The latest federal grand jury subpoena to hit Honolulu’s rail agency — its third such order in two weeks — might not be as easy to comply with as the first two, project leaders say.
That’s because the latest order demands that the Honolulu Authority for Rapid Transportation provide the minutes of its board’s closed-door meetings — the same documents that the HART board either heavily redacted or entirely withheld recently from the state auditor’s office.
The same issues that arose with the state auditor will arise with the HART’s latest grand jury subpoena, dated Feb. 15 from Assistant U.S. Attorney Amalia Fenton.
“We’re going to comply as much as we can,” HART board Chairman Damien Kim said Monday in a press conference with the agency’s executive director, Andrew Robbins.
But Kim added that the city’s Corporation Counsel would first have to discuss what the board could share with the U.S. Attorney’s office through HART. The board would then follow its counsel’s advice, he said.
The way the federal investigation has played out so far, with a seemingly steady trickle of subpoenas arriving at HART’s offices, isn’t unusual, said Kenneth Lawson, an instructor and co-director of the Hawaii Innocence Project at the University of Hawaii William S. Richardson School of Law.
“That’s not to say it’s not concerning,” Lawson added, when informed of HART’s third subpoena. “Whatever’s been provided so far hasn’t satisfied.”
“Sometime when you start peeling that onion, other questions arise,” said Lawson, who teaches criminal law and procedure.
HART received the third subpoena from the U.S. District Court late Thursday, via an email through the local agency’s attorneys, Robbins said.
The latest order requires that HART provide by March 21 “complete and unredacted copies” of all HART board meetings, including the board’s closed-door sessions.
Getting unredacted minutes became a major sticking point in the state auditor’s examination of HART last year.
State Auditor Les Kondo’s office had asked the HART board for minutes from meetings held in executive session from 2014 through 2016.
However, the board, acting on the advice of the city’s Corporation Counsel, instead provided the auditor with minutes from June 2016 to July 2017 and documents were “redacted so extensively as to render them indecipherable and meaningless,” according to the auditor’s final report.
The issue frustrated Kondo to the point that he brought it up during the public comments session of a HART board meeting last fall.
“Those same issues are in play, I would assume, because it’s the same thing,” Kim said Monday.
Rail officials received the third subpoena shortly after having briefed the media on the second subpoena.
And the second subpoena arrived shortly after Robbins briefed the media on the first order.
Robbins said Monday that he’s not sure why the subpoenas have been arriving in such piecemeal fashion, “but that’s the way it’s coming.”
Their steady trickle, however, is undercutting HART’s efforts to restore public confidence in the state’s largest-ever public works project, which has seen estimated costs nearly double from $5.26 billion in December 2014 to $9.2 billion today.
“I’m sure it doesn’t help — that’s for sure,” Kim said Monday. “We do want to get out the positive message on the rail, but this slows things down. It is difficult, and it (paints rail) in a negative light.”
The orders received so far have been both expansive and tightly focused.
The first subpoena, which HART received Feb. 11, was a sweeping order that demanded the agency provide consultant contracts, lists of contractors, change orders, archaeological studies, and correspondence with the Federal Transit Administration.
The second order was more targeted, probing HART’s overpayment of property owners along the rail line to cover their relocation costs. The agency had reported the issue to the FTA in February 2018 after a consultant flagged various instances in which HART had not followed the proper federal procedures.
In addition to the document requests that have been made public, federal investigators could be talking to witnesses or drawing from other sources for their probe, Lawson said.
“There’s something that’s making them continue this investigation,” he added.
HART so far has not received a fourth subpoena, Robbins said Monday.
The board may discuss the latest order at its latest public meeting Thursday if that’s deemed possible, Kim said. Its members are already slated to discuss the previous subpoenas that arrived.
Read the latest HART subpoena here:
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