Honolulu City Councilwoman Heidi Tsuneyoshi is pushing back against plans to hire outside legal counsel with city money to help rail officials address the federal subpoenas that landed about six months ago.

Tsuneyoshi, who represents the North Shore, Wahiawa and parts of the Windward coast, has introduced a resolution that urges the Honolulu Authority for Rapid Transportation to cover all of its legal costs, including those related to the subpoenas.

Having the city cover that $50,000 cost, her resolution asserts, violates the city charter. Furthermore, HART should devote its efforts toward fully complying with those federal orders — not complicating matters with additional legal review, Tusneyoshi said Monday.

“Those minutes can be turned over to (the) federal government and should be turned over without the need for outside counsel,” she told reporters gathered outside Honolulu Hale.

Honolulu City Council Member Heidi Tsuneyoshi listen to public testimony.
Honolulu City Councilwoman Heidi Tsuneyoshi at a meeting earlier this year. Cory Lum/Civil Beat

Resolution 19-154 is a response to Mayor Kirk Caldwell’s plans to pay for outside counsel to help navigate the subpoenas, beyond the city’s Corporation Counsel, which normally advises HART and its board.

The local rail agency’s leaders have questioned whether they can fully comply with the third subpoena in particular, which requires the board to hand over all of its “complete and unredacted” closed-door meeting minutes through 2018.

The order lists no exemptions for issues that fall under attorney-client privilege.

HART officials have said they’ve been approved to hand thousands of pages to federal authorities on a rolling basis. They’ve also indicated that they’re being very careful about what, exactly, they deliver.

“It’s understood that there are going to be efforts made to do the production in a responsible manner in light of the respect needed to be accorded to the attorney-client privilege material,” deputy corporation counsel Randall Ishikawa told the HART board March 29.

Ishikawa referenced “personnel-privacy interests, the strategy and confidential information with regard to the eminent domain proceedings” as well.

Caldwell spokesman Andrew Pereira said the outside counsel’s help on the subpoenas would be “all-encompassing” — it would not just focus on the minutes.

Pereira added that the city is covering the $50,000 for more specialized legal expertise in order to comply with Act 1, the state’s 2017 bailout package, which bars rail dollars from going toward anything that’s not construction-related.

Tsuneyoshi’s resolution notes, however, that HART already has more than $3.75 million budgeted in its 2020 capital budget for outside legal costs — costs that would be paid with rail dollars.

City officials believe the distinction there is that those legal costs would directly apply to construction issues, not the federal criminal investigation, but they’re still researching the matter, Pereira said.

HART Rail Guideway columns near Eliot Street and Daniel Inouye International Airport.
Honolulu’s rail guideway takes shape with new columns erected near the airport. Cory Lum/Civil Beat

HART’s volunteer board has said it will follow the advice of corporation counsel.

The group, comprised of nine voting members and five non-voting ones, was slated to discuss the matter at its Feb. 27 meeting in executive session. However, board member John Henry Felix voted not to proceed with the discussion behind closed doors, and under the board’s current convoluted voting laws it was enough to stop it.

Local advocates for improved open government have asserted much of that board discussion could easily take place in the open.

The board’s Government Affairs/Audit/Legal Matters Committee did manage to discuss the subpoenas in closed session about a month later. HART spokesman Bill Brennan said the board is considering taking up the matter later this month.

He didn’t specify whether it would be a closed-session item.

It’s not clear yet whether Tsuneyoshi’s resolution will advance. To get a  hearing, it would need the approval of council leadership, and Tsuneyoshi is part of the minority bloc. On Monday, she expressed optimism that it would get a hearing in the Budget Committee for the sake of transparency.

The freshman councilwoman has scrutinized the 20-mile, 21-station project, estimated now to cost more than $9 billion, ever since joining the council this year. She introduced a resolution earlier this year requesting a forensic audit, with a $2 million budget earmark, to probe for any malfeasance on the project — an idea that had been debated for the previous several years without getting much traction.

Tsuneyoshi has also suggested she’s open to stopping the project at Middle Street — a move supported by some of rail’s longtime opponents.

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