THE TAX MAN: Have we unwittingly put the brakes on HART?

Lately, the news about HART, the body governing Honolulu’s largest-ever public-works project, has been focused on one of the nine voting members. That member‘s term is coming to an end, and the news is focusing on Mayor Rick Blangiardi‘s choice to replace him.

What you might not have seen is the difficulty the HART (Honolulu Area Rapid Transit) board is having making decisions.

HART was created in 2016, when the county’s voters approved a City Charter amendment establishing it. City Charter section 17-104 provides for a 10-member board, consisting of nine voting members and one non-voting member.

That section also incorporated section 13-103, which applied the rules governing other city boards and commissions to HART as well.

One of the rules in 13-103 says: “The affirmative vote of a majority of the entire membership shall be necessary to take any action, and such action shall be made at a meeting open to the public.”

But that language means whenever they take a vote, we assume that everybody who doesn’t vote “yes,” including people who can’t attend the meeting, are voting “no.”

With a 10-member board, that means we need six members to vote “yes” for anything to pass.

Then, along came 2017. As part of the state‘s bailout of HART, the state added four more non-voting members to the HART board. Two would be appointed by the state House and two more by the state Senate. After the bill was signed into law and became Act 1 of the 2017 first special sSession, HART had a 14-member board. That means we now need eight members to vote “yes” for anything to pass.

Another of the rules in section 13-103 of the charter is that a “majority of the members shall constitute a quorum.” A quorum is the number of members needed to have a valid meeting. By the same logic, a quorum of HART was six members before the 2017 legislation, and eight members after it.

Recall, however, that there are only nine voting members. Two of them are the city director of transportation services and the state director of transportation, presumably very busy folks. If one of them can’t attend a meeting, a unanimous vote of the others is required to do anything. If two of them can’t attend, nothing can pass. “Obtaining nine votes,” one voting member testified in February, “has proven difficult for the board to obtain quorum to hold a board meeting and proven very difficult to obtain a decision on any matter in front of the board.”

It’s questionable whether the state, in putting four observers on the HART board, intended to change the voting dynamics drastically in this way.

But, according to the city’s corporation counsel, that was the effect. (Lawmakers please note: One reason why you get as much public comment as you can on a bill you are considering is that some public commenters will see chain-reaction consequences like this one so the bill can be refined to weed out unintended consequences.

Adding new material to bills at the 11th hour, after the time has passed for public comment, can and does lead to problems.)

Some bills in this past legislative session aimed to fix the problem — HB 1288 and SB 998. Neither survived this session, but one or the other might be reintroduced next year.

A fix is needed to keep our HART board up and running. Hopefully, there will be a reasonable chance of passage in the coming session once the pandemic and the damage it has done to our economy are not the all-consuming problems as they seemed to be in the 2020 and 2021 legislative sessions.

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Tom Yamachika is president of the Tax Foundation of Hawai‘i.

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