Column: OHA has right to attorney-client privilege

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 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, 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? 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.

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.

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.

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

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. 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.

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.

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.”

OHA has fully complied with the request of the auditor for information except for not providing the actual legal advice of its attorney. Until the state auditor follows the law, we will not comply with his request. Native Hawaiians should be concerned, that once again, their needs and rights are being politicized and trampled upon by the state.

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

Brendon Kalei’aina Lee is an Office of Hawaiian Affairs trustee-at-large.