A month has passed since the Honolulu Authority for Rapid Transportation received its first grand jury subpoena, but the board overseeing the rail project has yet to discuss the criminal probe with its attorneys.

That’s not a big concern for the first two federal orders and the tens of thousands of pages that HART has started collecting to comply with them. However, the delay could complicate matters with the third subpoena, board chairman Damien Kim recently acknowledged.

That order, dated Feb. 15, requires the local agency to hand over by next week all of the board’s executive-session meeting minutes through 2018.

Board members have previously refused to provide many of those same private records to the state auditor’s office, saying they were following the advice from the city’s Corporation Counsel.

Thus, when the third federal subpoena landed, Kim said the board would again consult with Corporation Counsel before deciding how much of its closed-door details it would release to federal investigators.

HART Board Chair Damien Kim meeting held at Alii Place.
Damien Kim leads a meeting of the HART board in 2017. Cory Lum/Civil Beat

“I don’t know what’s going to happen with this federal one,” Kim said Thursday. The board is “just trying to get a clearer picture of what we’re heading to. We’ll do whatever is told of us.”

That discussion hasn’t happened yet, even though HART has a March 21 deadline to comply with the U.S. Attorney’s Office.

The board was scheduled to discuss the recent trio of federal orders to provide documents in executive session during its most recent meeting Feb. 28,  A lone board member, John Henry Felix, voted against the session.

Under the board’s convoluted voting rules, which Oahu voters opted to keep in place when presented with a confusing ballot measure last year, that was enough to block the discussion. (Eight “yes” votes were needed, and only eight voting members attended, including Felix.)

Felix, who’s often a dissident voice on the board, did not return a request for comment. He didn’t want to hold the discussion about the subpoenas behind closed doors, Kim said.

HART rail guideway car photo op Farrington Hwy Waipahu Sugar Mill1. 30 may 2017
A HART rail guideway car undergoes testing above Farrington Highway. Cory Lum/Civil Beat

Brian Black, executive director of The Civil Beat Law Center for Public Policy, said much of the board’s discussion with its lawyers on the subpoenas could have easily taken place in public.

“You’re talking about what are the HART board’s powers, duties, responsibilities in responding to a subpoena. For the most part, those issues are pretty straightforward,” Black said Monday.

The board could eventually move to closed session if “dicier” issues arose, such as potential liabilities, the risks of non-compliance or specific meeting minutes, Black said.

Kim, the HART board’s only remaining original member, also raised concerns about potential consequences of sharing confidential information about individuals discussed in the private board meetings.

HART has already received extensions to respond to the court’s other two subpoenas.

It’s not clear whether the agency will get an extension for the March 21 deadline.

In an email Tuesday, officials with the Honolulu Corporation Counsel only offered that they’ve had discussions with the U.S. Attorney’s Office about the timing of the response. They didn’t say whether they’d secured a deadline.

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