Ka Wai Ola - Office of Hawaiian Affairs, Volume 13, Number 1, 1 January 1996 — Trustees join to negate deliberate misinformation [ARTICLE]

Trustees join to negate deliberate misinformation

Editor's note: This eolumn was submitied as a joint-effort by trustees Kamali'i, Keale, Akana and Beamer.) The citings of lav. in this article are excerpted from a submittal to the Ethics Commission by trustees Kamali'i and Keale in response to Trustee Sam Kealoha's charges to the Attorney General that the non-50 percent trustees could not use OHA Trust funds to defend themselves against suit. Trustees Akana and Beamer enjoined to inform the beneficiaries with a factual explanation of Kealoha's presumptions. Whoever wrote the petty complaint for Trustee Kealoha was ignorant of the law. Pumehana Libman, retired OHA attorney, clearly elucidates the legal framework.

Dante Carpenter filed suit against those trustees voting for his termination except for Chairman Hee. The Board's Attorney, Sherry Broder, advised the defendant trustees that she could not represent them nor offer any ahematives. Trastees are given no legal ccverage to defend decisions made in the performance of their duties. Needing eounsel, trustees: Akana, Beamer, DeSoto, Kamali'i and Keale voted to appropriate up to $150,000 ($30,000 eaeh if needed ). Carpenter sued the trustees in their individual capacities for damages. Judge Fong dismissed a complaint against State officials in their individual eapaeities, citing that "The court must look beyond the labels attached to the defendants and must consider whether they actually face suit for actions taken outside their official capacity. It was appropriate to retain legal eo.un-

sel as representation for acts taken in the trustees' official capacities. Section 10-4 (4) gives the Board all powers necessary to discharge the duties and responsibilities imposed upon them by the Constitution and law. To then presume that legal assistance is unnecessary or inappropriate when trustees are sued for actions made in the best interests of OHA, is frivolous. TRUSTEES WOULD BE DEREL1CT IN OUR DUTIES. IF WE DID NOT RETAIN COUNSEL TO RESPOND TO THE LAW SUIT FILED. The Blood Quantum of the non-50 percent trustees is irrelevant. Elected OHA trustees ean be of any blood quantum. The law does not state that in order to validate an action taken at a duly eon-

vened meeting, only trustees havmg 50 percent Hawaiian blood are eligible to vote on an issue, particularly where an appropriation of trust funds is involved. Retention of legal counsel is part of the administrative cost of administering a trust. Legal authorities, case law, and the Hawai'i Legislature have recognized the necessity of employing staff, effecting contracts, and retaining lawyers in order for trustees to properly perform and discharge their duties. There is no provision of law that requires officers, staff, or those with whom OHA contracts, to have Hawaiian blood, let alone 50 percent Hawaiian blood. In numerous budget bills, the Hawai'i State Legislature mandated that OHA expend matching funds on wages and fringe benefits for OHA staff. The matching funds referred to are Trust Funds.

A reasonable person would believe that it is necessary to have officers, stalf and legal assistance to administer OHA in order to better the conditions of native Hawaiians, the use of trast funds then for this purpose is consistent with the mandate of federal, state and case law on the subject. The use of the trust funds to "better the conditions of Native Hawaiians" remains open for discretion. No where is "betterment of conditions of native Hawaiians" defined. None of the numerous challenges relating to thc use of trust funds, in the state and federal courts has been successful. In Kepo'o v. Burgess, Plaintiffs attempted to enjoin the trustees from using trust funds to pursue a plebiscite, Judge Milks, recognized that the

Trustees have broad discretion to act where a reasonable person believes an undertaking will better the conditions of Native Hawaiians whieh may or may not be pecuniary benefit; and that the betterment of conditions of Native Hawaiians ean be achieved in many ways. Retaining legal counsel to protect OHA's assets helps to achieve the goal of "betterment of conditions of Native Hawaiians." Mr. Carpenter claimed $30,000 of trust funds for his personal gain. The use of trust funds by the trustees was to protect against the plunder of OHA'S funds threatened by the attitude of 'take what you ean from the trust' and the profound long range institutional damage that cou!d occur by settling for "Nuisance" value that would encourage suits to undermine OHA's Lmaneial stability.