Judge to decide PUC appointee Gorak’s fate

Whether Tom Gorak will continue in his position as a member of the Public Utilities Commission is up to Judge Edwin Nacino of the Hawaii First Circuit Court, following a hearing Thursday on a challenge to Gov. David Ige’s appointment.

Former PUC Chairwoman Mina Morita filed a complaint against Ige’s appointment of Gorak, alleging Gorak has no legal right to hold the position and seeking to remove him.

Ige appointed Gorak as an interim member of the commission to take over for Mike Champley, whose term expired June 30. The appointment came just two weeks before the PUC announced its decision to reject Florida-based NextEra Energy Inc.’s $4.3 billion offer to purchase Hawaiian Electric Industries Inc.

Morita argued that Ige should have let Champley remain in office until a new commissioner could be confirmed by the state Senate.

“There is no evidence before the court that any governor in the history of statehood has done what this governor has done with this one appointment,” said Mark Bennett, Morita’s attorney.

Morita claims there was no vacancy available for Gorak to fill because Champley was entitled to hold his position, despite his term ending, until a new commissioner is “appointed and qualified.”

Hawaii State Statute 269-2 says, “The governor shall designate a member to be chairperson of the commission. Each member shall hold office until the member’s successor is appointed and qualified.”

The issue boils down to how “qualified” is defined. If it means confirmed by the Senate, then Gorak was not qualified. If it means qualified to hold the post, Gorak would likely meet that test.

Morita’s complaint is based on the fact that Gorak has not been confirmed by the state Senate. The Legislature adjourned in May and will reconvene in January.

“The governor could have sent up the name during session, and if the person would have been confirmed, they would have taken office July 1,” Bennett said.

John Molay, the attorney representing Gorak, said that Gorak is qualified to hold the position because he meets the experience qualifications to be a PUC commissioner. Gorak, 64, has 40 years of experience as an attorney — 37 of those years specializing in energy. He had served as chief counsel to the PUC for about three years prior to his appointment as commissioner.

“The statute means just what it says,” Molay said. “The word should have been ‘confirmed,’ not ‘qualified.’”

The June appointment created much controversy as Ige’s move to appoint Gorak came days before the three-member panel was expected to rule on the NextEra case, the most significant case the PUC has decided in years. Champley had been involved in the year-and-a-half-long review of the sale.

Ige said in July 2015 that he was opposed to the sale of HEI to NextEra.

When appointing Gorak, Ige said he wanted a commissioner with views that aligned with his own. Critics have said Ige appointed Gorak to make sure the deal was not approved. Ige denied the change was made to influence the NextEra decision.

Gorak abstained from the PUC ruling in July that ultimately rejected the sale with a 2-0 vote.

State Attorney General Doug Chin said in a formal opinion in July that the Hawaii Constitution authorized Ige to appoint Gorak on an interim basis to the PUC.

The opinion came in response to a letter from Senate President Ron Kouchi (D, Kauai-Niihau) requesting Chin provide a formal opinion regarding Ige’s authority to appoint Gorak.

The attorney general’s opinion said the governor can fill vacancies in certain public offices under the interim appointments provision in Article V, Section 6 of the Hawaii Constitution.

The formal opinion said Gorak’s appointment lasts only until the Senate considers it when the Legislature is back in session.