If at first you don’t succeed because of the rules, do you redouble your efforts to meet the rules? Or do you change the rules so you can meet them?
HART, the Honolulu transportation agency, has just done the latter.
In August, we wrote about some difficulty HART was having in mustering a quorum and gathering the necessary votes to get things passed. The problem came up as an unintended side effect of 2017 bailout legislation that empowered the speaker of the House and the president of the Senate to each appoint two non-voting members to the HART governing board, whether or not the rest of HART wanted them there. It turned out that a neighborhood board quorum and voting provision that was incorporated by reference appeared to require eight “yes” votes for anything to pass, although there were only nine voting members.
An eight-“yes”-voting requirement made it tough to get anything done, especially when voting members who weren’t able to show up were deemed to be voting “no.”
In July, when Hoyt Zia took the chair of HART, he announced that things would be changing. Six votes would be enough, just as it was prior to the 2017 bailout.
A Sept. 23, 2021 memorandum from the City &County’s Department of Corporation Counsel published by Civil Beat tells us why.
The memo relies on a passage in Article VIII, section 2 of the Hawai‘i Constitution. It says: “Charter provisions with respect to a political subdivision’s executive, legislative and administrative structure and organization shall be superior to statutory provisions, subject to the authority of the Legislature to enact general laws allocating and reallocating powers and functions.”
This “home rule” provision is generally supposed to prevent the state from messing with the internal organization of a county. The state can enact laws specifying what all the counties can and can’t do (these are “general laws”), but it’s not supposed to single a county out and, say, change the composition of its legislative body.
That, the memo says, is exactly what happened. The memo concludes that the state did not have the power under the Hawai‘i Constitution to provide for four extra HART board members. Thus, we can basically ignore the extra folks and conduct business as if they weren’t around.
Reaction from the State Capitol, specifically House Speaker Scott Saiki, was sharp: “The HART board needs to be careful,” he is quoted as saying. “If they proceed with a modified quorum, it could potentially invalidate the decisions that they make.” And, further: “If the city feels that the Legislature has overstepped by appointing these four members, then the city should decline any further state funding,” Saiki said.
Translation of these comments: “You like beef?” Or, for those not versed in our local pidgin English, “Put up your dukes!”
This sure looks like it’s not going to end well unless both sides go back to their corners and work things out. HART isn’t objecting to the four extra members and is fine with letting them attend closed sessions. “Their participation is valuable at this time,” said HART’s current Chair Colleen Hanabusa. That would seem to dovetail with the role that the state wanted for them — to oversee and give input, not gum up the process for getting things done.
The best solution, however, is for the vote issue to be sorted out at the next legislative session so that HART regains the ability to function and doesn’t have to stick its thumb in the Legislature’s eye.
Tom Yamachika is president of the Tax Foundation of Hawai‘i.