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Friday, December 06, 2019
OIP: OHA’s PIG is a Dead Duck
By Andrew Walden @ 11:58 PM :: 2471 Views :: Ethics, First Amendment, OHA

by Andrew Walden  (UPDATE Dec 6, 2019)

Responding to questions about the reopening of OHA Trustees "investigation" of Trustee Kelii Akina and OHA Trustee Chair Colette Machado’s imaginary “OIP Opinion” making it possible–the Office of Information Practices (OIP) has issued a non-imaginary opinion which “conclude(s) that the Trustees assigned to the PIG cannot interview the Trustee who is not assigned to the PIG.”

The OIP, November 27, 2019, informed Hawai’i Free Press that the alleged “OIP Opinion” cited by Machado, “does not exist.”  In today’s letter, OIP attorney Lorna Aratani reiterates, “OIP has reviewed its files and found no records of providing any opinion or advice setting forth such conclusion.  OIP is sending a copy of this letter to Chair Machado for her information.”

In complaints filed by OHA Trustee Robert Lindsey, Akina is being targeted for his criticism of OHA’s evasive response to recent and ongoing audits.

Ironically, the long-awaited CLA audit of OHA's LLCs was also released December 4, 2019.

Trustees formed a so-called Permitted Interaction Group (PIG) to ‘investigate’ Akina’s exercise of free speech.  But in a one-paragraph November 7, 2019, ‘report’ to OHA Trustees, the PIG declared:

The Permitted Interaction Group met on September 27, 2019. After reviewing the complaint against Trustee Akina the PIG finds that Trustee Akina made misleading and untrue statements with regard to the CLA audit. Given that the BOT has no recourse for disciplinary action against a Trustee at this time the PIG considers this matter closed.

It is unclear whether the PIG met with Lindsey, but Akina says they never met with him.  At their November 21, 2019, meeting, Akina pointed out the PIG has not outlined to him the alleged “misleading and untrue statements with regard to the CLA audit.” 

Akina called on Trustees to delete the phrase, but they instead voted to reopen the investigation.

Today’s “informal” OIP opinion seems to put an end to the "reopened" investigation.  OIP explains:

OIP's initial inclination is to informally conclude that the Trustees assigned to the PIG cannot interview the Trustee who is not assigned to the PIG. OIP
reached this tentative informal conclusion in light of its opinion in OIP Opinion Letter No. 08-01 addressing a similar issue of whether the members of the Maui County Council, who were not assigned to a Council committee (Non-members), can attend that Committee's meeting. In this opinion, OIP explained:

When Non-Members attend a committee meeting, however, the ensuing discussion is no longer exclusively a discussion between the committee members of committee business. Rather, it becomes a discussion of the parent board's business between these members as parent board members because neither Non-Members nor committee members may take off their parent board "hats" when the discussion of parent board business occurs. Thus, this discussion of Council business among Non-members and committee members, who cannot remove their Council member "hats," must not occur outside of a Council meeting where no exception applies.

But there is a solution.  After exploring several hypothetical PIG scenarios, OIP continues:

An alternative to creating a PIG would be to hold the proceedings as a full Board in executive session. The Sunshine Law allows a board to hold a meeting closed to the public "[t]o consider ... charges brought against the officer or employee, where considerations of matters affecting privacy will be involved." HRS § 92-5(a)(2) (2012). If the Board believes that the investigation of Trustee A is a matter affecting Trustee's A's privacy, the Board may interview Trustee A in executive session in consideration of the complaints or charges against him. If Trustee A waives his privacy rights and requests an open meeting under section 92- 5(a)(2), HRS, however, the Board shall conduct the interview in a meeting open to the public, subject to any other exception that may apply, such as the exception in section 92-5(a)(4), HRS, for consultation with a board's attorney on "questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities." HRS § 92-5(a)(4) (2012).

  *   *   *   *   *

UPDATE -- December 6, 2019

Finally.

Eleven days after Hawai’i Free Press asked OHA Trustee Chair Colette Machado for a copy of the alleged “OIP opinion”, Machado has provided a print-out of an April 26 and 29, 2019 email exchange between a Machado staffer and OIP from which she says, “our understanding derives.”

In response to our query, Machado admits: "This guidance and advice from OIP was obtained through contacting OIPʻs Attorney of the Day via email and should not to be confused with OIPʻs formal or informal opinion issued and posted to its website."

The heavily-redacted emails create more questions than they answer.

UPDATE: The un-redacted emails have been obtained from OIP.  They can be seen HERE.

In an interview with the Star-Advertiser after a November 21, 2019 OHA Board of Trustees meeting, Machado explained:    

The four-trustee panel felt hamstrung in that regard because the state’s Sunshine Law prohibits more than four trustees from meeting in a Permitted Interaction Group setting.

But Machado said OHA received an opinion from the state Office of Information Practices saying it was OK to allow a fifth trustee to appear before the committee, as long as that trustee is the subject of the investigation.

But the email exchange forwarded by Machado occurred three weeks BEFORE the PIG was created, so why was this “guidance” not then cited to allow Akina to speak to the PIG?

Perhaps the reason lies under the redactions.

In an email to Hawai’i Free Press, Machado writes: “Our counsel has sent a letter on my behalf to OIP asking for a retraction of their statement that they have no records of having provided OHA advice on the Sunshine Law issue.”

Three of Machado’s five questions and the OIP answers to those questions are blacked out as are Machado’s opening question or questions in the second email.  But the blackouts didn’t all stick.  Peeling back the second paragraph on the April 29, 2019 email from OIP staff attorney Jennifer Z Brooks to Machado staffer Carol Ho'omanawanui reveals:

“In response to the question in your other email, I agree with you that the various procedures you highlighted seem likely to give rise to a Sunshine Law violation. Whether following those procedures has in fact created a Sunshine Law violation in a specific case is something OIP could determine only with the facts (including the board's position) before it, i.e. as part of an appeal file.”

Now we know 1/6th of what Machado doesn’t want you to see.

After Machado was quoted in the Star-Advertiser, OIP staff attorney Lorna Aratani issued an informal December 4, 2019, opinion which explains: “OIP's initial inclination is to informally conclude that the Trustees assigned to the PIG cannot interview the Trustee who is not assigned to the PIG.”

Interestingly, Machado’s second question indicates that one of the two complaints against Akina came from then-OHA CEO Kamana’o Crabbe.  The other complaint is already known to have come from Crabbe’s top crony on the OHA Board of Trustees—Robert Lindsey.

After a month spent hiding from auditors, Crabbe resigned as OHA CEO June 30, 2019.  On October 28, 2019, Crabbe scored a plum CEO gig at the Kohala Center—where Lindsey likewise serves on the Board of Directors.

---30---

PDF: Redacted Email Exchange 

UPDATE: The un-redacted emails have been obtained from OIP.  They can be seen HERE.

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