by Andrew Walden

The Office of Hawaiian Affairs (OHA) July 24 announced a six month postponement of plans to hold elections for delegates to an ‘Aha designed to form a so-called Native Hawaiian government with which either the US or the State can “reestablish” government to government relations.  Their decision was announced four days after Hawai’i Free Press published an expose of OHA’s lack of preparation for the ‘Aha titled: “Tribe? Hawaii’s ‘Other’ State Elections Include Prisoners and Lots of Dead People.”

In the Star-Advertiser’s next-day coverage, the most important paragraphs were numbers 11 and 12:

Trustee Oswald Stender said the trustees made the decision to delay the process behind closed doors in executive session July 8 and then voted Thursday (July 24) to make the action public.

Planning for the convention and the election of delegates had been put on hold anyway, he said, and the six-month delay would not only lead to more education, but allow OHA time to prepare for the effort.

This begs two questions:

Did OHA Trustees lie to the US Department of the Interior about OHA's plans for an ‘Aha?

Did OHA Trustees violate Hawaii’s Sunshine Law at their July 8 Board of Trustees meeting?

The dates are important.

OHA’s DoI testimony—submitted July 15—shows the election of ‘Aha delegates was on the pre-postponement schedule with campaign season set to start August 1.   But according to Stender, OHA Trustees had “made the decision to delay the process” seven days earlier “in executive session July 8.”  Stender also helpfully points out that, “planning for the convention and the election of delegates had been put on hold anyway.”

By lying to the DoI, OHA is apparently violating 18 U.S. Code § 1001, a federal felony for which the guilty can be fined and imprisoned for up to five years.  (Under Hawaii Revised Statutes, §710-1063 Unsworn falsification to authorities, the crime is a misdemeanor.)

Hawaii’s Sunshine Law, HRS 92, doesn’t have the teeth of federal law, but is very specific regarding the legal purposes for executive session; rescheduling public elections is not among them.

OHA Trustees’ agenda for July 8 reads:

II. Executive Session**

A. Consultation with Board Counsel Robert G. Klein, Esq., OHA Consultant Breann S. Nu'uhiwa, Esq., and Staff Attorney John James McMahon, Esq., re: questions and issues pertaining to the Board's powers and duties under its governance initiative. Pursuant to HRS 92-5(a)(4) (via teleconference 10:05 a.m. HST).

B. Consultation with Board Counsel Robert G. Klein, Esq., OHA Consultant Breann S. Nu'uhiwa, Esq., and attorney members of the Native Hawaiian Roll Commission re: questions and issues pertaining to the Board's powers and duties regarding the release of the Act 195 certified roll. Pursuant to HRS 92-5(a)( 4) (via teleconference 11:05 a.m. HST).

Stender told the Star-Advertiser: “trustees made the decision to delay the process behind closed doors in executive session July 8” -- but there is no mention on the agenda of any vote to delay the ‘Aha in the public or executive sessions July 8.

Hilariously, OHA Trustees’ agenda for July 24 reads:

Executive Session**

A. Consultation with Board Counsel Robert G. Klein re: questions and issues pertaining to the BOT's attorney-client privilege with respect to certain motions passed by the BOT. Pursuant to HRS 92-5(a) (4)

Stender said, they “voted Thursday (July 24) to make the action public.”  There is no mention of this on the agenda. It appears that OHA Trustees July 24 first discussed whether keeping a shyster in the room is enough to make OHA’s decision to secretly reschedule two public elections—`Aha delegate elections and a subsequent referendum on governing documents produced by the ‘Aha--legal.

Correcting a Sunshine Law violation is not illegal, but doing it in executive session is yet another violation.

OHA Trustees are already being challenged over Sunshine Law violations which may have occurred in May when Trustees “rescinded” OHA CEO Kamana‘opono Crabbe’s letter to Secretary of State John F Kerry without holding a publicly announced meeting and vote.

Because the rescission letter was apparently sent to Federal officials without being legally approved by a vote of the OHA Trustees it may provide grounds for a separate federal felony prosecution under 18 U.S. Code § 1001. 

With two counts, the total federal incarceration for OHA Trustees could add up to 10 years.

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Sources describe July 8 Executive Session: OHA Trustees Vote to Proceed with ‘Aha in Six Months

May 14, 2014: Did OHA Violate Sunshine Law with Secret Meeting(s) in DC?

OHA’s July 15, 2014 testimony to the US Department of the Interior

Tribe? Hawaii’s ‘Other’ State Elections Include Prisoners and Lots of Dead People