Akana v. Hawai'i State Ethics Commission. ICA mem. op., filed 01/22/2024 [ada], 153 Haw. 523. Application for Writ of Certiorari, filed 04/16/2024. S.Ct. Order Accepting Application for Writ of Certiorari, filed 06/10/2024 [ada].

• Court: Hawaii Supreme Court
• Decided: September 17, 2025
• Docket: SCWC-19-0000668
• Status: Published

Opinion

*** 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, then-

trustee 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 nine-

member 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.

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 nine-

member 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 statutory- interpretation 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” semi-

autonomous 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

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 co-

represent 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.