 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 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 ten-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 ten-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 house and two more by the Senate. After the bill was signed into law and became Act 1 of the 2017 First Special Session, 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 eleventh 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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 The Time Tax
This week we reflect on a piece in “The Atlantic” that argues quite persuasively that your government not only taxes people by taking their money, but also imposes administrative burdens that waste countless precious hours of people’s time. “The issue,” the article says, “is not that modern life comes with paperwork hassles. The issue is that American benefit programs are, as a whole, difficult and sometimes impossible for everyday citizens to use. Our public policy is crafted from red tape, entangling millions of people who are struggling to find a job, failing to feed their kids, sliding into poverty, or managing a disabling health condition.” Our own recent struggles with the unemployment system here in Hawaii illustrate this phenomenon. Hawaii Public Radio did an October 2020 story on “Thousands still waiting action on unemployment claims,” One person profiled in the story described the processes of applying for unemployment benefits as a “full-time job.” Civil Beat’s Denby Fawcett told the story of one claimant who called the unemployment office 22 times only to be put on hold for an hour when the person who answered said she needed to consult with her supervisor. The Atlantic argues that some of this difficulty is by design. Gov. Ron DeSantis of Florida said as much: “Having studied how [the system] was internally constructed … it was, 'Let's put as many kind of pointless roadblocks along the way, so people just say, oh, the hell with it, I'm not going to do that,' …. It was definitely done in a way to lead to the least number of claims being paid out.” The unemployment office is not the only government agency imposing a time tax on their so-called customers. One of our articles in 2015 profiled our Department of Taxation. Tax is not a simple subject, but it nevertheless operates on a “you figure it out” model as well. When people call in for help, at that time there was a more than 50% chance that their call would not be answered, at all. In fiscal 2020, the Department’s call answer rate crept up to 82%, basically answering five out of six calls (irrespective of waiting time, which wasn’t discussed in the report). At the same time, published guidance by the Department remains scarce, so it is still difficult for taxpayers to search for information to resolve their own problems. No article on the time tax in Hawaii would be complete without mention of the obscene length of time that Native Hawaiian beneficiaries remain on the waitlist for lease awards of Hawaiian homestead land. Some have been on the waitlist for decades and some have died on the waitlist. Kalima v. State, a 2020 decision by the Hawaii Supreme Court, decided that the State breached trust obligations and needed to pay damages to those on the waitlist. Hopefully this case will lead to some mitigation of the time tax. Nationally, the Atlantic argues, the time tax is regressive. It falls most heavily on the poor, the less educated, the ethnic minorities. It might be imposed unwittingly. Legislatures pass laws that are carefully drawn to benefit the “right” people, such as those hit by the pandemic. Agencies implementing the laws want to weed out the fraudsters and the liars, and those otherwise not worthy of the benefits. As a result, claimants, assuming they find out about the benefit at all, face an uphill battle in applying for it between navigating through complex qualification requirements and trying to get the application through an agency that is more focused on having a claimant run the gauntlet than in cooperating to get that claimant the benefits allowed by law. Here in Hawaii, we can and should do better. We need benefits laws that are easy to understand and make sense of. We need agencies that execute the laws to educate the public clearly and thoroughly on what is required to participate. Our agencies should be reasonably responsive to the public. We the taxpayers are not just pigs clamoring around the feeding trough and shouldn’t be treated as such. Overall, lawmakers need to be aware of the time tax and what it does to their constituents. Once they do, maybe they can help make the system better.  A Policy Statement About Fines
This week we are taking up as a new and noteworthy development Bill 17 being considered by the Honolulu City Council. That bill would give the city’s Department of Planning and Permitting a clear pathway to enforcing fines that the Department imposed by allowing the Department to record liens against the property that the fines concern, and then to foreclose on the liens like a mortgage company would if a mortgage was in default. Except that the Department doesn’t really want to do that stuff. Department Director Uchida was recently quoted in the Star-Advertiser. “The problem is to go the next step to put a lien on the property and actually foreclose, you got to go to the court system,” he said. “[Corporation] Counsel is understaffed, we’re understaffed, so everything gets bogged down there.” The Department has the authority under current law to slap liens on property and foreclose them. Yet, some properties have unpaid fines totaling more than $150,000, or fines that have remained unpaid for more than five years. If the Department has been acting like a toothless tiger all this time although it certainly had the teeth, why do lawmakers think that this bill is going to cause any significant change? “The purpose of Bill 17 is to make a policy statement that you need to address noncompliance with the housing code, specifically public nuisances, and that at a certain point the department must act,” said Tommy Waters, council chair and introducer of Bill 17. But it seems that the problem might not be something this bill can solve. If a CEO of a normal company told the Board of Directors that the staff were too busy to collect unpaid money that its customers owed, and that the unpaid receivables on occasion exceeded $150,000 per customer or were outstanding for five years or more, that CEO wouldn’t have that job for much longer. Even if the CEO was a really talented subject matter expert, there are just some basic competencies that just have to be there so that the business can survive. The same is true even in government. The basic competencies need to be there, although perhaps for different reasons. Here, we want our agencies to deter bad behavior by enforcing fines and penalties. If it were well known that penalties weren’t being enforced, there’s a good chance that bad actors would ignore the penalties, continue to act badly, and maybe encourage others to do the same. Lawmakers sometimes overlook these basic facts. To solve the problem here, there needs to be a change in the underlying mentality. Enacting a bill as a “policy statement” can’t be expected to accomplish much. Something else needs to be done. Perhaps the Council should consider requiring the Department to turn over its seriously unpaid fine cases to its property tax collectors. Those folks record liens and do foreclosure suits all the time and don’t complain about doing them. By the way, current law already allows the fines to be added to other debts the taxpayer might owe, including property taxes, so it would not be a serious crimp in the system to have the Department fork them over to the property tax folks. Save the policy statements for the campaign trail – if we want to go forward with this, we need thoughtful action. |
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