Tag: Robert Klein

OHA Trustees excluded

By: OHA TRUSTEE ROWENA AKANA

Source: July 2010 Ka Wai Ola o OHA Monthly Column

Chair Apoliona goes out of her way to exclude trustees from board discussions.  For example:

DUE DILIGENCE MEETINGS

Back in April, the SEC brought a civil action against Goldman Sachs, one of OHA’s two money managers, because of “a single transaction in 2007 involving two professional institutional investors.”  Goldman assured us that they believe the SEC’s allegations were “completely unfounded both in law and fact,” and that they would vigorously defend themselves.  Every trustee had reason to be deeply concerned since, as of December 31, 2009, Goldman managed $171,649,375 of OHA’s Trust Fund.

On April 20, 2010, Goldman invited OHA to meet with them in New York on May 7, 2010 for an explanation.  Chairperson Apoliona, Trustees Machado and Stender, and CEO Namuo traveled to New York for the meeting.  I did not submit a request to travel so I don’t know if the Chair denied travel for anyone else.

On April 21, 2010, Goldman offered to provide Trustees that could not attend the New York meeting with a “live video conference feed” from their office to our boardroom.  This would allow all of us to at least listen in on the Goldman meeting.

Then suddenly, on April 23, 2010, the OHA Board Counsel cancelled the Goldman videoconference, most likely at the request of the Chairperson.  At the request of Trustee Heen, the Board Counsel wrote a legal opinion to explain his position.  The Board Counsel felt that, since Goldman refused to allow the video conference to be viewed by the public in an open meeting, OHA would end up breaking the Sunshine Law.  Since none of the trustees I have spoken to have actually seen any communication from Goldman Sachs objecting to an open meeting, I am not convinced that there was such a communication.

There were other ways to allow the trustees to listen in and still stay within the law.  For example, we could have gone into executive session during the “sensitive” portions of the broadcast.  While it wouldn’t have been the most ideal solution, Chair Apoliona has shown in the past that she has no problems taking things into executive session, even when it is not necessary except to keep the public from hearing what is going on.

It is clear to me that this was just a deliberate attempt to keep the majority of the board from hearing what Goldman had to say.  At the time of the writing of this article, there has been NO report to the Board of Trustees from Trustees Apoliona, Stender, or Machado regarding their New York meeting.

SELECTIVE DENIAL

Another example of Chair Apoliona’s selective denial happened back in 2008, when, without even the proper authority, Apoliona denied my travel to South Dakota on official business as a board member of the Governors’ Interstate Indian Council (GIIC).  I am the only non-Indian member of this national organization representing Native Americans and Alaska Natives in all 50 states.  The GIIC has supported OHA’s efforts for federal recognition with five resolutions that have been sent to Congress on our behalf.

WORKSHOPS

On May 4, 2010, the Board Counsel wrote another legal opinion about his decision to deny a Trustee from participating in a Board Workshop on April 22, 2010 by telephone.  The Trustee had been told by the Administration that it wouldn’t be a problem for him to participate over a speaker phone, but that decision was overruled by the Board Counsel, which went against OHA’s longstanding practice of allowing participation via telephone as long as the Trustee did not vote.

KAMEHAMEHA LEI DRAPING CEREMONY

On April 26, 2010, each Trustee received an invitation letter from the Hawai`i State Society of Washington, D.C. to participate in the 2010 Kamehameha Lei draping ceremonies on June 6, 2010.  Trustees have supported and attended the ceremony since 2003; including the historic first ceremony in Emancipation Hall at the new Capitol Visitors Center in 2009.  Despite this, on May 3, 2010, the Chairperson denied travel for all Trustees except for herself and OHA staff members CEO Namuo, COO Stanton Enomoto, and Special Assistant to the CEO Martha Ross.

Meetings were scheduled by the Administration to meet with Federal Officials while in Washington, D.C. – meetings that the Trustees should have attended.  This has become a common practice with this Chair.  Despite this denial, I elected to pay my own way to Washington, D.C. as I had an important meeting scheduled at the White House.

Chairperson Apoliona must stop interfering with our right to represent the beneficiaries that elected us.  Sadly, this has been going on for the last eight years.

OTHER NOTABLE ISSUES:  QUESTIONABLE SPENDING

In a May 3rd e-mail to the Trustees, Chair Apoliona explained that she was denying travel for the 2010 Kamehameha Lei draping in D.C. on June 6th, because of economic reasons, not mentioning that there were also important meetings scheduled with Federal Officials that Trustees should have attended.  Chair Apoliona wrote:

“Since 2009 Trustees have been asked to limit requests for out of state travel due to our downturn in the economy and the impact on OHA resources.  Although there is demonstration of what appears to be an ‘improving’ economy, we all continue to be vigilant and cautious.”  “…even in 2010 we should remain cautious about out of state travel costs and continue to manage out-of-State travel requests prudently.” — OHA Chair Haunani Apoliona

However, the Chair failed to mention that while she was denying Trustees’ travel, three OHA staff members went instead of Trustees.  While in D.C., OHA paid for a reception for 200 people, including entertainment.  How much did this cost our beneficiaries?  What about the “downturn in the economy?”

While I understand her reasons for being “cautious” with our spending during this economic downturn, a quick review of OHA’s recent spending shows that she is at worse a hypocrite and, at best, full of baloney.  For example, at a time when our people are living homeless on beaches, OHA authorized spending the following on June 3, 2010:

  • $100,000 to sponsor a Native Hawaiian men’s health conference in June 2010; and
  • $100,000 to sponsor an International Indigenous Health Conference.  There was no mention of how many Hawaiians were going to be able to attend this Conference.

The Administration also proposed to transfer $421,300 in education grant money to fund a “Continent Community Education” program in Hi’ilei Aloha LLC, a nonprofit that currently manages Waimea Valley.  This program would have given OHA funds to an organization outside of the Trustee’s direct oversight.  Hi’ilei Aloha would then determine who gets to travel to the mainland to educate people about the Akaka bill.  My guess is that her relative, who now works with Hi’ilei Aloha, would be doing most of the traveling, since that was the case when she worked for OHA.  This highly questionable proposal was quickly scuttled after several trustees and I brought up serious concerns at the board table, specifically that this private organization would in fact end up doing the work that OHA Trustees are charged to do.

OHA TOO TOP-HEAVY?

Just about five years ago, OHA’s budget was around $23 million.  Today, OHA’s budget has ballooned to $42,107,095.  A whopping $12,320,998 is spent on salaries and benefits.  Another $7,541,655 is spent on work that is contracted outside of OHA.  Only $1,410,130 is spent on OHA programs to assist our beneficiaries!  What’s up with that?

FALLING THROUGH THE CRACKS

I have always said that OHA’s two committee system allows too many important issues to slip through the cracks.  The system was put into place by Chair Apoliona to consolidate her control over the Board of Trustees.  Since the two committee chairs have to oversee every function of the Board, there are just too many issues for each committee chair to consider and a lot of important issues fall through the cracks.  Things are so bad now that almost nothing is being done by the committees.

The Asset and Resource Management (ARM), chaired by Trustee Stender, meets only twice a month (if there are no sudden cancellations), despite the huge swings in the stock market and the volatile nature of the world economy.  Also, the ARM committee is responsible for evaluating OHA programs and deciding whether to continue, modify, or terminate their funding, but this has not occurred for the past several years.  The State Auditor’s recent report will back this up.

In the past year, the ARM committee has cancelled or rescheduled many meetings, reducing the number of meetings we have in a month.  For example:

  • The August 5, 2009 and September 2, 2009 ARM Committee Meetings were cancelled.
  • The September 23, 2009 meeting was rescheduled to September 22, 2009.  Since there was no quorum for the September 22, 2009 meeting, it was postponed.
  • The ARM Committee meeting scheduled for May 12, 2010 was cancelled.  There were no ARM meetings in all of May 2010.

Since Trustee Stender has chaired the ARM committee, OHA has not taken its budget out into the community as required by law.

The Beneficiary Advocacy and Empowerment (BAE) committee, Chaired by Trustee Colette Machado, is responsible for developing programs which focus on beneficiary health, human services, native rights and education and evaluate all OHA programs to ensure a positive impact on our beneficiaries.  Not only has the BAE Chair failed to develop any new programs, she is actually trying to eliminate them.  Just ask members of the Native Hawaiian Historic Preservation Council (NHHPC).  In fact, since Chairperson Apoliona has chaired the Board and Trustees Machado and Stender have chaired the two Committees, virtually all OHA programs have been discontinued.

Another byproduct of this system is that the active participation of the six other trustees has been cut-off.  The only thing that the other Trustees get to do is vote on whatever is being brought to the board or committee table.  In the past, the five committee system gave the majority of the trustees the responsibility of running a committee.  Today, I believe that the saddest result of the two committee system is that several of the trustees have become apathetic.  They aren’t as interested in board affairs since they are not consulted about any subject matters prior to a meeting.  Chair Apoliona has also acquiesced trustees’ power to the CEO, which further exacerbates the problem.

Chair Apoliona always likes to say that OHA has never been better.  There is no truth to that statement.  There was a time when Trustees were passionate about the issues near and dear to their hearts; worked tirelessly to improve the lives of our beneficiaries; and when the moral of our employees were at its best.  Let us look for change in the November elections.  Aloha pumehana.

Hawaiians’ Court Victories Could be Short-Lived

By: Trustee Rowena Akana
March 14, 1997

Source: Star Bulletin Viewpoint

Bills before Legislature attempt to reverse gains by Hawaiians

Two recent rulings, one from the Hawaii Supreme Court and the other from a Circuit Court, almost convinced Hawaiians that justice is alive and well in our islands.

I am referring to Public Access Shore Hawaii v. County of Hawaii Planning Commission, or the PASH decision, in which Judge Robert Klein held that our “legitimate traditional and customary practices must be protected,” and to OHA v. State of Hawaii in which Judge Dan Heely defined an augmented basis for OHA’s ceded lands revenues. And I say almost convinced us because of two bills recently referred out of committee this legislative session.

The provisions of Senate Bill 8, which would have gutted PASH, are, for this session, history thanks to a massive show of force by the very people the bill’s authors are claiming to benefit. The companion bill in the House had already died in its sleep, Rep. Ed Case, chairman of the Hawaiian Affairs Committee, having decided the better part of valor would be to defer it indefinitely. Then Case, a descendant of missionaries, determined to live up to the injustices perpetrated by his ancestors, got down to the serious business of voiding the Circuit Court decision in OHA v. State of Hawaii, House Bill 2207.

This monstrous piece of legislation, which revokes language in the Constitution, the Admissions Act, and Act 304, begins with a discussion of how wrongheaded Judge Heely was in misreading the Legislature’s intent when he ruled in OHA’s favor. Unlike the bill that would have nullified PASH, this one got no public hearing at all.

Like PASH, however, it is couched in terms of doing a big favor for everyone, especially OHA.

“It is in the public interest,” the measure reads (not to menton Case’s interest given the clientele his law firm represents), “that existing ambiguities be clarified, judicial misinterpretations of legislative intent be corrected, immediate threats to the state’s overall financial condition be mitigated, the ability of the state to carry out its sovereign functions be preserved, and a mechanism for the resolution of all outstanding issues between the state and the Office of Hawaiian Affairs outside of the litigation process and which involves representatives of both be provided.”

Case would pull all that off through a ceded lands inventory compiled in the state’s favor by the Department of Land and Natural Resources, a basis that excludes many lucrative sources of income, fixed income to OHA far below the currently mandated 20 percent of ceded land revenues, among other mechanisms designed ultimately to reduce Hawaiian entitlements.

Case seriously needs a lesson in contemporary U.S history. As a feature of statehood, the lands currently referred to as ceded were conveyed back to the state by the federal government in trust for the Hawaiian people. For some 20 years, the state barely acknowledged its fiduciary duty to us. This pattern of dereliction continued even when the state Constitution was redrafted and state statutes were enacted to provide for partial compliance with this duty.

I emphasize the word partial because the current system provides for the Hawaiian people to receive only a 20 percent share of one type of revenue these lands yields. OHA had to take the state to court to obtain a modicum of compliance with a duty ignored since 1959. Now it not only balks at obeying a subsequent court order, but wants to overturn it after the fact — not through any process of appeals but by providing that House Bill 2207 be applied to the judge’s decision retroactively.

The law does not look favorably on retroactivity and Case, in spite of his concern that future meetings between the state and OHA take place somewhere other than in court, fully expects OHA to challenge this bill. The bill’s unbelievably amateurish Section 10 seems to presume we will be successful in our attack since it starts off with the clause, “Even if the retroactive effect is held invalid…” The bill then goes on to provide that its statement of the intent of Act 304 is correct no matter what.

In other words, it remains retroactive even if a court says it’s not. While I happen to agree with Case that OHA will prevail in any challenge (including to Section 10), I believe that its most vulnerable feature is not its retroactivity but its fundamental injustice.

But don’t expect House Bill 2207 to die quietly. House Speaker Joe Souki is behind it and so is Calvin Say, Chairman of the House Finance Committee, whose committee members, for the most part, couldn’t be bothered with the hearing on this bill. This is a bill that saw the light of day for one reason: The state cannot pay OHA because it has been squandering the money meant for the Hawaiian people.

If ours were a private trust, instead of a public one, such irresponsibility would not be tolerated. Imagine a well intentioned uncle setting up a trust for his nieces and nephews with their stepfather authorized to administer it. Not a court in the country would allow the stepfather to reduce payments to his beneficiaries while he used their trust income to pay his own expenses as well as the debts he ran up living beyond his means.

Our stepfather/state is just as outrageous, if not worse “I can’t pay you,” the state is trying to tell us, “because I spent all my money and yours, too.” House Bill 2207 must be killed.

Rowena Akana is an at-large trustee of the Office of Hawaiian Affairs. The opinions in View Point columns are the authors’ and are not necessarily shared by the Star Bulletin.