Hawai\u02bbi law provides for an unusual \u2013 in Hawai\u02bbi, at least \u2013 process to select members of the state Commission on Water Resource Management. A special four-person committee considers applicants for vacancies on the commission. Two of them are named by the governor, one by the Speaker of the House, the fourth by the president of the Senate. No qualifications needed, and no public announcement of the members.<\/p>\n\n\n\n
This committee then interviews candidates for the vacancy and selects at least three names to forward to the governor, who selects his nominee from that list.<\/p>\n\n\n\n
The meetings of the nominating committee are public, after a fashion. But the interviews it conducts with applicants are carried out in the open only if the applicant agrees.<\/p>\n\n\n\n
This year, the ending of the term of commissioner Neil Hannahs in June put the process on full display. Hannahs held the seat reserved for a person knowledgeable about traditional and customary rights exercised by \u201cdescendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778.\u201d <\/p>\n\n\n\n
With Hannah\u2019s departure, the governor needed to fill this seat, whose occupant is often referred to as loea in Hawaiian. A nominating committee interviewed candidates in late January and early February, eventually coming up with a list of four people deemed qualified for the position: Hannah Springer, a respected Hawaiian cultural practitioner, Lori Buchanan, a longtime community activist from Moloka\u02bbi, Makahiapo Cashman, on the staff of the University of Hawai\u02bbi School of Hawaiian Knowledge and an expert taro farmer, and Kimo Falconer, a former Pioneer Mill supervisor who now runs a coffee plantation on Maui.<\/p>\n\n\n\n
Hannahs left CWRM on June 17, by which time Green still had not selected a replacement from the list given him earlier in the year. Then two of the four people on the list dropped out. <\/p>\n\n\n\n
Instead of selecting one of the remaining two candidates to occupy the loea seat, Green restarted the selection process de novo, stating that he needed at least three people on the list of candidates.<\/p>\n\n\n\n
The move was harshly criticized by dozens of organizations, but the process went forward. Applications were due in September, with three of the four candidates on the original list once again throwing their hats into the ring: Cashman, Springer, and Buchanan.<\/p>\n\n\n\n
The fourth candidate on the February list submitted to Green \u2013 Falconer \u2013 didn\u2019t reapply. Instead, he turned up as one of the two members of the new nominating committee appointed by Green. (The other members were Donna Kiyosaki, a civil engineer and one-term CWRM commissioner, appointed by Green; Tim Johns, a former CWRM chair, appointed by Sen. Ron Kouchi, and Summer Kaiawe, attorney with Watanabe Ing, appointed by Rep. Scott Saiki. Both Kiyosaki and Kaiawe were appointed to the earlier nominating committee that presented the governor with the first list of candidates.)<\/p>\n\n\n\n
The committee met on October 21 and 22 to interview 10 applicants. Even before the meeting started, one applicant withdrew \u2013 Moses Haia, an attorney who for years worked with the Native Hawaiian Legal Corporation. On the first day the committee met, another candidate \u2013 \u201cCandidate A\u201d \u2013 didn\u2019t show up for the interview.<\/p>\n\n\n\n
Of the 10 candidates listed on the committee\u2019s agenda, just six had names associated with them. In addition to Buchanan and Springer, there were Lani Eckart-Dodd, Dana Okano, Cashman, and Haia. <\/p>\n\n\n\n
The list of persons whose names were forwarded to Green has not been made public.<\/p>\n\n\n\n
But among them must have been one of the unnamed candidates: V.R. Hinano Rodrigues, until recently the head of the State Historic Preservation Division\u2019s History and Cultural Branch. On October 29, Green issued a press release announcing his appointment, praising Rodrigues\u2019s \u201cexceptional communication and conflict resolution skills.\u201d<\/p>\n\n\n\n
\u2018Privacy Concerns\u2019<\/strong><\/p>\n\n\n\n Deputy Attorney General Colin Lau advised both nominating committees. At the outset, he gave members a brief overview of the rules they needed to observe, including, he said, the state Sunshine Law.<\/p>\n\n\n\n As Lau explained it, if an applicant wished to be interviewed in private, the committee would need to vote to go into executive session, citing to Chapter 92-5(a)(2). This provision in the Sunshine Law spells out one of the few exceptions to open meetings, relating specifically to privacy concerns. Under this exception, boards or commissions may close meetings to the public \u201cto consider the hire, evaluation, dismissal, or discipline of an officer or employee.\u201d<\/p>\n\n\n\n Lau went so far as to provide the committee with what he described as \u201cmagic words\u201d \u2014 a script with the precise language of the statute that the committee would need to include in a motion to enter into executive session in order to comply with the Sunshine Law.<\/p>\n\n\n\n But the Sunshine Law privacy exception that Lau cited to only applies to officers or employees of public agencies. It does not extend to volunteers, as five of the seven CWRM members are. As described in Chapter 174C, the statute that established the commission, the appointed members \u201cshall serve without compensation.\u201d<\/p>\n\n\n\n In fact, the Office of Information Practices issued a formal opinion in 2005 as to the ability of non-employees to enjoy shelter under the privacy exclusion of Chapter 92. That opinion, involving appointments made by the Kaua\u02bbi mayor to county boards, found that \u201cbecause an individual nominated to a board or commission will not be serving for pay or compensation, a nominee cannot be considered a \u2018hire\u2019 for purposes of invoking the exemption in Section 92-5(a)(2).\u201d (See OIP opinion No. 05-04.)<\/p>\n\n\n\n That same opinion mentions the salutary effect that public vetting of candidates for boards and commissions can have, referring to an opinion letter the OIP issued in 1991 (Op. Ltr. No. 91-8). Any privacy interest \u201cis outweighed by the public interest in application information concerning successful applicants or nominees because such information \u2018sheds light upon the composition, conduct, and potential conflicts of interest of government board and commission members.\u2019\u201d The quote is taken from the Chapter 92F-14(b)(4).<\/p>\n\n\n\n As subsequent events showed, shedding light on potential conflicts of information during the vetting process would almost certainly have been a healthy thing.<\/p>\n\n\n\n Process Concerns<\/strong><\/p>\n\n\n\n The issue of the closed-door interviews of candidates was raised soon after the first nominating committee met.<\/p>\n\n\n\n On February 18, the Honolulu Star-Advertiser<\/em> carried an opinion piece submitted by Kekai Keahi, Ke\u02bbeaumoku Kapu, and Archie Kalepa, all of them involved in protecting water resources on Maui.<\/p>\n\n\n\n \u201cAt this moment, a nominating committee is evaluating more than a dozen applications to fill this crucial seat on the Water Commission,\u201d they wrote. \u201cIt concerns us that the nominating committee itself lacks significant expertise in Native Hawaiian water management practices and has not truly engaged the public in the evaluation process. The committee has not disclosed the names of any potential nominees and the majority of the interviews have been held in executive session, outside of the public eye.<\/p>\n\n\n\n \u201cThe committee has asked for public testimony, but we cannot provide meaningful input when we do not know the identities or qualifications of those being considered for this crucial seat.\u201d<\/p>\n\n\n\n In April, with no selection having been made, the three made another appeal to the governor via an op-ed carried in the Star-Advertiser<\/em> of April 25. \u201cWe implore the governor and Senate to confirm a loea who will set Lahaina and Hawai\u02bbi on a path toward true healing and recovery,\u201d they wrote. By this time, the names of candidates forwarded to the governor had been made public. Three of them \u2013 Springer, Buchanan, and Cashman \u2013 were described in the article as loea, experts in Hawaiian custom and tradition. Falconer\u2019s name was conspicuous by its absence.<\/p>\n\n\n\n \u201cPlease move past politicking so that our people can focus on healing,\u201d they urged the governor. \u201cWe deserve at least that. Ola i ka wai!\u201d<\/p>\n\n\n\n Time passed. Hannahs\u2019 term expired. And still no appointment was made. <\/p>\n\n\n\n At the Hawai\u02bbi Conservation Conference in late July, Kapua Sproat, a University of Hawai\u02bbi Richardson School of Law professor and director of Ka Huli Ao Center for Excellence in Native Hawaiian Law raised the issue.<\/p>\n\n\n\n On August 5, Leina\u02bbala Ley, an attorney with Earthjustice, wrote Green and Dawn Chang, CWRM chair, urging the immediate appointment of any one of three people on the list: Buchanan, Springer, or Cashman. She reminded them that the loea seat \u201cserves important dual functions, providing technical expertise to the commission as well as an important mode of community outreach and trust-building.\u201d She even raised the prospect of legal action to force Green to make a selection, reminding him that this is a non-discretionary duty.<\/p>\n\n\n\n \u201cUnfortunately, the Green administration is currently at risk of a mandamus action compelling appointment because the Native Hawaiian Practitioner seat is unfilled and the administration has not taken any action to make an appointment in the five plus months since the nominating committee finalized its list,\u201d she wrote.<\/p>\n\n\n\n By August 14, Green had reinitiated the nominating process. Concern over his reasons for doing so grew, to the point that a letter signed by more than 70 individuals and groups urged him either to select \u201cone of the remaining, highly qualified applicants presented by the nominating committee in February,\u201d or, if the selection process \u201cmust be restarted, ensure that members of the nominating committee themselves possess sufficient knowledge of Native Hawaiian water rights and practices \u2026 to adequately assess whether applicants for this loea seat meet the letter and spirit of the statutory requirements for this appointment, and solicit advice from community leaders and organizations.\u201d Signing onto the letter were organizations ranging, alphabetically, from ACLU Hawai\u02bbi to Wisdom Circles Oceania and 350 Hawai\u02bbi.<\/p>\n\n\n\n Green was unmoved. The nominating committee met October 21 and 22.<\/p>\n\n\n\n The Meetings<\/strong><\/p>\n\n\n\n One of the first members of the public to testify was Marti Townsend, regional engagement specialist for the Mid-Pacific office of Earthjustice. <\/p>\n\n\n\n \u201cThe convening of this second nominating committee \u2026 has no basis in law,\u201d she stated. \u201cThe statute is clear. The nominating committee must deliver a list of at least three candidates to the governor, which it did in February. \u2026<\/p>\n\n\n\n \u201cFor no reason, the governor did not name a nominee at that time. He waited nine months. No explanation. No action.<\/p>\n\n\n\n \u201cAt some point in this inexcusably long delay, two candidates withdrew their names from consideration and instead of fixing this problem and immediately choosing a nominee from this list, Governor Green instead convened this nominating committee \u2014 you all \u2014 to compile a new list, presumably with candidates more to his liking.<\/p>\n\n\n\n \u201cOutrageous! This is political gamesmanship over our water. Even if the governor has the purest intentions, his decisions to one, claim that the candidates list is stale and then, two, convene this new nominating committee sets an extremely dangerous precedent. Any future governor can now point to this very meeting today as an example and justification for tossing a properly promulgated list of candidates for the Water Commission and starting the whole process over again.<\/p>\n\n\n\n \u201cMy concern is heightened by the fact that James Falconer is now on this nominating committee when he was previously a candidate on the February list. I don\u2019t understand how this can be okay. It does not meet the expectations of the public.<\/p>\n\n\n\n \u201cIt looks, it smells like a sham. \u2026<\/p>\n\n\n\n \u201cPlease don\u2019t do this. Do not be complicit in this slow-motion undermining of our Water Code,\u201d she said.<\/p>\n\n\n\n Immediately following Townsend\u2019s testimony, the committee entered into executive session to consult with its attorney, Lau. Lau had left the meeting room immediately after his instructions to the committee, saying he would be available for consultation if they had any questions.<\/p>\n\n\n\n Two and a half hours later, the committee was back in session, apparently having never been able during that time to reach Lau.<\/p>\n\n\n\n Johns, who had been selected as the committee\u2019s chair, asked Falconer if he had anything to say. He declined.<\/p>\n\n\n\n Johns then stated, \u201cI\u2019m going to assume we\u2019re legal.\u201d<\/p>\n\n\n\n Of the three candidates whose interviews were set for that day, only two \u2013 Eckart-Dodd and Candidate B \u2013 were questioned by the committee, with just Eckart-Dodd agreeing to have her interview be in open session.<\/p>\n\n\n\n The following day, the committee interviewed Buchanan, Okano, and Cashman. Then two students from Ke Kula Kaiapuni \u02bbo Kekaulike on Maui were allowed to testify.<\/p>\n\n\n\n Both Bella Kualani and Kalima Garcia spoke out against the reconvening of the nominating committee,<\/p>\n\n\n\n Kualani specifically called out the appointment of Falconer, whom she said was an unsuitable choice. \u201cAre you educated with Hawaiian knowledge to rightfully choose a nominee for the loea position?\u201d she asked him.<\/p>\n\n\n\n \u201cI believe not. Mr. Falconer \u2026 has a long legacy of going against traditional Hawaiian management in Lahaina. He was the last luna of Pioneer Mill and now owns Maui Grown Coffee, which diverts water from Maui Komohana streams and many taro farmers. \u2026<\/p>\n\n\n\n Referring to his inclusion on the list of four nominees selected in February, she asked whether this wouldn\u2019t be a conflict of interest, to give him the power to choose the next loea.<\/p>\n\n\n\n Garcia noted that she and her classmates had written to the governor, asking him to appoint someone from the original list. \u201cWe spoke about this at the Native Hawaiian Convention. Clearly Governor Green has not listened to our concerns.\u201d<\/p>\n\n\n\n \u201cDo what is pono. Select a true loea,\u201d she urged the committee.<\/p>\n\n\n\n On October 29, Green announced his selection as loea: V.R. Hinano Rodrigues.<\/p>\n\n\n\n \u2014 Patricia Tummon<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" Hawaiʻi law provides for an unusual – in Hawaiʻi, at least – process to select members of the state Commission on Water Resource Management. A special four-person committee considers applicants for vacancies on the commission. 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