MAI KA LUNA HO'OKELE - FROM THE ADMINISTRATOR

Trust and transparency; the best in interest of the beneficiaries

By Clyde Nāmu'o, OHA Adminstrator

On November 1, 2007 the OHA Trustees considered a proposed amendment to their By-laws which would require that all nine Trustees agree to release a decision or information that was discussed in executive session. This proposed amendment was recommended by Board Attorney, Justice Robert Klein. On or around November 9, 2007, I received a very troubling email which stated in part, “On Thursday, November 1, 2007 during the OHA Board of Trustee meeting OHA Chair Apoliona and Administrator Namu'o pushed an amendment pertaining to the OHA Bylaws Article VI forward that will 'gag, suppress, and restrict' OHA Trustees from being transparent and held accountable to respond to beneficiary inquiries.

First, I need to be clear that I had no particular interest in this proposed By-laws amendment. This was an initiative advanced by our Board Attorney Robert Klein, after discussion with the Trustees in executive session. Attorney Klein felt that a rule was necessary to address the possibly disastrous results that might occur if a Trustee took it upon himself or herself to release confidential information without the prior approval of their colleagues. His concern was based on the fact that a similar situation occurred involving the Honolulu City Council, which addressed the situation with a similar rule.

Matters are discussed and decided upon in executive session because they are confidential and must remain confidential as opposed to being recklessly released to the detriment of the OHA Trust. A common reason for taking matters into executive session is for the purpose of receiving privileged legal advice from counsel. When the reason for discussing a matter in executive session no longer exists the matter can be released to the public. These rules are set forth in the State Sunshine Law. Under the existing By-laws, until such time as the information or decision is no longer confidential, no Trustee is permitted to publicly release confidential information received in executive session.

The By-law amendment proposed by Board Counsel has nothing to do with “transparency” and everything to do with protecting the OHA Trust from exposure to third party lawsuits based upon one single Trustee's personal decision to make public confidential information. Confidential communications received in Executive Session are not by definition “transparent”, that is, “available to the public”.

According to the Board Attorney, a waiver rule requiring unanimous consent at least gives each Trustee a responsible role in deciding whether to release to the public otherwise privileged and confidential information. It protects the rights of a minority Trustee to keep his or her discussions private and prevents a tyranny of the majority to the detriment of the OHA Trust. If a single Trustee chooses to make a confidential matter public without the approval of his or her colleagues, that Trustee may be found to be in breach of his or her fiduciary duties and be subject to personal liability. Again, I had little interest in this amendment but I am glad that eight out of nine Trustees voted in favor of passing it, because our job is to protect the OHA Trust in the best interests of its beneficiaries even if it means standing against a single Trustee who would violate the bonds of confidentiality to the Trust's detriment.

I think it is reckless to distribute information which is blatantly false. According to the individual responsible for posting the message, he received a request to post the message “from someone who wanted to remain anonymous”. This is certainly not the courageous thing to do and casts serious doubt on the bona fides and veracity of the unnamed individual. The email goes on to incorrectly characterize the dissemination of small grants (amount less than $25,000) as “…Unfortunately, the current OHA Chair and Administration use the trust to buy political and community favors.” I challenge the author of the email to identify exactly what “favors” have been granted. All grant awards (large and small) are published in OHA's annual grant report. The 2006-2007 report was published last week. Certainly, if I were trying to hide something, there would be no report published.

I have spent 37 years of my career in government service and this message with all of its inaccuracies and innuendos is the most offensive that I have had to review. I would encourage the author to please step forward. If he or she has serious concerns, then raise them publicly, or “transparently”. If the goal is simply to impugn individuals and OHA, then I doubt there will be a response and the instigator of this unseemly message can continue to hide in the weeds.