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Wednesday, January 08, 2020
Crooks Cry Racism: Debunking OHA’s Audit Excuses
By Andrew Walden @ 5:16 AM :: 1202 Views :: Ethics, OHA

by Andrew Walden

OHA Trustee Brendon Kalei’aina Lee penned a column in the Star-Advertiser, January 8, 2020, entitled “OHA has right to attorney-client privilege.”

We at Hawai’i Free Press only needed 30 minutes to write this point-by-point rebuttal. 

Yes.  It is that easy to debunk Lee. 

Here is the result with Lee’s commentary indented:

Why is it when Native Hawaiians seek the same rights and protections to which everyone else is entitled, they are called protesters, are deemed uncooperative, or are accused of hiding something (“Beset OHA should comply with audit,” Star-Advertiser, Our View, Jan, 2)?

Why is it every time OHA insiders get caught with their hand in the cookie jar they scream ‘racism’?  Do they really think anybody falls for this trick?

Why is it that state Auditor Les Kondo is contending that Office of Hawaiian Affairs trustees must disclose the advice given to them by their legal counsel before embarking on a complicated financial transaction….

Which transaction? 

Buying in to a politically connected marijuana dispensary proposal

Paying an insider’s rent on a failed store in Waikiki?

Making insiders ‘whole’ for ‘losses’ on Kamana’o Crabbe’s poi mill scam on Kaua'i?

Hiring friends and family to do ‘consulting’?

Buying a $435K Beamer?

Paying out thousands of dollars of beneficiary money to ‘sponsor’ conferences at which Crabbe was ‘invited’ to keynote?

Burning $1.25M on a politically connected geothermal scheme

Sinking $2.7M into an insider’s cacao farm?

Or any of a zillion more just like these….

… even though it is clear that such communications are clearly protected as part of the OHA board’s attorney-client privilege as a matter of longstanding U.S. Supreme Court constitutional law?

Not if you are a Department of the State of Hawaii and the requestor is the State Auditor.

In his “planning phase,” auditor Kondo was countered by OHA Board of Trustees’ attorney, Robert Klein, when he requested the advice provided to the board.

And you, dear reader, are invited to let the possibly self-serving Klein do your thinking for you, just like OHA does. 

In a nearly identical situation to this one, when Honolulu Authority for Rapid Transportation executive-session minutes were requested by Kondo, they refused. Kondo may have objected to that but did the rail audit anyway — yet he is taking an altogether different and unsupportable position here against OHA.

HART is a County agency.  OHA is a State agency.  All State agencies are required to cooperate with the State Auditor.  The only ‘unsupportable position’ is OHA’s.

OHA has already voluntarily disclosed all its discussions and actions to the auditor with the only exception of redacting legal advice and opinion of its attorney. Expecting OHA to disclose the confidential legal opinion rendered to it by its attorney constitutes an overreach by the auditor outside existing legal norms.

Translation: We gave the Auditor what we wanted him to see and hid the rest.  This is the ‘norm’ for OHA.

Section 23-5(1) does say that the state auditor “may examine and inspect all accounts, books, records, files, papers and document and all financial affairs of every department, office, agency and political subdivision.”

Yes it does.  What part of ‘all’ do you not understand? 

Nowhere does it say those entities shall waive all rights and privileges available to them under state and federal law or existing judicial procedures.

Wrong.    What part of ‘all’ do you not understand?  You just quoted it and now you are pretending it doesn’t exist.

For Kondo to conclude that he is being prevented from doing a reputable job because of OHA’s expectation that its attorney-client privilege would be honored is political grandstanding.

How dare he stop us from hiding our criminality!

He is fully empowered to do his job. According to his testimony at the OHA board of trustees (BOT) meeting of July 18, 2019, he has the power to issue subpoenas. OHA has considerably more confidence in a subpoena, which may be reviewed and challenged in court, rather than complying with a fishing expedition being crafted by a rogue state official.

This audit was ‘crafted’ by the Hawaii State Legislature after Legislators  caught OHA lying to them about the progress of the CLA audit.

HB172, which became Act 37 of 2019, makes release of OHA’s $3,292,290 legislative funding for Fiscal Year 2020-21 contingent on the State Auditor completing “a financial and management audit of limited liability companies created and used by the Office of Hawaiian Affairs.” 

The auditor also claims his research is confidential; implying that all information OHA may voluntarily provide, including privileged attorney-client communications, will be protected from third-party requests. By his own admission to the BOT, this is a false statement. If a court ordered him to divulge the information, he would be compelled to produce it. OHA trustees’ concern is if we voluntarily provide privileged attorney-client communications without a subpoena, a future court hearing could conclude that we knowingly waived our attorney-client privilege at our own peril. To do so would be a breach of our fiduciary responsibility to Native Hawaiians.

We are terrified that this material will end up in the hands of the FBI.  We don’t want to go to prison.

As the only sitting trustee that Kondo refused to meet with because I showed up with our BOT attorney, former Hawaii Supreme Court Justice Klein, I find it appalling that Kondo is playing politics with our legislative-appropriated funds that help to better the conditions of Native Hawaiians. When asked whether the rule he was following was statutory or administrative in origin, his reply was neither, but instead “his own personal policy.”

Translation: I found a way to avoid being interviewed on the record for this audit.  Whew!

OHA has fully complied with the request of the auditor for information except for not providing the actual legal advice of its attorney.

OHA has found a way to hide whatever it wants to hide.

Until the state auditor follows the law, we will not comply with his request.

Until the State Auditor lets us hide stuff, we will not comply.

Native Hawaiians should be concerned, that once again, their needs and rights are being politicized and trampled upon by the state.

OHA beneficiaries should be concerned that insiders are robbing them blind.

Maunakea, water rights, iwi kupuna, state auditor Kondo — when will the assault on Native Hawaiians and their rights end?

Why is it every time OHA insiders get caught with their hand in the cookie jar they scream ‘racism’?  Do they really think anybody falls for this trick?

---30---

August, 2019: Trustee Lee: OHA Should be a Center of Influence Peddling

Previous state audit: Millions are given to those who “know how and who to ask.”

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