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Senators weigh lawsuit against Gov. Ige over PUC appointment

  • CRAIG T. KOJIMA / CKOJIMA@STARADVERTISER.COM

    Thomas Gorak

State lawmakers are threatening Gov. David Ige with a lawsuit over his decision to replace a utility commissioner before the panel decides whether to allow the Hawaiian Electric-NextEra Energy merger.

Ige said he got permission from the state attorney general to appoint Thomas Gorak to the Public Utilities Commission on Wednesday. But lawmakers say they are mulling legal action because the move was made without Senate confirmation

Gorak, the PUC’s chief counsel, is expected to become a member of the commission today. He’s replacing Michael Champley, whose term expired Thursday.

Senators are questioning the legality of the appointment and have pointed to a state statute that says a member shall hold office until an appointment gets qualified. They say an expiring commissioner would have to stay in the position until the Legislature is back in session to qualify the appointee through Senate confirmation.

“We just want to be sure that anyone who is going to sit on the decision as big as the NextEra decision meets all of the legal requirements,” said Senate president Ron Kouchi. “One remedy is simply to have the courts make a determination.”

Ige maintains that his decision was in line with “the public’s best interest” and that he’s “entitled to make an appointment for July 1.”

The Senate is reviewing an attorney general’s opinion, which said that Ige’s actions were appropriate.

NextEra announced plans to acquire Hawaiian Electric in December 2014. Commission Chairman Randy Iwase previously said the panel is deciding whether Hawaiian Electric and NextEra have proven they can deliver on 18 different issues, including whether the sale is in the best interest of the public and whether NextEra is fit and willing to perform the duties.

Gorak, as a lawyer for the commission, has acted a litigator in the case and has helped write a draft decision that has been under review for nearly two months.

Star-Advertiser staff contributed to this report.

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  • C:ome on SA, your article says “senators” mulling lawsuit on this issue but your article does not identify just who these senators are.
    The only one you mention is Senate President Kochi, so is it just Koichi or are they other senators as your article claims??
    Please do a better job of reporting so your readers can better understand what is going on.

  • You know the bigger question may be-did the PUC delay the final decision on the merger to just a short period after Champley’s term to insure they would have a member more supportive of the governor’s position in the decision mix? Sure seems that way….we’ll probably never know definitively.
    I’m against the merger for a variety of reasons but I think that the whole process is tainted after this development. Just another indication of why people lose faith in their government and institutions….the whole thing smells…

  • the ag is incorrect. the state constitution allows the governor to appoint the commissioner but does not give the gov the power to ignore the hrs (the laws of the state). the word “qualified” does not refer to the appointee’s qualifications but to the process prescribed by hrs. after following hrs, the appointee will then be deemed qualified and can be sworn in and start serving. the ag’s interpretation of qualified is absurd, it is obvious that the gov would appoint someone who he deems qualified, to appoint anyone else would be insane. should we get a new ag?

  • A state statute may say that a member shall hold office until an appointment gets qualified, but I do not believe one can be forced to stay in the position until the Legislature is back in session to qualify the appointee through Senate confirmation. What if one died? The statute seems to be flawed and needs fixing.

  • Here’s the statute (State law): http://www.capitol.hawaii.gov/hrscurrent/Vol05_Ch0261-0319/HRS0269/HRS_0269-0002.htm

    §269-2 Public utilities commission; number, appointment of commissioners, qualifications; compensation; persons having interest in public utilities; authority. (a) There shall be a public utilities commission of three members, to be called commissioners, and who shall be appointed in the manner prescribed in section 26-34, except as otherwise provided in this section. All members shall be appointed for terms of six years each… Each member shall hold office until the member’s successor is appointed and qualified. Section 26-34 shall not apply insofar as it relates to the number of terms and consecutive number of years a member can serve on the commission; provided that no member shall serve more than twelve consecutive years.

    In appointing commissioners, the governor shall select persons who have had experience in accounting, business, engineering, government, finance, law, or other similar fields. The commissioners shall devote full time to their duties as members of the commission and no commissioner shall hold any other public office or other employment during the commissioner’s term of office. No person owning any stock or bonds of any public utility corporation, or having any interest in, or deriving any remuneration from, any public utility shall be appointed a commissioner.

    – – – – – – – – – – – – – – – – – – – – – – – –

    The answer about how to interpret the word “qualified” may be right there.

    The heading of the section includes the word “qualifications.”

    The section includes the list of qualifications: “experience in accounting, business, engineering, government, finance, law…”, not otherwise employed while a commissioner, and not financially involved with public utilities.

    Since there is no other definition provided, the word “qualified” in this section should have the meaning as it would be stated in a dictionary: “having the required qualifications.”

    (If they had meant “confirmed” (by the senate), wouldn’t they have used the term “confirmed”?)

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