*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
17-SEP-2025
08:34 AM
Dkt. 43 OPA
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---ROWENA AKANA,
Petitioner/Respondent-Appellant-Appellant,
vs.
HAWAI‘I STATE ETHICS COMMISSION,
Respondent/Complainant-Appellee-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1CC191000379;
AGENCY CASE NO. COMPL-C-15-00236)
SEPTEMBER 17, 2025
RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, AND DEVENS, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
Under article XIV of our state constitution, the
people of Hawaiʻi hold public officers and employees to “the
highest standards of ethical conduct.” “To keep faith with this
belief,” the legislature and each political subdivision have *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
adopted a code of ethics and established an ethics commission to
apply to their employees, as well as members of boards,
commissions and other bodies, to ensure “the personal integrity
of each individual in government.” Haw. Const. art. XIV. This
case requires us to determine whether the State Ethics Code
(Ethics Code) applies to trustees of the Office of Hawaiian
Affairs (OHA), a semi-autonomous State entity whose mission is
to better the conditions of Native Hawaiians. Absent the
legislature’s designation of OHA as a political subdivision, we
conclude OHA trustees are subject to the Ethics Code and the
Hawai‘i State Ethics Commission (Commission) under Hawaiʻi
Revised Statutes (HRS) chapter 84.
In 2019, the Commission charged Rowena Akana, thentrustee of the Office of Hawaiian Affairs, for violating several
provisions of the Ethics Code related to her spending of trustee
allowance funds and acceptance of paid legal fees from OHA
beneficiary Abigail Kawānanakoa. After a contested case
hearing, the Commission determined Akana violated the fair
treatment, gifts, and gifts reporting provisions of HRS chapter
84, and fined her for those violations. The Circuit Court of
the First Circuit (circuit court), and later the Intermediate
Court of Appeals (ICA), affirmed the Commission’s decision.
Before this court, Akana contests (1) whether the
Commission has jurisdiction over OHA trustees, and (2) whether
2
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
she violated the gifts and gift reporting laws for her
acceptance of legal fees. Akana argues the Commission lacks
jurisdiction to issue charges against OHA trustees because OHA
is a political subdivision that must have its own ethics code
and ethics commission. We disagree.
We hold that OHA is not a political subdivision such
that it requires a separate ethics apparatus and therefore
conclude the Commission had jurisdiction over charges of Ethics
Code violations brought against Akana. Although there is no
conflict here between OHA’s governing laws and the Ethics Code,
we also recognize OHA trustees’ unique responsibilities and
powers to better the conditions of Native Hawaiians, and
therefore require the Commission to defer to OHA bylaws and
policy when considering charges against its trustees.
Because we also conclude the Commission did not err in
determining Akana violated the gifts and gifts reporting laws,
we accordingly affirm the judgment of the ICA.
II. BACKGROUND
A. The Hawaiʻi State Ethics Code and Commission
Promoting public trust in the government and its
officials is a longstanding principle in Hawaiʻi. See Stand.
Comm. Rep. No. 26, in 1 Proceedings of the Constitutional
Convention of Hawaiʻi of 1978, at 565 (1980) (“Hawaiʻi
3
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
established what is generally considered to be the first
comprehensive state ethics code in the nation in 1967.”). In
1968, delegates to the constitutional convention proposed, and
the people of Hawaiʻi later ratified, article XIV requiring
“[t]he legislature and each subdivision [to] adopt a code of
ethics for appointed and elected officers and employees of the
State or the political subdivision, including members of
boards.” Stand. Comm. Rep. No. 44, in 1 Proceedings of the
Constitutional Convention of Hawaiʻi of 1968, at 210 (1973).
The 1968 delegates explained that mandating codes of
ethics for both “the state government and the various counties”
would “guarantee the existence of a code of ethics for all
public employees and officers.” Id. (emphasis added). The
legislature accordingly enacted a comprehensive State Ethics
Code and established the Hawaiʻi State Ethics Commission, which
is now codified in HRS chapter 84. 1972 Haw. Sess. Laws Act
163, at 539-48.
At the 1978 Constitutional Convention, the Committee
on Ethics significantly expanded, and the voters later ratified,
a more robust system of ethics regulation. Stand. Comm. Rep.
No. 26, in 1 Proceedings of the Constitutional Convention of
Hawaiʻi of 1978, at 564-65. Delegates believed “statutory ethics
codes [would] have little meaning if they are not administered
4
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
through independent bodies,” and required that ethics
commissions be established to administer the State and counties’
ethics codes. Id. at 567. 1 In addition to implementing codes of
ethics, delegates noted that the duties of ethics commissions
would include, “investigating possible violations by any state
official, elected or appointed; recommending disciplinary
actions for such violations to the appropriate governmental
subdivisions; [and] registering and regulating lobbyists and
performance other duties as provided by law.” Digest of
Proposals Offered by Delegates, in 1 Proceedings of the
Constitutional Convention of Hawai‘i of 1978, at 924.
Today, in addition to the duties outlined by the
delegates to the 1978 Constitutional Convention, the Commission
renders advisory opinions upon the request of any state
official, considers and adjudicates charges of Ethics Code
violations, and conducts regular trainings for state officials
on matters of ethics. HRS § 84-31 (Supp. 2024) (describing the
duties of the Commission). Notably, this specifically includes
OHA trustees. HRS § 84-42 (Supp. 2024) (mandating the
Commission conduct live ethics trainings for certain state
1 The 1978 amendments to article XIV also specified the minimum components that ethics codes must include, including provisions related to “gifts, confidential information, use of position, contracts with government agencies, post-employment, financial disclosure and lobbyist registration and restriction.” Haw. Const. art. XIV; Stand. Comm. Rep. No. 26, in Proceedings of the Constitutional Convention of Hawaiʻi of 1978, at 567.
5
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
officials, including OHA trustees). The Commission carries out
its duties “so that public confidence in public servants will be
preserved.” HRS ch. 84 Preamble (2012).
Three provisions of the Ethics Code are relevant to
this opinion: (1) the fair treatment law, HRS § 84-13 (2012),
(2) the gifts law, HRS § 84-11 (2012), and (3) the gifts
reporting law, HRS § 84-11.5 (2012). Each provision is to be
“liberally construed to promote high standards of ethical
conduct in state government.” HRS § 84-1 (2012).
The fair treatment law bars legislators and state
employees from “us[ing] or attempt[ing] to use [their] official
position to secure or grant unwarranted privileges, exemptions,
advantages, contracts, or treatment for oneself or others[.]”
HRS § 84-13. This prohibition includes, but is not limited to
the following conduct:
(2) Accepting, receiving, or soliciting compensation or
other consideration for the performance of the
legislator’s or employee’s official duties or
responsibilities except as provided by law.
(3) Using state time, equipment or other facilities for
private business purposes.
(4) Soliciting, selling, or otherwise engaging in a
substantial financial transaction with a subordinate
or a person or business whom the legislator or
employee inspects or supervises in the legislator’s
or employee’s official capacity.
Id.
The gifts and gifts reporting laws concern a state
official’s acceptance of gifts in the performance of their
6
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
official duties. The gifts law outlines the types of prohibited
gifts, and provides:
No legislator or employee shall solicit, accept, or
receive, directly or indirectly, any gift, whether in the
form of money, service, loan, travel, entertainment,
hospitality, thing, or promise, or in any other form, under
circumstances in which it can be reasonably inferred that
the gift is intended to influence the legislator or
employee in the performance of the legislator’s or
employee’s official duties or is intended as a reward for
any official action on the legislator or employee’s part.
HRS § 84-11.
The gifts reporting law, on the other hand, concerns
the public disclosure of gifts. During the relevant period, the
gifts reporting law provided:
(a) Every legislator and employee shall file a gifts
disclosure statement with the state ethics commission on
June 30 of each year if all the following conditions are
met:
(1) The legislator or employee, or spouse or
dependent child of a legislator or employee,
received directly or indirectly from one source
any gift or gifts valued singly or in the
aggregate in excess of $200, whether the gift
is in the form of money, service, goods, or in
any other form;
(2) The source of the gift or gifts have interests
that may be affected by official action or lack
of action by the legislator or employee; and
(3) The gift is not exempted by subsection (d) from
reporting requirements under this subsection.
(b) The report shall cover the period from June 1 of
the preceding calendar year through June 1 of the year of
the report.
(c) The gifts disclosure statement shall contain the
following information:
(1) A description of the gift;
(2) A good faith estimate of the value of the gift;
(3) The date the gift was received; and
7
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
(4) The name of the person, business entity, or
organization from whom, or on behalf of whom,
the gift was received.
HRS § 84-11.5 (2012).
The legislature enacted the gifts reporting law in
1992 “to promote public confidence in our government” and
bolster the Commission’s work to “monitor and prevent any abuse
that may arise in situations involving election campaigns or the
duties and services of a public official.” Conf. Comm. Rep. No.
41, in 1992 House Journal, at 808. Despite the reporting
requirement being a “slight inconvenience,” the legislature
emphasized that filing gift disclosure statements provides a
pathway “to gain redress against acts of abuse committed by our
public officials” and “ensure fairness.” Id.
B. The Role of OHA Trustees
Established in 1978 by constitutional amendment, OHA
is tasked with administering the public trust for Native
Hawaiians. Haw. Const. art. XII, § 5. It is also “the
principle public agency in this State responsible for the
performance, development, and coordination of programs and
activities relating to native Hawaiians and Hawaiians[.]” 2 HRS
§ 10-3(3) (2009).
2 “Where quoted language in this opinion uses ‘native Hawaiian’ or ‘Hawaiian,’ we clarify those references to encompass all Native Hawaiians, which refers to descendants of the indigenous peoples who inhabited the Hawaiian Islands prior to 1778, regardless of blood quantum.” Flores-Case
(continued . . .)
8
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
At the 1978 Constitutional Convention – the same
convention that significantly expanded the ethics regulatory
framework in Hawaiʻi – the Committee on Hawaiian Affairs proposed
“the establishment of an elected board of trustees in order to
provide a receptacle for any funds, land or other resources
earmarked for or belonging to native Hawaiians” and creation of
“a body that could formulate policy relating to all native
Hawaiians and make decisions on the allocation of those assets
belonging to native Hawaiians.” Stand. Comm. Rep. No. 59, in 1
Proceedings of the Constitutional Convention of Hawaiʻi of 1978,
at 644.
The Committee on Hawaiian Affairs underscored the
semi-autonomous status OHA would assume, and envisioned a ninemember board of trustees to ensure that autonomy:
Your Committee is unanimously and strongly of the
opinion that people to whom assets belong should have
control over them. After much deliberation and attention
to testimony from all parts of the State, your Committee
concluded that a board of trustees chosen from among those
who are interested parties would be the best way to insure
proper management and adherence to the needed fiduciary
principles. In order to insure accountability, it was felt
that the board should be composed of elected members.
Id.
ʻOhana v. Univ. of Haw., 153 Hawaiʻi 76, 82 n.10, 526 P.3d 601, 607 n.10 (2023).
9
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
In crafting article XII, section 6, which outlines
the powers of OHA’s board of trustees (Board), the Committee
explained:
Your Committee decided to grant native Hawaiians the
right to determine priorities which will effectuate the
betterment of their condition and welfare by granting to
the board of trustees power to “formulate policy relating
to affairs of native Hawaiians.” Your Committee created
the board of trustees of the Office of Hawaiian Affairs in
the Constitution to insure that it would handle the assets
and financial affairs of native Hawaiians. It is intended
that these powers will include the power to contract, to
accept gifts, grants and other types of financial
assistance and agree to the terms thereof, to hold or
accept legal title to any real or personal property and to
qualify under federal statutes for advantageous loans or
grants, and such other powers as are inherent in an
independent corporate body and applicable to the nature and
purpose of a trust entity for native peoples. These powers
also include the power to accept the transfer of
reparations moneys and land.
Id. at 645 (quoting Haw. Const. art. XII, § 6) (emphasis added).
The following year, in 1979, the legislature
implemented article XII, section 6, in what is now codified in
HRS chapter 10, which outlines the general powers of the office,
HRS § 10-4 (Supp. 2013), and the powers and duties of the ninemember Board, HRS §§ 10-5 (2009), -6 (2009).
C. Factual Background
The Commission charged Akana with 53 counts of
violating the fair treatment, gifts, and gifts reporting
provisions of the Ethics Code. The counts arose from (1)
Akana’s expenditures of trustee allowance funds, and (2) her
acceptance and non-disclosure of legal fees from OHA beneficiary
10
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Kawānanakoa in a lawsuit Akana filed against OHA in both her
official and individual capacities.
1. Trustee allowance fund expenditures
In November 2013, as “part of an effort to enhance the
capacity of Trustees to deal with incidental expenses connected
with Trustee duties,” the Board’s Committee on Asset and
Resource Management recommended, and the full Board later
approved, the creation of the OHA Board of Trustees’ Sponsorship
and Annual Allowance Fund (Trustee Allowance Fund). The Trustee
Allowance Fund was allocated to cover costs associated with
social and charitable functions, travel, registration fees, and
to provide other “support to beneficiaries in their quest for
self-improvement.” It was neither intended to alter trustee
compensation, nor “intended to be used for personal gain by a
Trustee.”
The Board also amended its Executive Policy Manual,
which provided that the “primary control” of the Trustee
Allowance Fund would be the Executive Policy Manual and the
Board’s Operations Manual. Notably, it stated that “secondary
controls” included “ethics and standards of conduct laws
applicable to elected officials, public officers, and state
government employees . . . found in [HRS] Chapter 84.” Upon
approving the Trustee Allowance Fund, the Board directed OHA’s
11
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
CEO to develop internal guidelines and procedures for
administering the funds.
During the relevant period, internal protocol mandated
that at the beginning of each fiscal year, trustees received a
lump sum allowance of $22,200.00 via check, which was typically
deposited into their personal bank accounts. OHA staff then
reviewed receipts and other records of their Trustee Allowance
Fund expenditures on a quarterly basis. If OHA staff determined
that the expenditure was not permitted, it would be “disallowed”
and the balance repaid by the trustee. Expenditures were
generally allowable if there was “some kind of link” that
established the trustee was working with beneficiaries,
constituents, or other partners. However, political
contributions and other expenditures that personally benefitted
the trustees themselves, or their families, were considered
contrary to OHA policy.
At the end of each fiscal year, trustees were required
to refund any unspent allowance funds to OHA. OHA trustees and
staff understood that while administrative staff would conduct
quarterly reviews to help trustees comply with the parameters of
the Trustee Allowance Fund, trustees were ultimately responsible
to ensure their actions did not conflict with OHA policy, their
fiduciary duties, or the law.
12
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
From 2013 through 2017, Akana spent her Trustee
Allowance Fund on a variety of items that later became subject
to an Ethics Commission charge. Expenditures included
membership for the Hawaiian Airlines Premier Club, home cable
television service, food purchases for herself and OHA staff,
and donations to charitable and political organizations.
Some of Akana’s Trustee Allowance Fund expenditures
such as the Hawaiian Airlines Premier Club membership and cable
television service were subsequently “disallowed” by OHA staff
for violating OHA policy. Other items such as food expenses for
staff and political contributions were not expressly
“disallowed” by OHA staff during their quarterly review, but
later found to either personally benefit Akana or be a political
contribution expressly prohibited under OHA policy. 3
2. Acceptance of paid legal fees
From September 2013 through November 2017, Akana was
involved in a lawsuit against the other eight OHA trustees in
their official capacities. Akana filed the lawsuit in her
3 The record indicates that following the 2013 amendments to the Trustee Allowance Fund, the volume of expenditures significantly increased, making it difficult for administrative staff to keep up with gathering detailed records of expenditures from trustees. Several OHA employees also testified that Akana often contested requests for additional information about her Trustee Allowance Fund expenditures and intimidated staff members who made such requests. The Commission later made the unchallenged finding of fact that “the failure to disallow a prohibited expense was a deficiency in the process of reviewing these expenditures” but “the fact that an expenditure was not disallowed does not necessarily mean that the expenditure was allowable pursuant to OHA policy.”
13
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
official and individual capacities, seeking declaratory and
injunctive relief related to beneficiaries’ access to records
related to the Board’s executive session meetings. The other
trustees voted in favor of filing a counterclaim against Akana,
which alleged that she breached her fiduciary duty by disclosing
privileged and confidential information. OHA’s insurance
carrier declined to cover Akana’s attorneys’ fees resulting from
the Board’s counterclaim.
OHA beneficiary Kawānanakoa believed the case involved
important issues warranting her financial support. Through her
attorney, Kawānanakoa offered to pay for Akana’s legal fees,
which Akana accepted. In June 2015, the eight other OHA
trustees prevailed in their counterclaim against Akana when a
court granted their motion for summary judgment. Kawānanakoa
continued to pay Akana’s legal fees until the parties settled
Akana’s lawsuit in November 2017. Between July 2015 and
November 2017, Kawānanakoa paid Akana’s counsel more than
$72,000 in legal fees. 4
4 Kawānanakoa paid Akana’s legal fees on seven occasions: (1) $10,478.52 on July 1, 2015, (2) $9,521.48 on August 10, 2015, (3) $6,000.00 on March 24, 2016, (4) $24,125.50 on April 19, 2016, (5) $447.28 on December 16, 2016, (6) $15,513.15 on April 28, 2017, and (7) $6,000.00 on June 17, 2017.
In June 2017, Akana initially reported to the Commission her acceptance of $15,960.43 in paid legal fees from Kawānanakoa, but did not disclose the date she accepted those fees. Akana eventually filed amended gifts disclosure statements for the July 2015–June 2016 and July 2016–June 2017 periods with the Commission in September 2017, reporting her acceptance
(continued . . .)
14
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
In February 2017, nine months before Akana’s lawsuit
settled, Kawānanakoa filed her own lawsuit seeking declaratory
and injunctive relief to set aside an employment contract
between OHA and its CEO. The lawsuit named OHA, Board
Chairperson Robert K. Lindsey, and CEO Kamanaʻopono Crabbe as
defendants. Akana participated in at least one executive
session meeting of the Board on March 9, 2017, regarding
Kawānanakoa’s lawsuit. While the lawsuit was pending, Akana
continued to accept legal fees paid by Kawānanakoa on two
occasions, totaling more than $21,000. 5
D. Commission Proceedings
On April 19, 2018, Akana was charged with 53 Ethics
Code violations of (1) the fair treatment law, HRS § 84-13, for
certain Trustee Allowance Fund expenditures, and (2) the gifts
and gifts reporting laws, HRS §§ 84-11 and -11.5, related to
Akana’s acceptance of legal fee payments from OHA beneficiary
Kawānanakoa after Kawānanakoa filed a separate lawsuit against
OHA. 6
of seven installments of legal fees payments from Kawānanakoa totaling $72,085.93.
5 Kawānanakoa paid Akana’s legal fees in the amount of (1) $15,513.23 on April 28, 2017, and (2) $6,000.00 on June 17, 2017 after Kawānanakoa filed her February 2017 lawsuit against OHA.
6 As both the adjudicatory body and entity bringing an ethics charge against Akana, the Commission ordered a “firewall” between counsel advising the Commission and counsel presenting the case against Akana. In this opinion, “Commission” refers to the State Ethics Commission in its
(continued . . .)
15
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
In response to the charge, Akana argued the Commission
lacked jurisdiction because it had no authority “over OHA trust
funds with respect to determining the character of and necessity
for Trustee expenditures, and the manner in which they shall be
incurred, allowed, and paid, which authority is reserved for OHA
pursuant to HRS § 10-4.” Akana also contended that payments for
legal fees and costs by Kawānanakoa were not “gifts” because
Akana sued the defendant trustees in her official capacity, and
neither the State nor OHA provided her with the necessary legal
defense.
Prior to conducting a contested case hearing, the
Commission determined it had jurisdiction over the matter. It
concluded Akana, as an OHA trustee, was an “employee” under the
Ethics Code and was thus subject to the Code. The Commission
further emphasized that the charge against Akana did not concern
whether her actions breached her fiduciary duty as an OHA
trustee, rather the charge concerned whether her actions as an
OHA trustee violated the Ethics Code.
The Commission conducted a contested case hearing in
October 2018, where it heard from former OHA administrative
staff, counsel, and Akana. On February 5, 2019, the Commission
entered its Findings of Fact, Conclusions of Law, and Decision
adjudicatory role, while “charge counsel” refers to the State Ethics Commission acting in its charge capacity.
16
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
and Order (Decision and Order), which determined Akana violated
the Ethics Code in 47 of the 53 counts alleged by the charge
counsel. The Commission determined Akana, as a State employee
subject to the State Ethics Code, violated the fair treatment
law for certain Trustee Allowance Fund expenditures, including
Hawaiian Airlines Premier Club membership, cable television
services, and food expenses for OHA staff. It further
determined that, while not all 41 fair treatment law violations
were disallowed by OHA staff, they all violated OHA policy.
The Commission also concluded Akana violated the gifts
law for her acceptance of more than $21,000 in paid legal fees
after Kawānanakoa filed a separate lawsuit against OHA, and
violated the gifts reporting law for failing to timely disclose
her acceptance of more than $50,000 in paid legal fees from
Kawānanakoa in 2015 and 2016.
The Commission fined Akana $23,106.53 for her
violations. Akana appealed the Commission’s Decision and Order
to the circuit court.
E. Appellate Proceedings
The circuit court, 7 and later the ICA in a memorandum
opinion, affirmed the Commission’s Decision and Order,
concluding the Ethics Code applied to Akana and the Commission
7 The Honorable James H. Ashford presided.
17
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
did not err when it determined Akana violated the fair
treatment, gifts, and gifts reporting law in 47 of the 53
counts.
In her application for writ of certiorari, Akana
raises two primary issues: (1) the Commission’s jurisdiction
over OHA trustees, and (2) the applicability of the gifts and
gifts reporting laws to her acceptance of legal fees in a matter
related to her trustee duties. We review each issue in turn.
III. STANDARDS OF REVIEW
A. Administrative Agency Appeals
[W]hen reviewing a determination of an administrative
agency, we first decide whether the legislature granted the
agency discretion to make the determination being reviewed.
If the legislature has granted the agency discretion over a
particular matter, then we review the agency’s action
pursuant to the deferential abuse of discretion standard
(bearing in mind the legislature determines the boundaries
of that discretion). If the legislature has not granted
the agency discretion over a particular matter, then the
agency’s conclusions are subject to de novo review.
Paul’s Elec. Serv., Inc. v. Befitel, 104 Hawai‘i 412, 419–20, 91
P.3d 494, 501–02 (2004).
An agency’s conclusions of law are reviewed de novo, while
an agency’s factual findings are reviewed for clear error.
A conclusion of law that presents mixed questions of fact
and law is reviewed under the clearly erroneous standard
because the conclusion is dependent upon the facts and
circumstances of the particular case.
Del Monte Fresh Produce (Haw.), Inc. v. Int’l Longshore &
Warehouse Union, Local 142, AFL-CIO, 112 Hawai‘i 489, 499, 146
P.3d 1066, 1076 (2006) (internal quotation marks, citations, and
brackets omitted).
18
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
B. Agency Jurisdiction
An administrative agency “may always determine
questions about its own jurisdiction.” HOH Corp. v. Motor
Vehicle Indus. Licensing Bd., Dep’t of Com. & Consumer Affs., 69
Haw. 135, 141, 736 P.2d 1271, 1275 (1987). “The existence of
jurisdiction is a question of law that we review de novo under
the right/wrong standard.” In re Kanahele, 152 Hawaiʻi 501, 509,
526 P.3d 478, 486 (2023) (quoting Lingle v. Haw. Gov’t Emps.
Ass’n, AFSCME, Local 152, 107 Hawai‘i 178, 182, 111 P.3d 587, 591
(2005)).
C. Statutory Interpretation
Statutory interpretation is a question of law
reviewable de novo. Our construction of statutes is guided
by the following principles:
First, the fundamental starting point for statutoryinterpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists.
Panado v. Bd. of Trs., Emps.’ Ret. Sys., 134 Hawaiʻi 1, 10–11,
332 P.3d 144, 153–54 (2014) (internal quotation marks omitted)
(quoting First Ins. Co. of Haw. v. A&B Props., 126 Hawaiʻi 406,
414, 271 P.3d 1165, 1173 (2012)).
19
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
IV. DISCUSSION
The fundamental dispute in this case is the
applicability of the Ethics Code and the Commission’s
jurisdiction over OHA trustees. Akana maintains the Commission
lacks jurisdiction over OHA trustees, and even if it did, her
acceptance of legal fees from Kawānanakoa did not violate the
gifts and gifts reporting laws. We disagree, and hold that
Akana is subject to the Ethics Code and the Commission’s
jurisdiction. We also conclude the Commission did not clearly
err in determining that Akana violated the gifts and gifts
reporting laws.
A. OHA Trustees are Subject to the State Ethics Code and
Commission
Article XII, sections 5 and 6 were painted with broad
strokes, establishing the foundation of a public agency
independent from the executive branch with a unique mandate to
improve the wellbeing of Native Hawaiians. Significantly, it
left the details of OHA’s implementation to be determined by the
legislature. Haw. Const. art. XVIII, § 8 (“The legislature
shall provide for the implementation of the amendments to
Article XII in Sections 5 and 6 on or before the first general
election following ratification of the amendments to Article XII
in Sections 5 and 6.”). The legislature filled in the details
through HRS chapter 10, outlining OHA’s purpose and powers as
20
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
well as providing operational guidelines for its staffing,
budgeting, and compensation.
A plain reading of HRS chapters 10 and 84 and their
legislative histories indicates the legislature’s intent for OHA
trustees to be subject to the Ethics Code and the Commission.
Accordingly, we hold that Akana is subject to the Ethics Code
and oversight by the Commission.
1. The legislature did not designate OHA as a political
subdivision that requires a separate ethics commission
Akana argues for the first time before this court
that, due to OHA’s unique status as a “separate entity
independent of the executive branch,” OHA is a political
subdivision such that it is subject to its own ethics code and
commission. See Haw. Const. art. XIV (“Each code of ethics
shall be administered by a separate ethics commission[.]”). The
Commission, on the other hand, contends that OHA’s governing
laws - article XII, sections 5 and 6, and HRS chapter 10 -differ significantly from the authority given to “political
subdivisions” under article VIII, section 2 of the Hawaiʻi
Constitution. 8
8 Article VIII, section 2 of the Hawaiʻi Constitution provides:
Each political subdivision shall have the power to
frame and adopt a charter for its own self-government
within such limits and under such procedures as may be
provided by general law. Such procedures, however, shall
(continued . . .)
21
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Generally, we do “not consider an issue not raised
below unless justice so requires.” Bitney v. Honolulu Police
Dep’t, 96 Hawaiʻi 243, 251, 30 P.3d 257, 265 (2001) (noting when
deciding whether to address a new issue raised on appeal, the
appellate court must decide “whether consideration of the issue
requires additional facts; whether the resolution of the
question will affect the integrity of the findings of fact of
the trial court; and whether the question is of great public
importance”). Here, justice so requires. Article XIV provides
that “each political subdivision . . . shall adopt a code of
ethics which shall apply to [its] appointed and elected officers
and employees[.]” Accordingly, if OHA were a political
subdivision, it would fall outside the Commission’s jurisdiction
and be required to adopt its own code of ethics to be
administered by a separate ethics commission. Therefore, the
threshold question of whether OHA is a political subdivision is
dispositive to determining the Commission’s jurisdiction over
not require the approval of a charter by a legislative
body.
Charter provisions with respect to a political
subdivision’s executive, legislative and administrative
structure and organization shall be superior to statutory
provisions, subject to the authority of the legislature to
enact general laws allocating and reallocating powers and
functions.
A law may qualify as a general law even though it is
inapplicable to one or more counties by reason of the
provisions of this section.
22
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
OHA trustees. Given the legislative history of OHA’s governing
laws, we hold that OHA is not a political subdivision under
article VIII of the Hawaiʻi Constitution.
Although OHA is uniquely situated as an independent
public entity for the “betterment of conditions of native
Hawaiians,” it does not fit the mold of a political subdivision.
See HRS § 10-1(a) (2009). Under article VIII, section 2,
political subdivisions “have the power to frame and adopt a
charter for [their] own self-government.” While the legislature
has the power to create “other political subdivisions within the
State,” article XII and HRS chapter 10 do not confer such powers
to OHA. See Haw. Const. art. VIII, § 1 (“The legislature shall
create counties, and may create other political subdivisions
within the State, and provide for the government thereof.”). 9
9 Since article VIII was first ratified in 1968, the term “political subdivision” has been used in relation to the counties. See, e.g., Haw. Insurers Council v. Lingle, 120 Hawai‘i 51, 59 n.4, 201 P.3d 564, 572 n.4 (2008) (“‘[P]olitical subdivision’ as it appears in article VIII, section 3 of the Hawai‘i Constitution refers to counties.”) (brackets omitted); Nakano v. Matayoshi, 68 Haw. 140, 144, 706 P.2d 814, 817 (1985) (noting that the County of Hawaiʻi implemented its own ethics code according to article XIV’s mandate “for the adoption of ethics codes consistent with the article by the State’s political subdivisions”).
Akana argues that OHA meets the criteria of a “political subdivision” because (1) the office is a public entity with discretionary power over its administration and funding, and (2) OHA is administered by elected trustees. In doing so, she urges this court to adopt the Fourth Circuit’s “political subdivision” analysis. See Nat’l Lab. Rels. Bd. v. Princeton Mem’l Hosp., 939 F.2d 174, 177-78 (4th Cir. 1991) (holding that entities that are “administered by individuals who are responsible to public officials or to the general electorate” and “demonstrate that its policy-making officials have direct personal accountability to public officials or to the general public” may be classified as a “political subdivision”) (citations and internal quotation marks omitted). We decline to adopt the Fourth Circuit’s
(continued . . .)
23
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Rather than establishing a “political subdivision,”
delegates to the 1978 Constitutional Convention intended OHA to
“assume the status of a state agency” independent from the other
branches of government. Stand. Comm. Rep. No. 59, in 1
Proceedings of the Constitutional Convention of Hawai‘i of 1978,
at 645. As an independent state agency, the 1978 delegates
“unanimously and strongly” were of the “opinion that people to
whom assets belong should have control over them.” Id. at 644.
Therefore, in crafting article XII, section 5, delegates
envisioned that OHA would occupy a “unique and special” semiautonomous status, with an elected board of trustees exercising
maximum control over OHA’s budget and assets. Id. at 645. This
structure, the delegates concluded, would “provide Hawaiians the
right to determine the priorities” to “effectuate the betterment
of their condition and welfare,” while also ensuring
“accountability and opportunity for scrutiny of the trustees.”
Comm. of the Whole Rep. No. 13, in 1 Proceedings of the
Constitutional Convention of Hawai‘i of 1978, at 1018.
The implementation of OHA was largely left to the
legislature, which it undertook the following year in Act 196,
now codified in HRS chapter 10. Haw. Const. art. XVIII, § 8
test here, given article VIII’s clear mandate that the legislature has the authority to create political subdivisions within the State. Haw. Const. art. VIII, § 2. Absent any legislative action expressly designating OHA a “political subdivision,” we decline to expand the political subdivision classification here.
24
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
(“The legislature shall provide for the implementation of the
amendments to Article XII in Sections 5 and 6 on or before the
first general election following ratification of the amendments
to Article XII in Sections 5 and 6.”). Act 196 outlined OHA’s
purpose and trustee powers, and provided operational guidelines
such as staffing, appropriations and budgeting, and
compensation. 1979 Haw. Sess. Laws Act 196, at 398-408.
Notably, the legislature followed through on the 1978
delegates’ expectation that OHA would assume the status of a
state agency. Rather than defining OHA as a “political
subdivision,” the legislature defined OHA as a “body corporate”
and the “principal public agency in the State responsible for
the performance, development, and coordination of programs and
activities relating to native Hawaiians and Hawaiians.” HRS
§§ 10-4, -3(3). This suggests that OHA constitutes an entity
independent from the executive branch yet still under the
umbrella of the State government. 10
10 Although the legislature does not define “body corporate,” Black’s Law Dictionary defines the term as “a group . . . established in accordance with legal rules into a legal or juristic person that has a legal personality distinct from the natural persons who make it up, exists indefinitely apart from them, and has the legal powers that its constitution gives it.” Corporation, Black’s Law Dictionary (12th ed. 2024). This definition appears to encompass OHA’s status as an independent entity with distinct rights and responsibilities under the Hawaiʻi Constitution. “Political subdivision,” on the other hand is defined as “a division of a state that exists primarily to discharge some function of local government,” which does not accurately describe OHA’s duties to administer public trust assets for its Native Hawaiian beneficiaries. See Political Subdivision, Black’s Law Dictionary (12th ed. 2024).
25
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
A plain reading of HRS chapter 84 also indicates the
legislature’s intent that OHA trustees fall under the umbrella
of the Ethics Code and the Commission’s jurisdiction. Chapter
84 expressly mentions OHA trustees in two of its provisions:
first, in mandating that trustees’ financial disclosure
statements be available to the public; and second, in requiring
OHA trustees to complete a live ethics training course. HRS
§§ 84-17(d)(1), -42(a). These provisions would be irrelevant if
the Ethics Code did not apply to OHA trustees.
Further, HRS chapter 84 applies to “every nominated,
appointed, or elected officer, employee, and candidate to
elected office of the State.” HRS § 84-2 (2012). “Employee”
under HRS chapter 84 is defined as “any nominated, appointed, or
elected officer or employee of the State, including members of
boards . . . but excluding legislators, delegates to the
constitutional convention, justices and judges.” HRS § 84-3
(2012). While legislators, judges, and constitutional
convention delegates are expressly excluded from this
definition, OHA trustees are not, suggesting their inclusion as
“employee[s]” under HRS chapter 84. See In re Maui Fire Cases,
155 Hawaiʻi 409, 428, 565 P.3d 754, 773 (2025) (“[I]t is
generally presumed that the legislature acts intentionally and
purposely in the disparate inclusion or exclusion of terms in
its statutes.” (citation omitted)). Thus, given the plain
26
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
language of HRS chapters 10 and 84, we affirm the Commission,
circuit court, and ICA’s conclusions that OHA trustees are
subject to the Ethics Code and oversight by the Commission.
The broader proceedings of the 1968 and 1978
Constitutional Conventions further support this conclusion. At
the 1968 Constitutional Convention, delegates debated at length
about whether a separate ethics code should be carved out for
judges and the counties. See, e.g., Stand. Comm. Rep. No. 44,
in 1 Proceedings of the Constitutional Convention of Hawaiʻi of
1968, at 210 (“Since the judiciary has its own canons of ethics,
the matter of exempting the judicial branch from [the Ethics
Code] was discussed at length.”). Delegates ultimately decided
to insert a provision in article XIV “mandating a code of ethics
for each governmental unit” to “guarantee the existence of a
code of ethics for all public employees and officers.” Id.; see
Haw. Const. art. XIV (“[T]he legislature, each political
subdivision and the constitutional convention shall adopt a code
of ethics which shall apply to appointed and elected officers
and employees of the State or the political subdivision,
respectively.”).
Similarly, at the 1978 Constitutional Convention – the
Convention that resulted in the establishment of OHA – the same
issue of including justices and judges under the Ethics Code was
raised. Again, delegates noted that because judges “have their
27
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
own self-policing canons of ethics,” they are “exempted by the
legislature from the state ethics statute which applies to all
other state officials and employees.” Debates in the Committee
of the Whole on Code of Ethics, in 2 Proceedings of the
Constitutional Convention of Hawaiʻi of 1978, at 35 (1980). Yet,
neither the Hawaiian Affairs Committee nor the Ethics Committee
at the 1978 Constitutional Convention discussed whether OHA
would need its own separate ethics code and body. See generally
Debates in the Committee of the Whole on Hawaiian Affairs, in 2
Proceedings of the Constitutional Convention of Hawaiʻi of 1978,
at 456-62 (debating proposals to establish OHA); Debates in
Committee of the Whole on Code of Ethics, in 2 Proceedings of
the Constitutional Convention of Hawaiʻi of 1978, at 1-38
(debating ethics code proposals). Against the backdrop of the
delegates’ intent that a code of ethics apply to all public
employees and officers, and that a board of trustees governing
structure enhances “decision-making accountability” to its
beneficiaries, this silence suggests that OHA trustees are
subject to the Commission’s jurisdiction and the Ethics Code.
Thus, while OHA was intended to have “maximum
independence” to better the conditions of Native Hawaiians, the
legislature established OHA as a semi-autonomous state agency
rather than a “political subdivision.” Because OHA is not a
“political subdivision” required to adopt its own ethics code
28
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
and establish its own ethics commission, we therefore hold OHA
trustees, including Petitioner Akana, are subject to the Ethics
Code and the Commission’s jurisdiction. 11
2. The Ethics Code does not conflict with Akana’s
fiduciary duties
Citing Boyd v. State Ethics Commission, 138 Hawaiʻi
218, 228, 378 P.3d 934, 944 (2016), Akana argues that even if
OHA is not a political subdivision, she is statutorily exempted
from the Ethics Code because her fiduciary obligations under HRS
chapter 10 conflict with the conduct required of state employees
under the Ethics Code. Akana contends that by establishing OHA
trustees as fiduciaries with the exclusive authority over trust
assets, HRS chapter 10’s “legislative regime” created standards
of conduct for OHA trustees that conflict with the standards of
conduct required under the Ethics Code. We disagree, and hold
that Boyd does not preclude the Commission from exercising its
jurisdiction over Akana.
In Boyd, this court held the conflict of interest
provisions in the Ethics Code did not apply to charter school
employees because a separate statutory scheme required charter
schools to submit a detailed implementation plan containing a
11 Records from the Commission’s training workshop with OHA trustees further support this conclusion. In a 2015 training with the Board, Les Kondo from the Commission emphasized that the Ethics Code applied both to elected trustees and OHA employees when reviewing pertinent standards of conduct such as gifts, gift reporting, and misuse of position.
29
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
conflict of interest policy to the Board of Education, which
served as the basis for the Board of Education to hold charter
schools accountable for their operations, finances, and
management. 138 Hawaiʻi at 226-27, 378 P.3d at 942-43 (citing
HRS §§ 302B-5(d) (2007) (repealed 2012), -6(d)(6) (2007)
(repealed 2012)). Because the statutory scheme did not require
charter schools’ internal conflict of interest policies and
procedures to be consistent with the Ethics Code, we reasoned
that charter school employees “could have been subject to
punishment under one set of standards, but not the other, for
the same conduct.” Id. at 228, 378 P.3d at 944. Thus, we held
the Commission lacked authority to adjudicate proceedings
against the Boyd plaintiff for conflict of interest violations
under the Ethics Code. Id.
The circumstances here differ from those in Boyd.
While the legislature similarly crafted HRS chapter 10 to
provide OHA the “discretion and autonomy to operate
independently and separately” from the Executive Branch, it did
not mandate that OHA establish its own internal procedure and
policies governing trustee conduct. Cf. id. at 226, 378 P.3d at
942 (concluding the legislature enacted a statutory scheme that
required charter schools to establish standards of conduct for
their employees). The legislature also did not require OHA to
30
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
develop gifts or fair treatment policies for its trustees and
employees.
Akana points to HRS §§ 10-4 and -4.5 (2009), which
outline OHA’s general powers and authority over disbursements,
as provisions directly in conflict or inconsistent with the
Ethics Code. She contends that by the legislature conferring
authority to OHA, through its Board, to “take such actions as
may be necessary or appropriate to carry out the powers
conferred upon it by law,” OHA trustees could be in violation of
the Ethics Code for carrying out their fiduciary duties to OHA
beneficiaries. See HRS § 10-4(9).
These HRS chapter 10 provisions, however, broadly
confer the nine-member Board discretionary powers to effectuate
OHA’s work to better the conditions of Native Hawaiians. See
id. HRS § 10-4.5 confers the “office” – not individual trustees
– “the power to make all necessary and appropriate disbursements
of its moneys[.]” HRS § 10-4.5(a). Further, while the Board is
authorized “[t]o determine the character of and necessity for
its obligations and expenditures,” its discretionary power is
“subject to provisions of law specifically applicable to the
office.” HRS § 10-4(3). This includes “bylaws governing the
conduct of its business” such as OHA policy that notes a
“secondary control” of Trustee Allowance Fund expenditures is
the Ethics Code. See HRS § 10-4(1). In other words, these
31
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
provisions do not account for the standards of conduct with
which individual trustees must comply, nor do they provide
trustees unfettered discretion to take individual action the
trustee believes is in furtherance of their fiduciary duties.
We therefore conclude the Board’s discretion under HRS chapter
10 is not inconsistent or in conflict with the Ethics Code and
its regulation of individual state officials’ conduct. See HRS
§ 10-4(9) (authorizing the Board “[t]o take such actions as may
be necessary or appropriate to carry out the power conferred
upon it by law”).
OHA’s internal policy and practices also support the
conclusion that HRS chapter 10 does not conflict with the Ethics
Code. OHA’s Executive Policy Manual, which serves as the
Board’s bylaws, explicitly requires trustees to “abide by the
Standards of Conduct of the State of Hawaiʻi, Chapter 84, Hawaiʻi
Revised Statutes, as amended” and “attend ethics training”
required under chapter 84. See HRS § 84-42(a) (“[T]rustees of
the office of Hawaiian affairs . . . shall complete a live
ethics training course administered by the state ethics
commission within ninety days of taking office and at least once
every four years thereafter.”).
In establishing the Trustee Allowance Fund, the
Board’s Committee on Asset and Resource Management noted that
although the “primary control” for use of the Allowance Fund
32
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
would be the Executive Policy and Board of Trustees Operation
Manuals, “secondary controls” would include “ethics and
standards of conduct laws applicable to elected officials,
public officers, and state government employees . . . found in
Hawaiʻi Revised Statutes Chapter 84.” Moreover, during the
relevant period, OHA policy provided that expenditures of the
Trustee Allowance Fund “may be disallowed because (1) they are
contrary to OHA’s mission to better the conditions of Hawaiians
or (2) it contravenes the [Trustee Allowance Fund] policy or the
law.” 12 (Emphasis added.)
These internal policies and guidance requiring trustee
compliance with both the Ethics Code and furthering OHA’s
mission suggest that the Ethics Code merely sets a floor for
trustee conduct. HRS chapter 10 in turn provides the Board
discretion to establish policies and procedures to ensure
trustees also comply with their fiduciary obligations to OHA
beneficiaries.
12 The record also demonstrates that OHA personnel carried out their work under the assumption that the Ethics Code applied to trustees. In addition to attending in-person ethics trainings and filing public financial disclosures as required under HRS chapter 84, Board members also attended workshops facilitated by their counsel that discussed trustees’ obligations under HRS chapter 84. OHA’s then-corporate counsel also testified that HRS chapter 84 “was totally applicable to office trustees” and recounted the “numerous ways” they took steps to ensure trustees complied with the Ethics Code, primarily through amending the Executive Policy and Board Operations Manuals.
33
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Indeed, government employees are sometimes subject to
stricter standards of conduct that may not otherwise violate the
Ethics Code. E.g., Advisory Opinion No. 1976-241, 1976 WL
452404, at *2 (Haw. Ethics Comm’n Jan. 21, 1976) (opining that
while HRS chapter 84 would not restrict a member of a State
board to participate in decisions relating to proposals made by
his employer, other applicable statutory and case law may impose
more restrictive conflict of interest standards the board member
must follow). In those circumstances, the Commission has
emphasized that HRS chapter 84 “sets a minimum standard of
conduct for state officials and employees.” Informal Advisory
Opinion Nos. 2004-4 Through 2004-15, 2004 WL 7346661, at *2
(Haw. Ethics Comm’n Oct. 20, 2004); see also Advisory Opinion
No. 2017-02, 2017 WL 2694532, at *5 (Haw. Ethics Comm’n Feb. 16,
2017). The Ethics Code similarly “sets a minimum standard of
conduct” for OHA trustees.
3. Akana’s fiduciary obligations do not exempt her from
compliance with the Ethics Code
Akana next contends that because OHA trustee conduct
“can be reviewed only for abuse of discretion,” under Kealoha v.
Machado, 131 Hawaiʻi 62, 77-78, 315 P.3d 213, 228-29 (2013),
courts “cannot interfere with [her] exercise of discretionary
power without first finding a breach of fiduciary duty.”
Therefore, Akana argues, the Commission cannot punish her for
34
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Ethics Code violations because trustee expenditures can only be
reviewed by courts when an OHA beneficiary brings a breach of
fiduciary duty claim.
Akana’s reliance on Kealoha is inapt. There, native
Hawaiian 13 OHA beneficiaries brought a lawsuit under HRS
§ 10-16(c) (2009), 14 alleging the Board members breached their
fiduciary duty by spending funds to support various Hawaiian
causes and organizations without considering blood quantum. 131
Hawaiʻi at 71, 315 P.3d at 222. In determining that a breach of
OHA trustees’ fiduciary duty “occurs when the trustees’ decision
conflicts with the purpose of bettering the conditions of native
Hawaiians,” we held that trustee expenditures “are to be
reviewed for abuse of discretion.” Id. at 77-78, 315 P.3d at
228-29.
When we applied the abuse of discretion standard in
Kealoha, it was a case where OHA beneficiaries brought a breach
of fiduciary duty claim and the expenditures were approved by
13 For purposes of the discussion of Kealoha in this opinion, “native Hawaiian” refers to individuals with at least 50% Hawaiian ancestry while “Hawaiian” refers to individuals with some Hawaiian ancestry, but less than the 50% required to be a native Hawaiian under the Hawaiian Homes Commission Act. Kealoha, 131 Hawaiʻi at 64 n.2, 315 P.3d at 215 n.2; see Hawaiian Homes Commission Act of 1920, Pub. L. 67-34, 42 Stat. 108 § 203 (defining “native Hawaiian” as “any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778”).
14 “In matters of misapplication of funds and resources in breach of fiduciary duty,” HRS § 10-16(c) provided that trustees are “subject to suit brought by any beneficiary of the public trust entrusted upon the office, either through the office of the attorney general or through private counsel.”
35
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
the Board. See id. at 67 nn.14-16, 315 P.3d at 218 nn.14-16.
Unlike Kealoha, the instant case is neither an action for breach
of fiduciary duty under HRS § 10-16(c) nor were Akana’s trustee
expenditures at issue approved by the full Board. Rather, the
instant action was brought as a charge under the Ethics Code and
concerns Akana’s individual conduct and the personal benefits
and conflicts of interest issues it raised. As discussed above
in Part IV.A.1, the plain text and legislative histories of HRS
chapters 10 and 84 do not suggest that the trustees of a state
entity are exempt from the Ethics Code simply because they hold
fiduciary obligations. The Commission correctly notes that
“[t]here is no reason that [OHA] trustee[s’] fiduciary duties
cannot co-exist alongside [their] obligations to act in
accordance with the [Ethics Code].” See Restatement (Third)
Trusts § 76(1) (2007) (“The trustee has a duty to administer the
trust, diligently and in good faith, in accordance with the
terms of the trust and applicable law.”).
We therefore hold that Akana’s role as a trustee does
not exempt her from compliance with HRS chapter 84. Rather, an
Ethics Code charge is a separate cause of action from a breach
of fiduciary duty claim. The former arises from the ethical
obligations Akana owes to the public as a state employee, while
the latter arises from her fiduciary duties to OHA
beneficiaries.
36
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
4. Although Ethics Code violations are separate actions
from breach of fiduciary duty claims, the Commission
should defer to OHA policy
Amicus curiae OHA raises the concern that should the
Commission be able to charge OHA trustees with Ethics Code
violations, “the Commission could, intentionally or not,
influence trustees to act in a way that is in accordance with
the Commission’s expectations but in breach of the trustees’
duty of loyalty to OHA’s beneficiaries[.]” 15 While we conclude
that, as the HRS currently stand, OHA trustees are subject to
the Ethics Code and the Commission’s jurisdiction, we also
recognize that the Board was given broad powers to fulfill the
office’s responsibility to better the conditions of Native
Hawaiians. See HRS § 10-4 (authorizing the Board “[t]o take
such actions as may be necessary or appropriate to carry out the
powers conferred upon it by law,” such as acquiring real
property, entering contracts, issuing revenue bonds, and
determining its own expenditures). As a result, OHA trustees
carry out duties distinct from the responsibilities of other
members of state boards and commissions. See, e.g., HRS
15 OHA, as amicus curiae, argues the Commission lacks jurisdiction over its trustees and urges this court to apply Kealoha’s abuse of discretion standard to individual trustee expenditures. OHA contends that the Commission’s oversight of trustee conduct “may impact or impede OHA and its trustees from fulfilling their duties.” For the reasons discussed above in Part IV.A.3, we decline to apply Kealoha’s abuse of discretion standard to the charge against Akana, and further address OHA’s concerns in the section below.
37
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
§ 10-4(1) (providing the OHA Board the general power “[t]o
adopt, amend, and repeal bylaws governing the conduct of its
business and the performance of the powers and duties granted to
or imposed upon it by law”).
The Commission, in adjudicating Ethics Code charges
against OHA trustees, should consider OHA’s bylaws that
“govern[] the conduct of its business.” See id. Therefore,
where OHA policy permits trustees broader discretion to carry
out their official duties than other state officials and
employees, the Commission must defer to the guardrails set in
place by OHA.
The Commission did so here. OHA policy permitted
trustees to use Trustee Allowance Funds for “incidental expenses
connected with Trustee duties,” such as “developing and
maintaining an ongoing communication network with beneficiaries
and the general public”; “promoting a broader understanding of
Hawaiian issues”; and “provid[ing] support for beneficiaries in
their personal quest for self-improvement, capacity building,
and for education[.]” These permitted expenditures are unique
to OHA’s purpose under HRS § 10-3 and likely extend beyond the
scope of discretionary spending permitted in other state
entities.
The Commission properly deferred to OHA policy. Where
the Commission determined Akana violated the fair treatment law,
38
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
HRS § 84-13, for 41 of the 47 counts alleged by the Commission’s
charge counsel, it further found that the 41 counts were also in
violation of OHA policy. For example, in assessing Akana’s food
expenses, the Commission noted that although OHA did not have
specific policies for food expenses, “OHA fiscal staff’s
understanding of the policy was that Trustees could spend
Trustee Allowance funds on food for meetings with outside
beneficiaries, but not for internal meetings with staff.” It
therefore found Akana’s food expenditures for staff parties or
other “purely internal functions” were “personal expense[s]
rather than an expense that was necessary or required for OHA
business.”
Likewise, where the Commission declined to find a fair
treatment law violation, it deferred to OHA policy. For
example, the Commission declined to find Akana violated the fair
treatment law when she donated a total of $75.00 to the Hawaiian
Humane Society because it was “unclear whether OHA policy at the
time prohibited [her] from making the donations.” It observed
that although charitable contributions to the Hawaiian Humane
Society “did not necessarily align with the intent of the
Trustee Annual Allowance,” it could have been allowable under
OHA policy if the “organization specifically tracked its
services to the Native Hawaiian community.”
39
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Under these circumstances, the Commission properly
deferred to OHA policy in considering Akana’s Trustee Allowance
Fund expenditures, ensuring OHA trustees would be able carry out
their fiduciary duties free from undue influence, while also
ensuring Akana’s conduct as a state employee would be
accountable to the public. 16
B. Akana Violated the Gifts and Gifts Reporting Laws
We now turn to the Commission’s findings and
conclusions that Akana violated the gifts and gifts reporting
laws, HRS §§ 84-11 and -11.5, by (1) accepting two legal fee
payments from OHA beneficiary Kawānanakoa after Kawānanakoa
filed a lawsuit against OHA, and (2) failing to disclose her
acceptance of four legal fee payments before the statutory
deadline. Reviewing the Commission’s mixed findings of fact and
conclusions of law for clear error, we hold (1) Akana’s
acceptance of legal fees payments from Kawānanakoa were “gifts”
under HRS § 84-11, and (2) the Commission’s determination that
Akana violated the gifts and gifts reporting laws was not
clearly erroneous.
1. Akana’s acceptance of paid legal fees are “gifts”
Akana contends the legal fee payments from Kawānanakoa
were not “gifts” because her lawsuit against OHA was part and
16 This case does not require us to determine the outer limits of what OHA policy could allow, and we decline to do so here.
40
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
parcel of her official duties. She cites to HRS § 10-5(3),
which provides the Board “the power in accordance with law to
. . . [c]ollect, receive, deposit, withdraw, and invest money
and property on behalf of the office.” (Emphasis added.) As
trustee, Akana contends she received paid legal fees from
Kawānanakoa on behalf of the office.
The Board, however, did not authorize Akana to file
her September 2013 lawsuit, which she filed both in her official
and individual capacities. Further, nothing in HRS chapter 10
suggests that Akana, or other OHA trustees, are authorized to
bring individual actions against the Board in their official
capacity. See HRS § 10-16(a) (2009) (“The office may sue and be
sued in is corporate name.”). Akana therefore did not accept
the legal fee payments from Kawānanakoa on behalf of the Board,
and was not authorized to do so under HRS § 10-5(3). Rather,
Akana’s acceptance of paid legal fees from Kawānanakoa
constituted acceptance of a gift subject to the gifts and gifts
reporting laws. See Advisory Opinion No. 2018-002, 2018 WL
4599569, at *2 (Haw. Ethics Comm’n June 21, 2018) (concluding
pro bono legal services are considered “gifts” under the Ethics
Code because they “are services that have a monetary value”).
41
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
2. The Commission did not err in determining Akana
violated the gifts laws for accepting paid legal fees
after Kawānanakoa filed a lawsuit against OHA
In any event, the plain language of the gifts law does
not differentiate between “gifts” received in one’s official
capacity and those that are unrelated to those duties:
No legislator or employee shall solicit, accept, or
receive, directly or indirectly, any gift, whether in the
form of money, service, loan, travel, entertainment,
hospitality, thing, or promise, or in any other form, under
circumstances in which it can reasonably be inferred that
the gift is intended to influence the legislator or
employee in the performance of the legislator’s or
employee’s official duties or is intended as a reward for
any official action on the legislator’s or employee’s part.
HRS § 84-11 (emphasis added).
Instead, the gifts law focuses on whether “it can
reasonably be inferred” to affect state employees’ performance
of their official duties. The Commission considers three
factors in determining whether a gift is prohibited under HRS
§ 84-11: “(1) the value of the gift; (2) the relationship
between the recipient and the donor of the gift, including
whether the recipient takes official action with respect to the
donor; and (3) whether the gift benefits the recipient
personally or serves legitimate state interests.” Advisory
Opinion No. 2018-002, 2018 WL 4599569, at *2.
Akana points to a 2018 advisory opinion by the
Commission, in which it applied the three-factor test to a State
board member’s acceptance of pro bono legal services from two
attorneys. Id. There, a State board member asked the
42
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Commission in relevant part to advise him as to whether he may
accept pro bono legal services provided to him in his individual
capacity in connection with a lawsuit concerning the state board
on which he served. Id. at *1. After the state agency became
involved in a lawsuit, an attorney to the state board
recommended that all board members retain private legal counsel
regarding the lawsuit. Id. Acting on the board attorney’s
recommendation, the board member asked two attorneys to corepresent him pro bono in his individual capacity, to which they
agreed. Id.
The Commission described the circumstances as a “close
case” and concluded that while pro bono legal services were
considered gifts under the Ethics Code, the board member’s
acceptance of those legal services did not violate the gifts
law. Id. at *3. It concluded the first factor – the monetary
value of the pro bono legal services, which were valued at
several thousand dollars – was substantial and weighed against
acceptance. Id. at *2.
The Commission considered the second factor – the
relationship between the board member and the donors – “the most
important of the three.” Id. at *3. Determining that this
factor leaned in favor of acceptance, the Commission noted that
the board member had a personal friendship with both attorneys
that pre-dated the board member’s position with the State. Id.
43
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
It also reasoned that neither attorney was currently involved in
matters the board member was considering in his official
capacity. Id. Although one of the attorneys was involved in a
separate lawsuit with the entire board, the Commission explained
the board member’s “prompt and unequivocal steps to avoid taking
official action affecting the Lawsuit, and hence, affecting
Attorney A” rendered it unlikely that the gifts of pro bono
legal services would influence the board member’s official
actions. Id.
The 2018 Commission explained that the third factor –
the extent to which the gifts benefit the board member
personally or benefit the State – was “complex.” Id. The
Commission pointed out that the legal services were being
provided to the board member in his individual capacity, but
legal services were required only because he served as member of
a State board. Id. It concluded that under the specific
circumstances where all board members were advised to obtain
private legal representation in their individual capacities, the
board member’s solicitation and acceptance of pro bono legal
services weighed in favor of acceptance. Id. Concluding two of
the three factors weighed in favor of acceptance, the Commission
determined the board member’s acceptance of pro bono legal
services was permissible under the gifts law. Id.
44
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Walking through the three-factor gifts law analysis,
Akana argues that none of the factors were met. First, she
contends that the acceptance of legal fees had “no true value”
to her. Second, she asserts that the record is clear: no
relationship existed between her and Kawānanakoa prior to her
acceptance of paid legal fees. Third, Akana emphasizes that the
Commission made no finding as to whether her acceptance of legal
fees weighed in favor or against acceptance. She argues that
“even without a clear record on the third factor,” her lawsuit
was for the benefit of OHA beneficiaries’ access to Board
meetings and materials, which benefits the State and OHA’s
mandate to advance the betterment of Native Hawaiians.
Contrary to Akana’s position that the three factors
were not satisfied here, we conclude the Commission did not
clearly err when it determined two of the three factors heavily
weighed against acceptance and therefore Kawānanakoa paying for
Akana’s legal fees after Kawānanakoa initiated her own lawsuit
created the reasonable inference “that the gift is intended to
influence [Akana] in the performance of [her] official duties or
is intended as a reward for any official action on [Akana’s]
part.” (Quoting HRS § 84-11.)
First, the substantial value of the gift – a donation
of legal fees in excess of $21,000 after Kawānanakoa filed her
own lawsuit against OHA – clearly weighs against acceptance,
45
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
regardless of whether Akana felt the legal fees had “no true
value” to her. See Advisory Opinion No. 2018-002, 2018 WL
4599569, at *2 (determining pro bono legal services valued at
several thousand dollars was “substantial” and weighed against
acceptance under the first factor of the gifts law analysis).
Second, the relationship between Akana and Kawānanakoa
also weighs against acceptance. Akana does not challenge the
Commission’s findings that she had no relationship with
Kawānanakoa outside her role as OHA trustee. Rather, she
emphasizes her trustee-beneficiary relationship with
Kawānanakoa. However, the fact that Akana had no significant
relationship with Kawānanakoa before her lawsuit supports the
inference that Kawānanakoa paid Akana’s legal fees to influence
the position taken by Akana as an OHA trustee. Notably, unlike
the board member’s acceptance of pro bono services in the
Commission’s 2018 Advisory Opinion, the record here does not
indicate Akana took “prompt and unequivocal steps to avoid
taking official action affecting” Kawānanakoa’s lawsuit against
OHA. Cf. id. at *3 (noting the second factor leaned towards the
gift of pro bono legal services being acceptable because based
on the circumstances, it was unlikely the gifts of pro bono
legal services would influence or reward the board member for
any official action he might take).
46
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
Though the Commission did not expressly conclude the
third factor – the extent to which the gifts benefit the
employee personally or benefit the State – weighed against
Akana’s acceptance of paid legal fees, we concur with the
Commission’s determination that the first two factors
sufficiently weigh against acceptance of Kawānanakoa’s gifts.
Kawānanakoa’s gifts of paid legal fees may have
initially been permissible under the gifts law because
acceptance of the gifts from an OHA beneficiary with no other
pending matters would not give rise to an inference that the
gift was “intended to influence” Akana in her performance as OHA
trustee. Notably, the Commission’s charge counsel only charged
Akana for violating the gifts law after Kawānanakoa filed a
separate lawsuit against OHA, suggesting Akana’s initial
acceptance of paid legal fees from Kawānanakoa prior to February
2017, may have been permissible under the gifts law. 17
The nature of Kawānanakoa’s relationship with Akana,
however, changed once Kawānanakoa initiated her own lawsuit
17 The initial charge against Akana alleged Akana violated the gifts law on seven separate occasions for accepting paid legal fees from Kawānanakoa from July 2015 through June 2017. However, in a “Further Statement of Alleged Violation” by the Commission’s charge counsel, Akana was only alleged to have violated two counts of the gifts law for her April 28, 2017 acceptance of $15,513.15 and June 17, 2017 acceptance of $6,000.00 of legal fees from Kawānanakoa.
47
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
against OHA. 18 Rather than disclose her acceptance of paid legal
fees from Kawānanakoa or take other “prompt and unequivocal
steps to avoid taking official action affecting” Kawānanakoa’s
lawsuit against OHA, Akana attended at least one executive
session about the Kawānanakoa lawsuit. Cf. id. Even if Akana’s
participation in one executive session with the Board’s counsel
did not result in her taking any official action on
Kawānanakoa’s lawsuit, Akana’s failure to either disclose her
acceptance of paid legal fees from Kawānanakoa or recuse from
taking part in any discussions related to Kawānanakoa’s lawsuit
weighs heavily against acceptance. Therefore, Akana’s
acceptance of Kawānanakoa’s legal fee payments after the filing
of the Kawānanakoa lawsuit gave rise to the inference that
Kawānanakoa’s continued payment of Akana’s legal expenses were
“intended to influence [Akana] in the performance of [her]
official duties.” See HRS § 84-11.
3. The Commission did not err in determining Akana
violated the gifts reporting law
Distinct from the gifts law, the gifts reporting law
requires state employees to report certain gifts on an annual
basis, though the reporting of gifts does not transform an
18 Akana was present for an entire executive session of the Board on March 9, 2017, in which the Board consulted with its attorney regarding Kawānanakoa’s lawsuit. At this time, Akana had not yet filed any gift reporting statements nor did she take “prompt and unequivocal steps to avoid taking official action affecting” Kawānanakoa’s lawsuit.
48
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
otherwise unacceptable gift into an acceptable one. See HRS
§ 84-11.5(f) (noting the gifts reporting provision “does not
affect the applicability” of the gifts law). To promote public
confidence in government and public officials, the gifts
reporting law mandates disclosure of:
(1) [A]ny gift or gifts valued singly or in the aggregate
in excess of $200, whether the gift is in the form of
money, service, goods, or in any other form;
(2) The source of the gift or gifts have interests that
may be affected by official action or lack of action
by the . . . employee; and
(3) The gift is not exempted by subsection (d) from
reporting requirements[.]
HRS § 84-11.5(a); see Conf. Comm. Rep. No. 41, in 1992 House
Journal, at 808 (noting that while a “slight inconvenience, the
filing of gift disclosure statements are necessary to further
promote public confidence in our government as well as our
public officials”).
As the Commission properly concluded, Akana’s
acceptance of paid legal fees from Kawānanakoa met all three
conditions requiring disclosure: (1) the gifts were valued well
over $200, (2) the gifts were from Kawānanakoa, an OHA
beneficiary whose interests may have been affected by Akana’s
duties as an OHA trustee, and (3) the acceptance of paid legal
fees was not exempted from the reporting requirement. Yet,
Akana did not file any gifts disclosure statement with the
Commission disclosing her acceptance of four installments of
49
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
paid legal fees from July 2015 through June 2016 totaling more
than $50,000 from Kawānanakoa until June 2017, nearly one year
after the statutory gifts reporting deadline. 19 We therefore
conclude, given the evidence in the record, that the Commission
did not clearly err in determining Akana violated the gifts and
gifts reporting laws.
V. CONCLUSION
For the foregoing reasons, we affirm the ICA’s
February 16, 2024 Judgment on Appeal affirming the Circuit Court
of the First Circuit’s November 27, 2019 Amended Final Judgment
and the Hawaiʻi State Ethics Commission’s February 5, 2019
Findings of Fact, Conclusions of Law, and Decision and Order.
James J. Bickerton /s/ Mark E. Recktenwald Geoffrey A. Tracy
(Bridget G. Morgan-Bickerton /s/ Sabrina S. McKenna and Stephen M. Tannenbaum
on the briefs) /s/ Todd W. Eddins for petitioner
/s/ Lisa M. Ginoza
Ewan C. Rayner
for respondent /s/ Vladimir P. Devens
Robert G. Klein
Kurt W. Klein
David A. Robyak
James M. Yuda
Jason W. Jutz
Mallorie C. Aiwohi
(on the briefs)
for amicus curiae
19 As previously noted, Akana accepted four installments of paid legal fees from Kawānanakoa in July 2015, August 2015, March 2016, and April 2016. The statutory deadline to disclose acceptance of those gifts was June 30, 2016.
50