The rules would infringe on the rights of some rail authority board members to speak publicly about the massive rail project, according to the attorney general.

State Attorney General Anne Lopez is warning the board of directors of the Honolulu rail authority that a proposed new board rule would infringe on the First Amendment right of some board members to discuss the controversial project in public.

House Speaker Scott Saiki has also objected to the proposed new rule, saying the board of the Honolulu Authority for Rapid Transportation is venturing into “dangerous territory” because the rule would limit what Saiki’s appointee to the HART board can say publicly.

“I don’t know of another government agency that restricts speech through its rules and procedures,” Saiki said in an interview this week.

“The role of the state appointees to HART is to serve as a check on HART,” he added. “HART should be open to different ideas and opinions, especially since the state (general excise) rail tax expires in 2030.”

Honolulu Authority for Rapid Transportation board Chairwoman Colleen Hanabusa and former Gov. John Waihee ride the rail line from Halawa to Kapolei on June 30. Hanabusa says the proposed new rail board rules simply ensure that all HART board members follow the same protocols when they speak publicly about the controversial rail project. (David Croxford/Civil Beat/2023)

But HART board Chairwoman Colleen Hanabusa said the new rule only requires that board members appointed by Saiki and Senate President Ron Kouchi follow the same requirements as city appointees on the board when they speak publicly about rail.

“We’re trying to ensure that the public is aware as to who is speaking for whom, because the appointing authority is different,” Hanabusa said. “You can make statements in your individual capacity, but you have to say you’re making statements in your individual capacity.”

The dispute revolves around a package of new rules that were developed by Hanabusa and other HART board members acting as a permitted interaction group, similar to a subcommittee. The draft rules were submitted to the board last month, and will be considered Friday at a meeting.

After years of delays and cost overruns, the Skyline rail began operation this summer with service running on just under 11 miles of the roughly 19-mile project, from East Kapolei to Aloha Stadium. Key destinations like the airport await the next phase.

‘Voices Of Opposition’

Lopez and Saiki are questioning proposed Rule 14, which applies only to board members who are appointed by the House speaker or the Senate president.

Most of the HART board members are appointed under the Honolulu City Charter, including three members appointed by the Honolulu City Council, three by the Honolulu mayor, the director of the state Department of Transportation, and the city director of Transportation Services.

The charter also calls for one additional board member to be selected by the other eight members; and makes the director of the city Department of Planning and Permitting a non-voting member for a total of 10 board members.

But the Legislature added four more non-voting members to the HART board in 2017 with the passage of Act 1, which provided a hefty state financial bailout to the city’s cash-strapped rail project. State lawmakers wanted their own representatives on the HART board to keep an eye on things. Act 1 required that going forward the House speaker and Senate president would each appoint two non-voting board members.

One of Saiki’s appointments to the HART board was Natalie Iwasa, a choice that surprised some because Iwasa is a CPA who has been a blunt critic of the project at times. In fact, Iwasa opined in an interview in July that she believes Honolulu would have been better off if rail had never been built.

It is against that background that the HART board will consider Rule 14 at its meeting on Friday.

The proposed rule declares that when one of the legislative appointees to the HART board makes a public statement, that person “shall state that he/she is making the position as a State Appointee.”

The rule also requires that “he/she shall state that he/she has the permission to speak or make statements in writing as the appointee of the Speaker of the House or the President of the Senate, whoever is her/his appointing authority.”

Iwasa said she personally sees Rule 14 as an “attempt to quash opposition, voices of opposition.” She said the rule appears to leave no option for a state appointee to speak or express opinions as an individual.

Skyline train rail commute mass transit free Keone’ae University of Hawaii West Oahu
A Skyline train approaches the University of Hawaii West Oahu Station. Attorney General Anne Lopez said proposed new rules for the Honolulu Authority for Rapid Transportation board of directors would infringe on the First Amendment rights of some board members. (Kevin Fujii/Civil Beat/2023)

Lopez took a similar view in her letter to Honolulu Corporation Counsel Dana Viola on Wednesday, saying the proposed rules as written “infringe(s) upon the State Appointees’ freedom to speak publicly, thereby potentially violating multiple constitutional provisions.”

The proposed rules would restrain state appointees from expressing their own views on issues of public concern “by requiring that all of their public statements be subject to another’s permission and be attributable to their role as a State Appointee. This is impermissible,” Lopez wrote.

She added that the new rules also “improperly treat the members of the HART Board appointed by the President of the Senate and the Speaker of the House of Representatives … differently from the Board Members appointed” under the terms of the city charter.

Saiki said he asked the Attorney General’s office to look into the issue.

“There’s no basis to discriminate against those who are appointed by the Legislature,” Saiki said.

And Saiki wondered aloud: “Is this an indication that HART no longer needs the state’s involvement?” The state is providing almost all of the nearly $10 billion in construction funding for rail by steering general excise and hotel tax revenue to the city for the project, but that arrangement expires in 2030.

Proposed Rule Affects Legislative Appointees

Hanabusa said the claim that the new rule would “discriminate” against legislative appointees is wrong.

HART board rules that govern the conduct of city appointees are different than the rules for state appointees simply because the legislative appointees were named to the HART board by virtue of Act 1, which is different from the city charter, she said.

Hanabusa suggested the “easiest way to clear this whole thing up” is to specify that the proposed rule regarding statements by legislative appointees only applies to their “official statements.”

“That’s all we’re saying. If you speak officially, you let everybody know who the hell you’re speaking for,” she said. “So, I don’t think there’s going to be any change.”

Hanabusa predicted that the new rule will not affect the ability of Iwasa or any other legislative appointee to speak publicly.

“She can do whatever she wants, she can continue to speak, continue to write, do whatever she wants to do. We’re not interfering in her rights or her freedom of speech, we’re not doing any of that. All we’re saying is she is different than the rest of us who are appointed by the city,” Hanabusa said.

Iwasa has already been excluded since last year from executive sessions of the HART board because she has declined to sign a confidentiality agreement that was required by the board.

Iwasa said her understanding is violating the confidentiality agreement carries potential criminal penalties, and she cannot risk inadvertently violating any such agreement by, for example, downloading an email that includes confidential material.

The new proposed HART rules require all new city and state appointees to sign confidentiality agreements.

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