Tag Archives: Honolulu rail project

Public disclosure of rail contract poses early test for incoming Mayor Carlisle’s administration

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It appears Honolulu city officials are still trying to keep transit contracts under wraps, and the issue poses an immediate test of incoming mayor Peter Carlisle campaign commitment to transparency in his administration.

Honolulu attorney David Kimo Frankel offered up this account of his attempts to examine the first large construction contract.

In August 2010, I asked Councilmember Kobayashi’s office if they would be able to obtain electronic copies of all the construction contracts entered into for the rail project. She wrote a letter on August 30, 2010 asking for these contracts.

In response, City Transportation Services Director Wayne Yoshioka wrote that “the first contract is available for viewing by the public at the Purchasing Division of BFS. . . . As a courtesy, your information request for copies of the above contracts on behalf of a member of the public has been forwarded to the Director of the Department of Budget and Fiscal Services.”

Today (October 5, 2010), I visited the Purchasing Division of BFS to review the $482.9 million design-build contract for construction awarded to Kiewit Pacific Company on October 21, 2009. Initially, three people attempted to get me to provide my name. I refused because I know the law does not require that members of the public provide a name. I explained that I was an attorney and I knew the law. Staff members and finally a member of the corporation counsel’s office told me that they would not make the contract available to me that day.

First, they required 10 days advanced notice despite the fact that (1) the City Charter does not allow a government agency to delay providing documents; (2) the Department was informed by September 21, 2010 that members of the public wished to view the document; and (3) the City Transportation Services Director said that the contract “is available for viewing by the public at the Purchasing Division of BFS.”

Second, they said that the contract includes personal information, which is a ridiculous claim. While an individual’s social security is entitled to protection, corporations do not have an expectation of privacy that their EINs are confidential.

The Law

The Honolulu City Charter, section 13-105 provides in clear terms: “All books and records of the city shall be open to the inspection of any citizen at any time during business hours.”

The City Charter’s requirement is an independent source of ensuring that government records are open to the public.

The Uniform Information Practices Act is an additional level of protection of the public’s right to information. HRS § 92F-11 provides in pertinent part:

(a) All government records are open to public inspection unless access is restricted or closed by law.

(b) Except as provided in section 92F-13, each agency upon request by any person shall make government records available for inspection and copying during regular business hours.

HRS § 92F-12(a) provides in pertinent part:

Any other provision in this chapter to the contrary notwithstanding, each agency shall make available for public inspection and duplication during regular business hours: . . .

(3) Government purchasing information, including all bid results, except to the extent prohibited by section 92F-13;

What will Mayor Carlisle do about this? We’ll soon see.

Problems in State Historic Preservation Division could impact city’s proposed rail project

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A devastatingly critical report detailing chronic problems in the State Historic Preservation Division warns that continued mismanagement and financial constraints facing the office could cause economically significant delays in major projects that must meet federal standards for protection of historic and cultural resources.

Department of Defense construction projects, as well as other large federally funded projects like Honolulu’s proposed rail system, are at risk of being snared by ongoing turmoil within the state office, the report notes.

The report, prepared by the National Park Service, warns that federal grants that underwrite SHPD staff and programs will be cut off if the state is unable to comply with a list of recommended changes. This would, in turn, result in further staff cuts and the inability of the office to contribute to meeting the requirements of federal law.

The loss of HPF grant funds and corresponding loss of staff would create great uncertainty in how government agencies operating in Hawaii would comply with Federal and State laws, and would cause serious delays in economic stimulus projects that will have measurable benefits for Hawaii’s economy. Without an approved State Historic Preservation Program, the availability of Federal assistance provided through the SHPO would be restricted or unavailable to the citizens and property owners of Hawaii. A lack or shortage of qualified SHPO staff would be very likely to cause delays in properties being nominated to the National Register of Historic Places, which would adversely affect the eligibility of these properties for Federal and State historic preservation tax incentives, and/or for historic preservation grant programs, including the Save America’s Treasures grant program. A further lack or shortage of qualified SHPO staff would cause delays in compliance reviews required by Section 106 of the National Historic Preservation Act, which would drive up the costs of many Federally assisted construction projects funded by other Departments of the Federal Government. The absence of some of these services, for example, the review of Federal undertakings, would seriously and negatively impact the ability of Hawaii to benefit from many other programs of Federal assistance. [emphasis added]

News reports this week focused on the threatened cut-off of federal funding if a long list of recommendations, some dating back to a 2002 audit, are not successfully implemented within two years. But the economic cost to the state of delays in major projects could dwarf the immediate lost of federal grants that currently support historic preservation functions.

Preparation of the report was supported in part by the Army, which provided funding for a National Park Service staff person who was assigned to SHPD and assisted in writing the report.

See:

Hawaii historic preservation agency may lose critical funding, Honolulu Advertiser, 3/25/2010

Crunch Time, Honolulu Star-Bulletin, 3/25/2010

Another nibble or two at the rail issue

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Interesting little rail item in today’s Advertiser story by Sean Hao (“Honolulu rail project will have to pick up tab for airport route fix“).

Hao reports the city used an outdated plan when designing the airport route.

The airport layout plan used by the city for its analysis was drafted in the mid-1990s and had not been updated to reflect subsequent changes in runway protection zones, Morioka said.

“The city was using the older version that is currently in existence,” Morioka said. “It did reflect an RPZ — runway protection zone — of a thousand feet, but my understanding is … the FAA had made the change to the RPZ requirements for the larger aircraft to 1,700 feet back in 1994 or 1997.”

What isn’t clear is whether the state has been using the outdated plan and made it available to the city’s contractors, or whether the city simply dusted off and reused its Fasi-era rail plan, which would have been written before the changes in those FAA requirements.

I suspect it’s the latter, and reflects the same limitation on design that has prevented the city from ever considering modern light rail, which has also changed substantially since 1990.

Two other rail-related items of note.

I was nosing around in the database of Congressional earmarks and noted that the federal funding for the city’s rail project to date appear to have come from earmarks. The database at LegiStorm.com lists $65 million in earmarks for Honolulu’s rail project over the past three budget years. While this shows the current clout of Hawaii’s senior senator, it does not reflect an ongoing competitive advantage for the Honolulu plan once it has to compete on a level playing field with other projects.

Finally, back on the question of what happened to the light rail alternative…The analysis of alternatives included a screening memo, which was to identify a number of potential alternatives meeting general criteria which deserved further study, and then a final alternatives report after those alternatives were whittled down to a few meeting the criteria for final consideration.

When I looked at the question of alternatives, I had looked at my notes and saw one report was filed in October and the other in November, and subsequently referred to them as being issued a month apart.

But take a closer look.

The Final Alternatives Screening Memorandum, prepared by Parsons Brinckerhoff for the City and County of Honolulu, was dated October 24, 2006. The Alternatives Analysis Report, also prepared by PB, was dated just a week later, November 1, 2006.

These two documents were dated a week apart, not a month, as I had initially thought. Given their size, this suggests they were prepared in parallel, not in series, and the findings of one did not serve as the starting point and initial basis for the other. Instead, it appears, the conclusions were predetermined and the two assessments were written at the same time.

In such a set-up, the light rail alternative was just squeezed out of sight and out of mind.

City managing director responds on HPR, and Legislature tries another route to undermine legal reviews of the rail EIS

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We were just a couple of blocks from home on the last leg of yesterday’s early morning walk when a friend stopped her car and rolled down the window.

She was laughing.

“You’re being quoted on public radio right now!”

It was a surprise to me. It was late afternoon before I learned that Honolulu Managing Director and mayoral candidate, Kirk Caldwell, apparently felt he had to respond to my commentary on rail broadcast last week. For those who missed it, my original can be found here.

Frankly, I didn’t hear anything in Caldwell’s generalities to change my mind. But I guess it shows this discussion is being taken seriously.

Then I got a surprise when Hawaii’s Thousand Friends, the public interest environmental and land use planning organization, pointed out that a bill to expedite county processing of permits is being touted as a way to force quick approval of the city’s as yet unpublished EIS for the rail project.

HB 2434, introduced by House Speaker Calvin Say “by request”, started out as what looked like a straightforward proposal to require the other counties to adopt the kind of “third party approval” system that Honolulu has already adopted. It would allow a contractor waiting for a building permit, for example, to hire a private party to review plans and certify that they meet city requirements. This private review is in lieu of action by the county.

The bill also added relatively short deadlines for processing of permits and “other approvals” by the state and counties. If not processed by the 30-45 day deadlines, and without regard to the scope of the proposed action or complexity of the issues raised, applications would be automatically approved.

The automatic approval provisions are extremely broad. Now we know why.

House Standing Committee Report 486 puts the rail issue front and center.

Your Committee finds that while this bill will facilitate all types of construction jobs, its most immediate impact will be to expedite construction of Honolulu rail, which is shovel-ready and will generate jobs and assist local businesses by pouring federal monies into our economy.

The bill has been set for a Friday morning joint hearing before the Senate Committee on Water, Land, Agriculture, and Hawaiian Affairs, chaired by Sen. Clayton Hee, and the Committee on Transportation, International and Intergovernmental Affairs, chaired by Sen. Kalani English.

More information on HB2434, including its current status, the house drafts, committee reports, and testimony, can be found on the Capitol web site.