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State: OHA broke Sunshine Law

Updated: 
November 14, 2014 - 8:33am
Corrections: 
This article incorrectly identified Office of Hawaiian Affairs Spokesman Garett Kanemoto. It is the policy of West Hawaii Today to correct promptly any incorrect or misleading information when it is brought to the attention of the newspaper.

The Office of Hawaiian Affairs violated the state Sunshine Law when trustees corresponded by telephone and email before sending a letter to U.S. Secretary of State John Kerry rescinding an earlier letter by Chief Executive Officer Kamanaopono Crabbe.

Then the board violated the law again when it refused to allow public comment before conducting a closed-door session discussing Crabbe’s conduct.

That’s the finding of the state Office of Information Practices in a Nov. 7 opinion responding to a complaint by six Hawaii residents.

“OHA’s argument that the trustees did not actually need to meet to decide on a response to the Crabbe letter because it was void is beside the point,”the opinion states. “OHA did, in fact, poll the trustees to obtain their agreement to send the recession letter, which they all signed.”

OHA has until Nov. 24 to ask OIP for a reconsideration or to appeal directly to court, OIP staff attorney Jennifer Brooks, who wrote the opinion, said Thursday. The complainants, Kaleo Oiwi, Donovan Preza, Robert Freitas Jr., Jim Smith, Tammie Perreira and Nanci Munroe, also have the right to take the matter to court.

“OIP does not have the power to give injunctive relief to void any (actions),” Brooks said. “That lies with the court.”

OHA spokesman Garrett Toguchi said late Thursday that OHA had not yet received the letter and therefore couldn’t comment on it.

Munroe, one of the residents requesting the opinion, called upon OHA to issue a public apology and to rescind its letter rescinding Crabbe’s letter.

“OHA has to own up to that and send Dr. Crabbe and Secretary of State Kerry an apology,” Munroe said. “We want answers to the questions, and they’re trying to sweep it under the rug.”

At issue was a May 5 letter Crabbe sent to Kerry requesting an opinion about Hawaii’s legal status under international law.

Crabbe said he’d attended sessions where political scholars opined that Hawaiians are not an indigenous people of the United States, but rather nationals of an occupied state. He referenced treaties signed by President Grover Cleveland and Queen Liliuokalani in 1893 that obligated the United States to administer Hawaiian law and to restore the government of the Hawaiian Kingdom.

In the letter, Crabbe said the U.S. government had acknowledged the U.S.-backed overthrow of the Hawaii Kingdom in 1893 was illegal.

“First, does the Hawaiian Kingdom, as a sovereign independent state, continue to exist as a subject of international law?” Crabbe asked in the letter. “While I await the opinion from the Office of Legal Counsel, I will be requesting approval from the Trustees of the Office of Hawaiian Affairs that we refrain from pursuing a Native Hawaiian governing entity until we can confirm that the Hawaiian Kingdom, as an independent sovereign state, does not continue to exist under international law and that we, as individuals, have not incurred any criminal liability in this pursuit.”

The OHA Board of Trustees on May 9 wrote its own letter rescinding Crabbe’s letter.

The letter was succinct: “The contents of that letter do not reflect the position of the Board of Trustees of the Office of Hawaiian Affairs or the Office of Hawaiian Affairs. That letter is hereby rescinded.”

On May 14, after a lengthy closed-door session with Crabbe, both sides emerged vowing to move forward despite the dispute. The agenda said there would be an executive session to “consider appropriate action with respect to the conduct of Dr. Crabbe.”

The meeting drew the interest of about 100 would-be testifiers, who were ordered to leave the room as the board went into executive session.

“OHA does not dispute that it denied the public the opportunity to provide oral testimony on the agenda item before the board began its executive session discussion and it argues that the OHA Board could properly discuss the agenda item in question in executive session,” the OIP opinion states. “OHA mistakes the nature of the requesters’ complaint: they do not question the propriety of holding an executive session to discuss Dr. Crabbe’s employment, but rather focus on the OHA Board’s undisputed denial of the public’s ability to provide oral testimony on that subject during the public meeting.”

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