The state’s Office of Information Practices says it will investigate whether local officials overseeing Honolulu’s rail project violated the Sunshine Law when they discussed possibly hiring former U.S. Rep. Colleen Hanabusa as a consultant in private emails.

OIP’s announcement came in a letter Wednesday to the Honolulu Authority for Rapid Transportation, and was in response to an appeal made earlier this week by the Civil Beat Law Center for the Public Interest

The Civil Beat Law Center asked the agency to examine December emails between HART board leaders Toby Martyn, Hoyt Zia and Lynn McCrory — and whether the discussion among the group ran afoul of the state’s public meetings laws.

HART Board Member Hoyt Zia.
Hoyt Zia is among several HART board members who were part of email discussions on board business outside of the public meeting process. OIP is investigating whether Sunshine Law violations occurred. Cory Lum/Civil Beat/2019

Typically, no more than two members can discuss board business outside of the open meeting process under the Sunshine Law, which aims to provide public transparency.

Further, the Law Center asked OIP to investigate all the communications between Martyn, Zia, McCrory and other board members because “it seems apparent that the HART board may have violated the open meeting requirement on other occasions as well” based on those emails.

Normally, such requests for an OIP investigation need to come within six months of the potential violation. The Law Center learned of the email discussions after that deadline when they were published last month by the separate Civil Beat news organization, which had obtained the messages through a public records request.

Carlotta Amerino, an OIP staff attorney, said in the state agency’s letter that it agreed to make an exception “because it believes there is significant public interest in the actions of HART.”

On Thursday, Brian Black, the Law Center’s executive director, called that exception “unusual” for OIP. 

The agency isn’t expected to issue a decision for a while — OIP’s letter says that it’s dealing with a backlog of cases “so it will take time to resolve this appeal.”

The members of the volunteer HART board won’t face any penalties if it’s found that they violated the Sunshine Law, Black said.

OIP Director Cheryl Kakazu Park did not respond to a request for comment late Thursday.

Martyn said Thursday that the city’s Corporation Counsel is handling the appeal and he referred questions to that agency. 

“We are reviewing it and will respond in due course and in the appropriate manner,” Deputy Corporation Counsel Krishna Jayaram told Civil Beat in an email Thursday.

‘This Item Is A Little Strange’

Hanabusa, in addition to being a former Hawaii congresswoman, is also HART’s former board chair and a former president of the state Senate. 

In their December emails, Martyn and McCrory expressed support for hiring her so that Hanabusa might help the board deal with the rail’s growing budget deficit, among other issues. 

HART officials, including the agency’s interim director, Lori Kahikina, further expressed support in the emails to re-hire the project’s longtime federal lobbyist, Dennis Dwyer.

HART Bill Brennan at HART board meeting.
Bill Brennan, HART’s former spokesman, called the agenda item used to discuss hiring a consultant “a little strange” when that meeting took place in December. He would be sacked by the agency’s incoming leadership a few weeks later. Cory Lum/Civil Beat

The rail officials put those preferences in writing several months before HART put those two consulting contracts out to bid via a competitive process. Both Hanabusa and Dwyer were eventually awarded the contracts. 

Hanabusa was the sole bidder for her contract. She later declined it amid growing scrutiny of the award and opted to take a seat that was soon opening up on the board instead.

In its appeal this week, the Civil Beat Law Center also points to an “intentionally vague” agenda item used by the board to discuss hiring a consultant as another potential Sunshine Law violation. 

The agenda item for that Dec. 17 discussion read: “FY21 Budget Reappropriation Request –HART 201 (HART Expenses and Other Direct Costs) to HDRInc. Contract.”

“Instead of a plain language statement of what the Board planned to discuss, the HART Board used ambiguous jargon … to hide its real intent from the public before the meeting,” the Law Center wrote in its appeal.

In fact, that language was so jargony that it confused HART’s then-spokesman, Bill Brennan. In a text to a Civil Beat reporter during that Dec. 17 meeting, Brennan wrote: “This item is a little strange.”

He later followed up with, “the board is hiring a consultant” when he better understood what it meant.

In its appeal, the Law Center said “the intent of certain HART Board members to avoid public discussion is obvious.”

Ewa Beach state Sen. Kurt Fevella last month urged state and federal authorities to investigate HART for potentially violating state procurement laws as well as the Sunshine Law in response to the matter.

The Civil Beat Law Center for the Public Interest is an independent organization created with funding from Pierre Omidyar, who is also CEO and publisher of Civil Beat. Civil Beat Editor Patti Epler sits on its board of directors.

Read the Law Center’s appeal and OIP’s response here:

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