caldwell, HART Executive Director Dan Grabauskas, HART Project Director Sam Carnaggio and HART Board Chairman Don Horner.
Caldwell’s office did not respond to a request for comment Thursday, but HART officials acknowledged they were aware of the complaint.
“If this were a City employee, they would be in violation of ethics rules. Why is an HDR employee under contract to the city not being held to the same standard?”
“We have spoken to our consultant and they have addressed it,” HART Deputy Executive Director Brennon Morioka said in a written statement. “This is being treated as a personnel issue.”
HART did not make LeBeau available for comment. A spokesperson for Kiewit also declined to comment, saying the company would defer to HART on the matter.
Honolulu Ethics Commission Executive Director Chuck Totto would not comment Thursday on the specifics of the LeBeau investigation except to confirm that it is an open case.
But Totto did say that cases involving “hybrid” employees, such as LeBeau, pose unique problems to city ethics investigators.
For instance, it would be a clear conflict of interest if a city or HART employee received a gift from someone whose work they were supposed to oversee. Independent contractors, on the other hand, typically don’t have to abide by these rules, Totto said.
Questions arise, however, when you have a consultant who, for all intents and purposes, acts as a city employee and both monitors and is supervised by other government workers.
At that point, Totto said it can come down to what’s written in contracts, and whether there’s a clause that mandates that a contractor’s employees abide by city ethics laws.
“The issue raises its head now and then,” Totto said. “And it is an issue the commission is concerned about.”
In 2013, Honolulu City Councilman Joey Manahan tried to clear up some of the confusion as it relates to Oahu Transit Services, which is the private nonprofit that gets paid to operate TheBus and Handi-Van shuttle services.
But Manahan’s proposed bill to include OTS officials under the city ethics umbrella failed in committee.
Honolulu City Auditor Edwin Young also pointed out the shortcomings in the ethics code in a 2013 report that questioned HART’s public relations spending and the outsized influence of consultants on the project.
“If the gift was $10,000 that’s really serious. If the gift was a $45 dinner that would be a much less serious violation.”
Because many of the consultants were not required to file financial disclosure information, it was impossible for auditors to determine if there were any conflicts of interest in the awarding of certain contracts.
The report stated: “Honolulu taxpayers need some assurance from HART that taxpayer funds are properly spent and accounted for.”
Other factors that must be considered by the Ethics Commission include whether a consultant has a direct role in overseeing the work of a donor and how much a gift is worth.
Totto said the ethics code has a strict $200 cap on gifts made to city employees. But if a gift was valued at less than $200 the test is whether a reasonable person would determine if a gift was meant to buy influence from the recipient.
Disciplinary action can vary as well, from warnings to fines to terminations. There’s also a continuum based on the severity of the infraction.
“You have to take a look at the nature of the violation,” Totto said. “If the gift was $10,000 that’s really serious. If the gift was a $45 dinner that would be a much less serious violation.”