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Saturday, December 14, 2019
OIP Strips Back OHA Censorship
By Andrew Walden @ 8:51 PM :: 1892 Views :: Ethics, First Amendment, OHA

by Andrew Walden

Stripping back deceptive redactions, the State Office of Information Practices (OIP), in a December 11, 2019, letter to Office of Hawaiian Affairs (OHA) board counsel Robert Klein, has deconstructed OHA insiders’ latest gambit in their flagging attempt to silence dissident Trustee Keli’i Akina.

OIP, November 27, 2019, informed Hawai’i Free Press that an alleged “OIP Opinion” cited by Machado, in an interview with the Star-Advertiser November 23, 2019, as justification for re-opening a so-called ‘investigation’ of Akina, “does not exist.”  In a follow-up December 4, 2019, OIP attorney Lorna Aratani reiterated, “OIP has reviewed its files and found no records of providing any opinion or advice setting forth such conclusion.” 

OHA insiders are targeting Akina just as the recently-released CLA audit of OHA and its LLCs shows Akina has been right all along. 

In a December 5, 2019 email to Hawai’i Free Press, OHA Trustee Chair Colette 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.”

The OIP response to that letter, dated December 11, 2019, and cosigned by Aratani and OIP Director Cheryl K Park, exposes a series of deceptive redactions and omissions underlying Klein and Machado’s arguments.

In short, a censored email exchange was used to justify censorship of Akina. 

Klein and Machado blacked out paragraph after paragraph in an effort to make a hypothetical discussion about participation by a recused Trustee appear as if it were an OIP opinion allowing OHA’s Permitted Interaction Group (PIG) to go forward with their investigation of a non-recused Trustee Akina. 

Here are the key excerpts from Aratani and Park’s letter to Klein: 

As reported in the attached article in the Star Advertiser on November 23, 2019, Chairperson Machado allegedly said she "received an opinion from the [OIP] 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."

According to your letter, "there is no question that OHA received email advice from both Ms. Jennifer Brooks and Ms. Liza Canady of OIP that is exactly contrary to the advice you provided Trustee Akina's aide Ms. Maria Calderon in [OIP's] opinion."

For the reasons discussed below, OIP stands by its statement in its Letter to Ms. Calderon that it "found no records of providing any opinion or advice setting forth such conclusion" reportedly attributed to Chairperson Machado.

As reported by Hawai’i Free Press on December 6, 2019 … Chairperson Machado now acknowledges that "[t]his guidance and advice from OIP was obtained through contacting OIP's Attorney of the Day via email and should not be confused with OIP's formal or informal opinion issued and posted to its website."

More importantly, OIP respectfully disagrees with your assertion that  OHA received  email  advice from Ms. Brooks and  Ms. Canady that  "is exactly  contrary to" OIP's advice in the Letter to Ms. Calderon.  Both Ms. Canady's and  Ms. Brooks's AOD advice addressed the issue of the maximum number of board trustees allowed to participate on Permitted Interaction Group (PIG) formed under section 92F- 2.5(b), HRS, to investigate a fellow board trustee. The factual assumptions for their advice solely turned on whether or not a Trustee has recused himself from all discussion and voting, and it made no difference if the Trustee was the subject of an investigation, a complainant, a witness, or someone not involved in the matter being investigated.

This is clear from your own letter quoting Ms. Canady's email dated April 26, 2019 to ORA stating, "if Respondent Trustee openly recuses himself from all discussion and voting, the PIG may proceed with four trustees. The four trustees then would investigate the matter, which would include interviewing and questioning Respondent Trustee." (Emphasis added). Additionally, your letter quotes Ms. Brooks's statement in her July 29, 2019 response to ORA that "we are inclined to think that the Trustee who is the subject of the complaint probably does not count toward quorum and thus wouldn't count towards the PIG's maximum membership." Your letter omitted, however, an important portion of that sentence: "for an issue on which that Trustee has recused himself or herself from discussion or voting[.]" (Emphasis added). Moreover, as Ms. Brooks conversely stated in that email, "assuming the complainant Trustee has not also recused himself or herself from voting and discussion on the matter, then if the PIG wants to talk to the complainant Trustee that Trustee should be part of the PIG's membership and will be counted in determining if the PIG's membership is less than a quorum." (Emphasis added.)

Your letter also omitted Ms. Ho'omanawanui's follow-up email inquiry on April 29, 2014, at 12:14 p.m., seeking "[a] quick clarification" to Ms. Brooks's response earlier that day, which asked: "if the complainant trustee recuses himself or herself from the discussion and voting on the matter, only then the PIG is allowed to talk with the complainant trustee to investigate the matter. Otherwise, the complainant trustee needs to be a PIG member. Is this correct?" Less than an hour later, at 1:04 p.m., Ms. Brooks responded:

If the complainant trustee does not recuse himself or herself, then clearly he or she needs to be part of the PIG for the PIG to be able to talk to him or her as part of its work.

If the complainant trustee does recuse himself or herself, then although OIP doesn't have an opinion addressing that situation, it would be a reasonable good faith interpretation of the law to figure that the complainant trustee wouldn't count toward the "less than a quorum" of members who can serve on the PIG since the intent of that provision is to ensure that less than a majority of voting members are involved in the PIG's discussions outside a meeting. (Emphasis added.)

Your letter also did not include Ms. Ho'omanawanui's May 3, 2019 inquiry, to which Ms. Brooks responded the same day by stating in part:

As I mentioned in response to a previous inquiry, I think there's a fair argument that a recused Trustee who will not take part in the BOT's consideration and vote on alleged Code of Conduct violations would not count when counting noses for the purpose of either the two person permitted interaction [of section 92-2.5(a), HRS] or the permitted interactions (such as section 92-2.5(b), HRS) that are limited to less than a quorum. In other words, if you decided to proceed in that way based on the Trustee's recusal, you'd be acting in good faith. However, you should be aware that this is not something OIP has a previous opinion on, so someone could appeal it to OIP or the courts on the grounds that no permitted interaction applied because there were too many trustees in the discussion, and OIP or the court would have to take a close look at the arguments on either side and make the call at that time.

So based on that, I would say that OHA could in good faith decide to have the Chairperson and Vice chairperson and a Trustee all discuss alleged Code of Conduct violations by the Trustee as to which the Trustee has recused himself or herself from considering and voting as part of the BOT, on the theory that the recused Trustee is not counted for purposes of the Sunshine Law's permitted interactions or for quorum on that specific issue; but that the action could still be subject to challenge and I cannot say for certain which way a court or an OIP decision on appeal would go. (Emphasis added.)

Thus, the key factual emphasis in Ms. Canady's and Ms. Brooks's AOD advice to OHA was whether or not the Trustee has been recused from discussion and voting as a board member, not whether the Trustee is the subject of an investigation or the complainant. My AOD advice to Ms. Calderon of Trustee Akina's office assumed that the Trustee had not been recused from the BOT's discussions and voting, as the Star Advertiser article reported that Trustee Akina had actively participated in the board's discussions of the investigatory PIG's recommendations…. 

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