OHA’s challenge to open-meetings ruling lacks merit

Created by the 1978 state Constitutional Convention, the Office of Hawaiian Affairs is a public trust and state agency — that’s a fact, albeit one that might not sit well among a growing number of Hawaiian sovereigntists. And as a state agency operating with state employees and funds, OHA must abide by the state’s Sunshine Law, or "open meetings law," as do other state entities.

So it is concerning that OHA is contesting a two-pronged ruling by the Office of Information Practices (OIP) that aims to keep OHA discussions in the open as well as accessible to the public.

OHA’s Dec. 5 appeal in Circuit Court of OIP’s Nov. 7 ruling is the first test of a law that went into effect January 2013. This case has ramifications for how other state agencies operate; for the sake of good, open government, it is imperative that OIP’s finding be upheld.

The OIP ruling found that OHA trustees violated the Sunshine Law on two recent occasions:

» On May 5, OHA CEO Kamanao Crabbe unilaterally sent a letter to U.S. Secretary of State John Kerry, asking for legal clarification of Native Hawaiians’ status in federal eyes. Alarmed, OHA trustees, fearing that the agency’s nation-building efforts would be affected, quickly sent a letter to Kerry rescinding Crabbe’s memo.

Consequently, six Hawaii residents complained that the Sunshine Law had been violated when OHA trustees phoned and emailed each other and were polled about sending their letter — essentially conducting board business without a properly noticed meeting. The OIP agreed.

» A second violation occurred, OIP further found, when OHA’s board did not allow public testimony before meeting on May 19 to discuss Crabbe’s conduct. About 100 people, including would-be testifiers, were asked to leave the room before a closed-door executive session was held. In a precedent-setting opinion, OIP rightly ruled that because the law requires boards to "afford all interested persons an opportunity to present oral testimony on any agenda item" — with no exception for executive-session items — the public has the right to present testimony on executive-session items.

On both these fronts, OIP’s rulings of violation against OHA set the correct bar — a standard for open government that includes, not excludes, public input. Indeed, all interested members of the public should have the right to present testimony on any agenda item, even if the actual item is discussed behind closed doors, as is generally allowed in strict personnel and litigation matters.

In fact, an applicable situation might well be unfolding on the city level, at the Honolulu Police Commission, which on Wednesday went into executive session over personnel matters with Police Chief Louis Kealoha. The police commission rightly allowed for public testimony. But, if OHA prevails in its OIP contest, that would embolden other agencies to wholly shut out the public when it comes to executive sessions.

The 2013 law that created this process to appeal OIP rulings also restored most of OIP’s authority by setting a high standard of judicial review. This standard correctly requires the courts to defer to OIP’s decisions mandating disclosure and openness unless OIP’s determinations are found to be "palpably erroneous."

As for OHA: It’s clear that there are wide-ranging opinions in the Native Hawaiian community about the path foward on self-determination and sovereignty. That’s why it is more crucial than ever for stakeholders who want to be part of OHA’s process to have access to that process.

In assuming chairmanship of OHA on Dec. 9, trustee Robert K. Lindsey Jr. said the board on his watch will always work on behalf of the best interests of OHA’s beneficiaries. Given that, it’s jarring that the first order of business under new leadership is to challenge OIP’s solid ruling that seeks to keep OHA’s business transparent. The Sunshine Law, via OIP, must keep the workings of OHA, and other state agencies, as open as possible.