Akana v. Hawai'i State Ethics Commission

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-JAN-2024
08:04 AM
Dkt. 77 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

ROWENA AKANA, Respondent-Appellant-Appellant,
v.
HAWAI#I STATE ETHICS COMMISSION, Complainant-Appellee-Appellee,
and
DANIEL M. GLUCK, EXECUTIVE DIRECTOR

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CC191000379)

MEMORANDUM OPINION
(By: Leonard, Acting Chief Judge, Hiraoka and Nakasone, JJ.)

After a contested case hearing, the Hawai#i State
Ethics Commission determined that Rowena Akana violated the
Hawai#i code of ethics and imposed an administrative fine. Akana
appealed. The Circuit Court of the First Circuit affirmed.1
Akana filed this secondary appeal. We affirm.

I. BACKGROUND2

Akana was an elected member of the Board of Trustees of
the Office of Hawaiian Affairs (OHA). She had served as an OHA

1
The Honorable James H. Ashford presided.
2
Some of the background comes from the Commission's findings of
fact which Akana has not challenged on appeal. See Poe v. Haw. Lab. Rels.
Bd., 97 Hawai#i 528, 536, 40 P.3d 930, 938 (2002) ("Unchallenged findings are
binding on appeal." (citation omitted)).
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trustee for 28 years, until 2018. OHA trustees receive a salary
plus an annual allowance — funded by OHA trust funds — intended
to improve the trustees' ability to communicate with and help OHA
beneficiaries.3 OHA's Executive Policy Manual required that
trustees "abide by the Standards of Conduct of the State of
Hawai#i, Chapter 84, Hawaii Revised Statutes[.]" Trustees had to
attend the ethics training course conducted by the Commission (as
were legislators, members of the board of education, the
governor, the lieutenant governor, and executive department heads
and deputies). At least every other year, trustees were reminded
by OHA staff or the Commission about their HRS Chapter 84
obligations. OHA staff gave trustees gift disclosure forms and
reminded them of the rules about receiving and giving gifts.
On April 19, 2018, the Commission charged Akana with
violating Hawaii Revised Statutes (HRS) § 84-11 (the Gifts Law),
HRS § 84-11.5 (the Gifts Reporting Law), and HRS § 84-13 (the
Fair Treatment Law). These laws are part of the Code of Ethics,
Part II of HRS Chapter 84. Akana denied violating the law. She
alleged that the Commission "does not have jurisdiction over the
discretionary spending accounts of the OHA Trustees, since such
funds comprise 'trust funds' and do not constitute 'state
funds[.]'" She also alleged that the charges violated her rights
under the Hawai#i Constitution. The Commission entered the Order
Regarding Jurisdictional and Constitutional Issues Raised by
Respondent. It concluded it had jurisdiction over the charges
against Akana under article XIV of the Hawai#i Constitution and
HRS Chapter 84.
A contested case hearing was held on October 22, 24,
25, and 26, 2018. On February 5, 2019, the Commission entered
its Findings of Fact, Conclusions of Law, and Decision and Order.
It determined that Akana violated the Gifts Reporting Law, the
Gifts Law, and the Fair Treatment Law. It imposed an

3
From 1991 to 2013, the allowance was $7,200 per trustee. In 2013
the allowance was increased to $22,200 per trustee.

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administrative fine of $23,106.53. It also filed a complaint and
referred the matter to the Attorney General.
Akana appealed to the circuit court. She moved to stay
enforcement of the Decision and Order. The circuit court denied
the motion. She also moved to let additional evidence be
presented on appeal. The circuit court denied the motion.
On September 24, 2019, the circuit court entered an
order affirming the Commission's Decision and Order, and a
judgment. Akana's notice of appeal to this court was filed on
October 1, 2019. On October 2, 2019, the Commission moved to
amend the judgment. The Amended Final Judgment was entered on
November 27, 2019.

II. POINTS OF ERROR

Akana's opening brief states nine points of error,
which we have numbered as contemplated by Hawai#i Rules of
Appellate Procedure (HRAP) Rule 28(b)(4) and restated to reflect
the secondary nature of our review: (1) the Commission exceeded
its jurisdiction by prosecuting Akana for discretionary conduct
as an OHA trustee; (2) the Commission was not authorized to adopt
the administrative rule under which Akana was charged; (3) the
Commission deprived Akana of due process by issuing the Order
Regarding Jurisdictional and Constitutional Issues without
conducting an evidentiary hearing; (4) the Commission's selective
prosecution of Akana violated her constitutional right to equal
protection; (5) the fines imposed against Akana were excessive;
(6) the Commission made erroneous findings of fact and wrong
conclusions of law in applying the Fair Treatment Law to Akana's
spending from her trustee allowance; (7) the Commission made
erroneous findings and wrong conclusions in applying the Gifts
Law and Gifts Reporting Law to a third party's payment of Akana's
legal fees; (8) the circuit court abused its discretion by
denying Akana's motion to stay enforcement of the Commission's
Decision and Order; and (9) the circuit court erred by granting

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the Commission's motion to amend the judgment after Akana filed
her notice of appeal.

III. STANDARDS OF REVIEW

A. Administrative Agency Appeals

Our review of the circuit court's decision on Akana's
appeal from the Commission's Decision and Order is a secondary
appeal; we determine whether the circuit court was right or
wrong, applying the standards in HRS § 91–14(g) to the
Commission's decision based on the agency record. Flores v. Bd.
of Land & Nat. Res., 143 Hawai#i 114, 120, 424 P.3d 469, 475
(2018) (citation omitted).
HRS § 91–14(g) (Supp. 2018) provides:

Upon review of the record, the court may affirm the
decision of the agency or remand the case with
instructions for further proceedings; or it may
reverse or modify the decision and order if the
substantial rights of the petitioners may have been
prejudiced because the administrative findings,
conclusions, decisions, or orders are:

(1) In violation of constitutional or
statutory provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the
whole record; or

(6) Arbitrary, or capricious, or characterized
by abuse of discretion or clearly
unwarranted exercise of discretion.

We review an agency's findings of fact for clear error.
Del Monte Fresh Produce (Haw.), Inc. v. International Longshore
and Warehouse Union, Local 142, 128 Hawai#i 289, 302, 287 P.3d
190, 203 (2012). An agency's conclusions of law are usually
reviewed de novo. Id. But when we review an agency's
determination, we first examine whether the legislature granted

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the agency discretion to make the determination being reviewed.
If the legislature granted the agency discretion over a
particular matter, we review the agency's action under the
deferential abuse of discretion standard (remembering the
legislature determines the boundaries of that discretion).
Paul's Elec. Serv., Inc. v. Befitel, 104 Hawai#i 412, 419-20, 91
P.3d 494, 501-02 (2004).
The legislature granted the Commission discretion to
administer and enforce HRS Chapter 84. See Boyd v. Haw. State
Ethics Comm'n, 138 Hawai#i 218, 225, 378 P.3d 934, 941 (2016)
(citing HRS Chapter 84, Preamble (1993));4 HRS § 84-1 (2012)
("This chapter shall be liberally construed to promote high
standards of ethical conduct in state government."). When we
review the Commission's decision, we "cannot consider the weight
of the evidence to ascertain whether it weighs in favor of the
administrative findings, or review the agency's findings of fact
by passing upon the credibility of witnesses or conflicts in
testimony, especially the finding of an expert agency in dealing
with a specialized field." Sierra Club v. D.R. Horton-Schuler
Homes, LLC, 136 Hawai#i 505, 522, 364 P.3d 213, 230 (2015)
(cleaned up).

B. Jurisdiction

An administrative agency may determine its own
jurisdiction. See HOH Corp. v. Motor Vehicle Indus. Licensing
Bd., 69 Haw. 135, 141, 736 P.2d 1271, 1275 (1987). The existence
of jurisdiction is a question of law we review de novo under the

4
The Preamble states:
The purpose of this chapter is to (1) prescribe a code of
ethics for elected officers and public employees of the
State as mandated by the people of the State of Hawaii in
the Hawaii constitution, article XIV; (2) educate the
citizenry with respect to ethics in government; and
(3) establish an ethics commission which will administer the
codes of ethics adopted by the constitutional convention and
by the legislature and render advisory opinions and enforce
the provisions of this law so that public confidence in
public servants will be preserved.

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right/wrong standard. In re Kanahele, 152 Hawai#i 501, 509, 526
P.3d 478, 486 (2023).

C. Statutory Interpretation

Interpretation of a statute is a question of law
reviewed de novo. Barker v. Young, 153 Hawai#i 144, 148, 528
P.3d 217, 221 (2023). We start with the statute's language;
"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." Id. (citation omitted).

IV. DISCUSSION

We discuss Akana's points of error in the order
presented in her opening brief.

A. The Commission could investigate and take
appropriate action against Akana for
violating HRS Chapter 84.

Article XIV of the Hawai#i Constitution provides in
relevant part:

The people of Hawaii believe that public officers and
employees must exhibit the highest standards of ethical
conduct and that these standards come from the personal
integrity of each individual in government. To keep faith
with this belief, the 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, including members of the boards,
commissions and other bodies.
Each code of ethics shall be administered by a
separate ethics commission, except the code of ethics
adopted by the constitutional convention which shall be
administered by the state ethics commission.

The code of ethics applicable to state officers and
employees, and members of state boards, commissions and other
bodies, is HRS Chapter 84. The Commission was established by HRS
§ 84-21 (2012). It may "initiate, receive, and consider charges

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concerning alleged violation of" HRS Chapter 84, and "initiate or
make investigation, and hold hearings[.]" HRS § 84-31(a)(3)
(2012). It has "jurisdiction for purposes of investigation and
taking appropriate action on alleged violations of" HRS
Chapter 84. HRS § 84-31(a)(6) (2012).
OHA was established by article XII, section 5 of the
Hawai#i Constitution, see Arakaki v. Hawaii, 314 F.3d 1091, 1093
(9th Cir. 2002), and created by HRS § 10-4 (1979). It is
governed by a nine-member board of trustees, elected by qualified
voters in the state. Arakaki, 314 F.3d at 1093. Akana was an
elected member of OHA's board of trustees. She is subject to the
Code of Ethics, and the Commission had authority to investigate
her alleged violations of the Gifts Law, the Gifts Reporting Law,
and the Fair Treatment Law.
Akana argues she isn't subject to the Code of Ethics
because it contradicts her obligations under HRS Chapter 10, the
statute governing OHA. She cites Boyd, 138 Hawai#i 218, 378 P.3d
934. There, the supreme court held that the Commission did not
have authority to adjudicate conflicts-of-interest proceedings
under HRS § 84-14 against Boyd, a state charter school employee.
Id. at 228, 378 P.3d at 944. The charter school statute in
effect at the time of the alleged violations, HRS Chapter 302B,5
exempted charter schools "from all other State laws in conflict
with Chapter 302B." Id. at 227, 378 P.3d at 943 (citing HRS
§ 302B–9(a) (Supp. 2006 & 2007) (repealed 2012)). The Commission
found Boyd in violation of HRS § 84-14 and fined him $10,000.
Id. at 228 n.24, 378 P.3d at 944 n.24. The supreme court noted
Boyd was fined "for the same conduct that was in compliance with
[the charter school]'s conflict of interest policy, which was
adopted in accordance with HRS §§ 302B–5(d)(6) or 302B–6(d)(6)."
Id. The court held:

5
HRS Chapter 302B was repealed in 2012 and replaced with HRS
Chapter 302D. Boyd, 138 Hawai#i at 219 n.1, 378 P.3d at 935 n.1. Under HRS
§ 302D–12(i) (Supp. 2012), "[a]ll charter school employees and members of
governing boards shall be subject to [HRS] chapter 84." Id. at 227 n.23, 378
P.3d at 943 n.23.

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If both HRS § 84–14 and Chapter 302B applied to a charter
school employee during the relevant time period, then that
employee would have been subject to two separate conflict of
interest standards. Thus, that same employee 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.
Akana cites HRS §§ 10-4 ("Office of Hawaiian affairs;
established; general powers") and 10-4.5 ("Authority over
disbursements") as the statutes that "caused conflicting
standards to be applied" to her conduct. "Two statutes conflict
where it is not possible to give effect to both." Carmichael v.
Bd. of Land & Nat. Res., 150 Hawai#i 547, 567, 506 P.3d 211, 231
(2022) (citation omitted). Nothing in HRS §§ 10-4 (2009) or 10-
4.5 (2009) is contrary to, or inconsistent with, the Code of
Ethics. See Off. of Hawaiian Affs. v. Kondo, 153 Hawai#i 170,
178, 528 P.3d 243, 251 (2023) (noting that "[g]enerally, two laws
conflict when they 'are explicitly contrary to, or inconsistent
with, each other.'" (quoting Boyd, 138 Hawai#i at 227, 378 P.3d
at 943)). "[I]f laws can be interpreted harmoniously, there is
no conflict." Id. OHA's Executive Policy Manual requires that
"Trustees shall abide by the Standards of Conduct of the State of
Hawai#i, Chapter 84, Hawaii Revised Statutes, as amended, and
shall attend ethics training as required by law." Akana's
argument lacks merit.
Akana also contends that the Commission erred because
she "acted appropriately at all times in accordance with her
fiduciary duties and capacity as trustee." She cites Kealoha v.
Machado, 131 Hawai#i 62, 315 P.3d 213 (2013). The plaintiffs in
Machado sued several OHA trustees (including Akana) for breaching
their fiduciary duty by spending trust funds "without regard to
blood quantum on lobbying efforts[.]" Id. at 71, 315 P.3d
at 222. The supreme court noted that HRS Chapter 10 didn't
mandate how OHA trustees should spend trust funds to better the
conditions of native Hawaiians. Id. at 78, 315 P.3d at 229.
"[T]he trustees have broad discretion in making that

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determination." Id. (citation omitted). In that context, the
court held:

When a trustee has discretion with respect to the
exercise of a power, its exercise is subject to supervision
by a court only to prevent abuse of discretion. Where
discretionary power is given to the trustee, the court will
not interfere unless the trustee in exercising or failing to
exercise the power acts dishonestly, or with an improper
even though not a dishonest motive, or fails to use his
judgment, or acts beyond the bounds of a reasonable
judgment.

Id. at 77, 315 P.3d at 228 (cleaned up) (emphasis added).
Akana argues that a court can only review her conduct
for breach of fiduciary duty, and "cannot interfere with an OHA
trustee's exercise of discretionary power without first making a
finding of breach of fiduciary duty." She argues that the
circuit court improperly interfered by affirming the Decision and
Order because neither the Commission nor the circuit court found
that she abused her discretionary power. But neither the
Commission nor the circuit court were tasked with determining
whether Akana breached her fiduciary duty to OHA beneficiaries.
They reviewed whether Akana met her obligations under the Code of
Ethics, not whether she breached her fiduciary duty as an OHA
trustee. Nothing in Machado constrains the Commission from
investigating alleged violations of the Code of Ethics, or from
taking appropriate action on violations.
Akana argues for reversal of the Commission's findings
that she violated the Fair Treatment Law because "each and every
expenditure [she] made . . . went through the approval process
created by OHA and was either authorized, or was disallowed and
then reimbursed by Ms. Akana in accordance with OHA policy."
That, she contends, resulted "in inconsistent and conflicting
standards being applied." But OHA does not pre-authorize trustee
spending. The Commission found, and Akana does not challenge:

79. Because Trustees are provided with Trustee Annual
Allowance funds in a lump sum at the beginning of the
fiscal year, the OHA fiscal staff's review of a
Trustee's quarterly report is an "after-the-fact"

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review; by the time the fiscal staff receives a
quarterly report from a Trustee, the expenditures
listed in the report have already been made by the
Trustee.
. . . .

82. The quarterly and year-end reviews of Trustee Annual
Allowance expenditures are a "tedious" and "time-
consuming" process, inasmuch as OHA fiscal staff
reviews each expenditure manually and it is not
possible for staff to catch all disallowed
expenditures, primarily because each Trustee is
allowed to spend $22,200 annually, which includes many
small expenditures.

. . . .

86. The fact that a particular expense is "not disallowed"
by OHA fiscal staff does not mean that the expenditure
is "allowable" or consistent with OHA policy; it could
simply mean that the expense was not "flagged" by the
fiscal staff. As stated by former Controller Kim in
his testimony, the failure to disallow a prohibited
expense was a deficiency in the process of reviewing
these expenditures; however, the fact that an
expenditure was not disallowed does not necessarily
mean that the expenditure was allowable pursuant to
OHA policy.

. . . .

91. The Commission finds, based upon credible evidence,
that Respondent Akana threatened and berated OHA
fiscal staff who questioned or disallowed her Trustee
Annual Allowance expenditures. Current and former OHA
staff members testified that they and their colleagues
feared personal attacks or possible retaliation when
questioning Respondent Akana about her expenditures.

92. OHA fiscal staff found that trying to get additional
information and documentation from Respondent Akana
about her expenditures was difficult and the staff was
intimidated to ask Respondent Akana for information
"because they don't want to get yelled at."
. . . .

96. There were many incidents that affected how [former
OHA Chief Financial Officer (CFO)] Ms. Iona approached
Respondent Akana with respect to her Trustee Allowance
expenditures:

[I]t really all boils down to there was an
effort by administration to enforce policies and
procedures the best that we could. There was
disagreement from trustee Rowena Akana in doing
so, and that, in itself would cause a lot of
personal attacks against members of the
administration, including myself. And that was
really the standard in really the almost six
years that I was the CFO.

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97. Because of Respondent Akana's threats to and
intimidation of OHA fiscal staff, more than one OHA
employee was reluctant to challenge Respondent Akana
regarding her spending of Trustee Annual Allowance
funds.
98. In January 2014, then-CFO Iona decided not to question
Respondent Akana about the purchase of a $50 iTunes
gift card (Count 7, discussed at FOFs # 99-104, below)
— even though Ms. Iona believed the purchase should
not have been allowed — expressly because Ms. Iona did
not want to upset Respondent Akana.

(Citations to evidence omitted.) These unchallenged findings
bind Akana. See Poe, 97 Hawai#i at 536, 40 P.3d at 938. Akana's
argument that she could not have violated the Code of Ethics
because her spending was not disallowed by OHA lacks merit.

B. The Commission was authorized to adopt the
administrative rule under which Akana was
charged.

The charges against Akana were brought under Hawaii
Administrative Rules (HAR) § 21-5-2 (eff. 1981). Akana contends
that HAR § 21-5-2 exceeds the statutory authority granted to the
Commission. The rule provided:

(a) Upon the receipt of anonymous information or other
information not under oath, or information obtained at the
initiative of the commission, the executive director or
delegate shall verify such facts as may be verified through
public documents or the assistance of department heads,
legislators, or other appointed or elected officials or
employees, including the respondent. Investigation may not
extend to interviews of other persons unless the commission,
in its discretion, initiates an investigation to determine
whether a charge should be issued. This investigation will
be carried out confidentially by the executive director or
delegate. The nature and scope of the investigation shall
be defined by a resolution supported by a vote of three or
more members of the commission.
(b) If after preliminary investigation at least three
commissioners decide that a charge should be initiated, the
charge shall be issued in writing and signed by at least
three commissioners.

Akana argues that the Commission "may only investigate
a matter after the issuance of written charges." Her argument
lacks merit. HRS § 84-31(a)(3) empowers the Commission to
"initiate, receive, and consider charges concerning alleged
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violation of this chapter, initiate or make investigation, and
hold hearings[.]" (Emphasis added.) HAR § 21-5-2 follows the
Commission's statutory authority to "initiate or make
investigation" into violations of the Code of Ethics.

C. Akana was not deprived of due process.

Akana contends that she "was denied due process in so
far as she was not given an evidentiary hearing to contest the
Commission's authority and jurisdiction to bring charges against
her in the first place." The record does not show that Akana
asked for an evidentiary hearing to determine the Commission's
jurisdiction, either before or after entry of the Order Regarding
Jurisdictional and Constitutional Issues. We decline to consider
this argument, made for the first time on appeal. See State v.
Moses, 102 Hawai#i 449, 456, 77 P.3d 940, 947 (2003) ("As a
general rule, if a party does not raise an argument at trial,
that argument will be deemed to have been waived on appeal; this
rule applies in both criminal and civil cases." (citations
omitted)).
At any rate, the purpose of an evidentiary hearing is
to resolve factual disputes. Safeway, Inc. v. Nordic PCL
Constr., Inc., 130 Hawai#i 517, 531–32, 312 P.3d 1224, 1238–39
(App. 2013). There were no genuine factual issues material to
the Commission's authority and jurisdiction to determine whether
Akana violated the Code of Ethics. Akana did not dispute she was
an elected, salaried member of OHA's board of trustees. As an
OHA trustee, she is subject to the Code of Ethics as a matter of
law. The Commission could investigate her alleged violations of
the Gifts Law, the Gifts Reporting Law, and the Fair Treatment
Law, and take appropriate action. See HRS § 84-31(a)(3).

D. The Commission did not violate Akana's
constitutional right to equal protection.

Akana contends she was selectively prosecuted in
violation of her right to equal protection under article I,

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section 5 of the Hawai#i Constitution. She must "present
sufficient evidence to establish the existence of intentional or
purposeful discrimination . . . that is deliberately based upon
an unjustifiable standard such as race, religion or other
arbitrary classification." State v. Kailua Auto Wreckers, Inc.,
62 Haw. 222, 226-27, 615 P.2d 730, 734–35 (1980) (cleaned up).
Akana's briefs don't cite to any evidence presented to the
Commission that supports her selective prosecution defense.
Akana argues that she tried to present this evidence to
the circuit court, but the court denied her motion to present new
evidence. Her motion cited HRS § 91-14(e) (2012), which lets the
circuit court order that new evidence be presented to the agency,
which may then change its findings, decision, and order. Akana's
motion sought to present new evidence "to this [Circuit] Court on
appeal." This procedure is not allowed by HRS § 91-14(e). See
also HRS § 91-14(f) (Supp. 2018) ("The review shall be . . .
confined to the record[.]"). The circuit court did not err by
denying Akana's motion.
In this secondary appeal, Akana argues that the new
evidence she sought to present (to the circuit court) would have
shown that the Commission "had no rational basis to proceed
solely against Ms. Akana for the exact same types of transactions
made by other OHA trustees during the same time period, and
therefore the Commission's prosecution was unlawful and violated
Ms. Akana's equal protection rights." "It is insufficient to
show merely that other offenders have not been prosecuted[.]"
Kailua Auto Wreckers, 62 Haw. at 227, 615 P.2d at 735 (citation
omitted). Akana makes a conclusory argument that "a group of OHA
trustees and members of the OHA Board who were politically
opposed to" her persuaded the Commission to "bring a retaliatory
action against" her. She presented no such evidence to the
Commission. Akana's contention of selective prosecution lacks
merit.

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E. The fines imposed were not unconstitutionally
excessive.

The Commission fined Akana $23,106.52 for 47 violations
of the Code of Ethics. Akana argues that "a $1,000.00 fine, or
any fine at all beyond a nominal one, is excessive" because her
spending violations "were either approved by OHA itself or else
promptly reimbursed to OHA in accordance with internal OHA
protocols." We've already dismissed Akana's argument that she
could not have violated the Code of Ethics because her spending
was "authorized" or "not disallowed" by OHA.
The Commission found and concluded:

IV. ADMINISTRATIVE FINE

. . . .

5. The Commission concludes that Respondent Akana's
failure to report gifts totaling more than $50,000
from Ms. [Abigail] Kawananakoa constituted violations
of the State Ethics Code, and that each violation
warrants the maximum administrative fine of $500
applicable at the time the offenses occurred.
6. The Commission concludes that Respondent Akana's
receipt of gifts totaling more than $21,000 from
Ms. Kawananakoa on or about April 28, 2017 and
June 17, 2017 constituted violations of the State
Ethics Code, and that each violation warrants the
maximum administrative fine of $500 applicable at the
time the offense occurred.

7. The Commission concludes that Respondent Akana's
expenditure of her Trustee Annual Allowance for her
Hawaiian Airlines Premier Club membership, political
contributions — including the political action
committee event — and home cable television service
constituted violations of the State Ethics Code, and
that each violation warrants the maximum
administrative fine applicable at the time the offense
occurred.

8. Regarding Respondent Akana's expenditures on food: the
Commission concludes that it is proper for Respondent
Akana to pay an administrative fine equivalent to the
amount of each expenditure, essentially requiring
Respondent Akana to use personal funds to pay for
these expenditures. The Commission has taken this
approach in similar cases. Regarding Respondent
Akana's expenditure for food for OHA Trustees' holiday
party (Count 48) — an expenditure that was disallowed
by OHA, such that Respondent Akana eventually used
personal funds to pay for the expenditure — no
administrative fine will be imposed.

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9. Upon consideration of the evidence and the arguments
of counsel, the Hawaii State Ethics Commission hereby
determines and concludes that the following
administrative fines for each of the violations of HRS
chapter 84 that occurred are appropriate and shall be
assessed:

a. Counts 1-4 (Failure to Report Gifts): $500 each
($2,000 total)

b. Counts 5-6 (Improper Acceptance of Gifts): $500
each ($1,000 total)
c. Counts [sic] 8 (Expenditures [sic] - Premier
Club): $500

d. Counts 10, 12-28 (Expenditures - Cable
Television): $500 each ($9,000 total)
e. Counts 29-36 (Expenditures - Cable Television):
$1,000 each ($8,000 total)
f. Count 38 (Expenditure - Food): $17.80

g. Count 39 (Expenditure - Food): $268.59

h. Count 40 (Expenditure - Food): $31.94
i. Count 41 (Expenditure - Food): $61.83

j. Count 42 (Expenditure - Food): $66.49

k. Count 43 (Expenditure - Food): $39.48

l. Count 44 (Expenditure - Food): $31.01

m. Count 45 (Expenditure - Food): $20.73
n. Count 46 (Expenditure - Food): $43.66

o. Count 47 (Expenditure - Food): $25.00

p. Count 48 (Expenditure - Food): $0.00
This expenditure was disallowed by OHA.

q. Counts 49-50 (Expenditures - Political
Contributions): $500 each ($1,000 total)

r. Count 51 (Expenditure - Contribution PAC Event):
$1,000
10. Contrary to Respondent Akana's assertion that any
administrative penalties assessed against her would be
excessive, the Commission finds that the maximum
administrative penalties imposed above are appropriate
in light of the breadth and egregious nature of
Respondent Akana's conduct. The evidence established
that Respondent Akana committed dozens of violations
of the State Ethics Code by accepting illegal gifts
valued at over $21,000; failing to timely report gifts
valued at over $50,000; and using Trustee Annual

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Allowance funds for her own personal benefit or for
political contributions.
11. The administrative penalties imposed above are
appropriate given the especially troubling actions of
the Respondent with respect to the use of her Trustee
Annual Allowance. Because OHA staff who administered
the Trustee Annual Allowance were fearful of personal
attacks and threats for questioning Respondent's
expenditures, it cannot be said that any expenditure
that was "not disallowed" complied with OHA's own
policies. Indeed, Respondent Akana seemingly
displayed a "pattern of consistently trying to get
away with spending that a prudent person would not
otherwise be able to push that boundary."

(Citations omitted.)
Akana argues that her "belated reporting of 'gifts' of
legal fees" was "purely a technical violation." The Commission
addressed that issue:

III. CONCLUSIONS OF LAW

. . . .

76. The Commission disagrees that Respondent Akana's
failure to report four gifts (amounting to over
$50,000) from Ms. Kawananakoa is a "technical"
violation warranting only a "nominal penalty per
instance" or that "any fine at all[] is excessive when
considering the nature of the alleged violations[.]"
77. Respondent Akana's failure to report the gifts that
she received from Ms. Kawananakoa are not mere
"technical" violations. Gifts [sic] disclosures serve
the vital purposes of government transparency and
accountability. They provide the Commission and the
public with information needed to hold government
employees to the highest ethical standards. As
reflected in the legislative history of HRS § 84-11.5,
gifts [sic] disclosures may be a slight inconvenience
for filers, but they are necessary to promote public
confidence in government and in public officials.
78. Had Respondent timely filed her gifts disclosure
statements by the June 30, 2016 deadline, the
Commission and the public would have had this
information a year earlier. Calling this a
"technical" violation entirely misses the point of the
Gifts Reporting law.

. . . .
81. The Commission concludes that the maximum fine of $500
per violation (Counts 1-4) applicable at the time of
Respondent Akana's misconduct is consistent with
applicable law and appropriate.

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(Citations omitted.)
The Commission's fine of $500 for each violation was
authorized by HRS § 84-39 (2012).6 Akana has not challenged the
constitutionality of that statute. The Commission's
characterization of Akana's conduct was supported by substantial
evidence and was not clearly erroneous. Given the record here,
we cannot say the Commission abused its discretion by imposing
the maximum administrative fines allowed under HRS § 84-39
(2012).

F. The Commission's findings and conclusions
about Akana's spending were supported by
substantial evidence and were neither clearly
erroneous nor wrong.

OHA trustees receive their allowance as a lump sum at
the beginning of each fiscal year. OHA's Board of Trustees sets
policies for the trustees' use of their allowance. OHA's
Executive Policy Manual states that the allowance is "not
intended to be used for personal gain by a Trustee[.]"
(Underscoring omitted.) OHA's Trustee Scholarship and Annual
Allowance Fund (TSAAF) Handbook states that political
contributions are not allowed. Trustees must submit quarterly
spending reports; OHA's controller reconciles the reports and
works with the trustees to clear any discrepancies. At the end
of the fiscal year, any unspent allowance must be returned to
OHA. If OHA disallows a trustee's spending, the amount is added
to what that trustee must repay to OHA at the end of the fiscal
year. The quarterly and fiscal-year-end reviews are tedious and
time-consuming because OHA staff manually review each
expenditure, many of which are small in amount, and it is
impossible to catch all improper spending. Thus, a particular
expense not being disallowed does not mean it was a proper use of
the trustee's allowance.

6
HRS § 84-39 was amended in 2017 to increase the maximum
administrative fine to $1,000 per violation. 2017 Haw. Sess. Laws Act 50, § 1
at 305.

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The Fair Treatment Law provided, in relevant part:

No . . . employee shall use or attempt to use the . . .
employee's official position to secure or grant unwarranted
privileges, exemptions, advantages, contracts, or treatment,
for [the employee] or others[.]

HRS § 84-13 (2012) (emphasis added).
Akana argues that the Commission applied the wrong
standard to determine what constituted "unwarranted" privileges.
She contends she may use her trustee allowance in ways she felt
would help OHA or its beneficiaries. She conflates her fiduciary
duty as an OHA trustee with her obligations under the Code of
Ethics. She again cites Kealoha v. Machado, 131 Hawai#i 62, 315
P.3d 213 (2013). As we previously stated, Machado does not
constrain the Commission from investigating alleged violations of
the Code of Ethics by OHA trustees, or from taking appropriate
action on violations.
1. Hawaiian Airlines Premier Club Membership. Akana
challenges the Commission's decision on Count 8, which charged:

53. Respondent AKANA, by using Trustee Annual
Allowance funds to purchase a Premier Club membership with
Hawaiian Airlines costing $249.00, used or attempted to use
her official position to secure an unwarranted personal
benefit for herself, in violation of HRS § 84-13 (COUNT 8).

Akana argues she believed her purchase "was in the best
interests of the OHA beneficiaries" because it "would save money
for the trust over time[.]" She also argues that she paid the
$249 back after OHA disallowed the expense. She does not
challenge these findings and conclusions:

II. FINDINGS OF FACT

. . . .
105. On or about July 15, 2014, Respondent Akana used $249
of Trustee Annual Allowance funds to purchase a
Hawaiian Airlines Premier Club membership (hereinafter
"Premier Club membership").

106. Benefits of the Premier Club membership included
access to Hawaiian Airlines' airport Premier Clubs,

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priority check-in and boarding, complimentary
"Unlimited TV & More Pack" on certain flights to and
from the mainland, and two free checked bags.

107. OHA had allowed Trustees to purchase Premier Club
memberships in the past, but a former [Board of
Trustees (BOT)] Chair stopped the practice before
Respondent Akana purchased her Premier Club membership
in 2014.
. . . .
110. Respondent Akana claimed that she saved OHA money by
paying for her Premier Club membership.

111. At the hearing, Respondent's attorney argued that
Respondent Akana saved money by paying for her Premier
Club membership rather than paying baggage fees for
three or four bags each way.

112. OHA's corporate account with Hawaiian Airlines
permitted each OHA traveler — including OHA Trustees —
to take one free checked bag.

113. The Premier Club membership permitted two free checked
bags - only one more free bag than already allowed by
OHA's corporate account with Hawaiian Airlines.

. . . .

115. Notwithstanding her knowledge that OHA's policy
regarding Premiere [sic] Club membership had changed,
Respondent Akana never consulted with the OHA fiscal
office about her purchase of a Premier Club membership
for herself.

. . . .
III. CONCLUSIONS OF LAW

. . . .

102. Respondent Akana purchased the Premier Club membership
knowing that it was disallowed. She informed the
Commission that she was aware that the practice of
Trustees being allowed to purchase this membership had
previously ended under a prior BOT Chairperson. Even
though this expenditure was disallowed by OHA, such
that Respondent Akana eventually used personal funds
to reimburse OHA for this purchase, she expended
Trustee Annual Allowance funds on this purchase and
submitted a quarterly report to OHA in which she
sought to have this purchase offset against her
Trustee Annual Allowance balance.

(Citations to evidence omitted.)

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Akana challenges these findings and conclusions:

II. FINDINGS OF FACT

. . . .
116. The Commission finds that Respondent Akana used or
attempted to use her Trustee Annual Allowance for her
personal benefit by purchasing a Premier Club
membership for herself.

. . . .
III. CONCLUSIONS OF LAW

. . . .
101. Although Respondent Akana maintains that she purchased
the Hawaiian Airlines Premier Club membership to save
money on baggage fees, Respondent Akana was already
entitled to one free bag when she traveled on Hawaiian
Airlines through OHA's corporate account. The Premier
Club membership allowed Respondent Akana to enjoy the
other personal benefits of membership — such as access
to the airline's club lounge and complimentary
"Unlimited TV & More Pack" on certain flights —
conferring an unwarranted benefit upon her.

These findings and conclusions are supported by substantial
evidence in the record and by the Commission's unchallenged
findings, and reflect an application of the correct rule of law.
The Commission did not abuse its discretion on this issue.
2. Cable Television Bills. Akana challenges the
Commission's decisions on Counts 10 and 12-36, which charged:

56. Respondent AKANA, by using Trustee Annual
Allowance funds to pay the total amount of Oceanic's monthly
bill for the Surf Pak Xtra package on or about each of the
dates listed below, where the approximate monthly cost of
the type of internet service she used was under $50.00, used
or attempted to use her official position to secure
unwarranted personal benefits for herself — that is, home
cable television service — in violation of HRS § 84-13:
a. November 20, 2015 ($127.90) (COUNT 10);

. . . .
c. January 22, 2016 ($127.90) (COUNT 12);
d. February 15, 2016 ($135.78) (COUNT 13);

e. March 5, 2016 ($132.43) (COUNT 14);
f. April 10, 2016 ($134.37) (COUNT 15);

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g. May 9, 2016 ($133.55) (COUNT 16);
h. June 6, 2016 ($133.55) (COUNT 17);

i. June 30, 2016 ($133.55) (COUNT 18);
j. August 8, 2016 ($133.55) (COUNT 19);
k. September 5, 2016 ($133.55) (COUNT 20);

l. October 22, 2016, ($136.83) (COUNT 21); and
m. November 24, 2016 ($136.83) (COUNT 22).
. . . .

59. Respondent AKANA, by using Trustee Annual
Allowance funds of $80.00 or $82.00 on or about each of the
dates listed below to pay a portion of Oceanic's or
Spectrum's total monthly bill for the Surf Pak Xtra package,
purportedly, for home internet service, when the approximate
monthly cost of the type of internet service she used was
under $50.00, used Trustee Annual Allowance funds to partly
pay for home cable television service. Respondent AKANA's
actions constituted the use or attempted use of her official
position to secure unwarranted personal benefits for herself
— that is, home cable television service — in violation of
HRS § 84-13:

a. December 21, 2016 (used $80.00 to pay
Oceanic) (COUNT 23);

b. January 20, 2017 (used $80.00 to pay Oceanic)
(COUNT 24);

c. February 13, 2017 (used $80.00 to pay
Oceanic) (COUNT 25);
d. March 15, 2017 (used $80.00 to pay Oceanic)
(COUNT 26);
e. April 20, 2017 (used $80.00 to pay Oceanic)
(COUNT 27);
f. May 20, 2017 (used $80.00 to pay Oceanic)
(COUNT 28);
g. June 25, 2017 (used $80.00 to pay Oceanic)
(COUNT 29);

h. July 21, 2017 (used $80.00 to pay Spectrum)
(COUNT 30);
i. August 24, 2017 (used $80.00 to pay Spectrum)
(COUNT 31);
j. September 10, 2017 (used $82.00 to pay
Spectrum) (COUNT 32);

k. October 10, 2017 (used $80.00 to pay
Spectrum) (COUNT 33);

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l. November 20, 2017 (used $80.00 to pay
Spectrum) (COUNT 34);
m. December 13, 2017 (used $80.00 to pay
Spectrum) (COUNT 35); and
n. December 30, 2017 (used $80.00 to pay
Spectrum) (COUNT 36).

Akana argues she "made proper discretionary decisions
to spend monies on OHA-related communications and to gain a
broader understanding of Hawaiian issues for in [sic] her role as
an OHA Trustee via watching CNN, Olelo and other news programs."
Akana does not challenge these findings:

117. In 2015 to 2017, Respondent Akana subscribed to a home
cable television and internet bundled service package
called "Surf Pak Xtra," offered by Oceanic Time Warner
Cable ("Oceanic"), a company that was rebranded as
"Spectrum" in or around 2017.
118. The Surf Pak Xtra package consisted of standard
television service as well as access to additional
channels, and "Extreme Internet" service.

119. In 2015 and 2016, Respondent Akana used Trustee Annual
Allowance funds to pay the entire amount of her
monthly bills from Oceanic for the Surf Pak Xtra
package.
. . . .

124. Respondent Akana used her Trustee Annual Allowance to
pay the entire amount of her monthly Oceanic cable
bill on or about the following dates, without
reimbursing OHA or the Trustee Annual Allowance fund
for the portion related to her home cable television
service:
a. November 20, 2015 ($127.90) (Count 10).

b. January 22, 2016 ($127.90) (Count 12).
c. February 15, 2016 ($135.78) (Count 13).
d. March 5, 2016 ($132.43) (Count 14).

e. April 10, 2016 ($134.37) (Count 15).

f. May 9, 2016 ($133.55) (Count 16).
g. June 6, 2016 ($133.55) (Count 17).
h. June 30, 2016 ($133.55) (Count 18).

. . . .

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130. On August 8, 2016, Respondent Akana used Trustee
Annual Allowance funds to pay for her entire Oceanic
cable bill ($133.55) (Count 19).

131. On September 5, 2016, Respondent Akana used Trustee
Annual Allowance funds to pay for her entire Oceanic
cable bill ($133.55) (Count 20).
132. Respondent Akana submitted her quarterly report for
July 1, 2016 - September 30, 2016 on October 7, 2016;
Respondent Akana's quarterly report included the
August 8, 2016 and September 5, 2016 payments to
Oceanic.
. . . .

134. [OHA] CEO [Kamana#opono] Crabbe's [October 17, 2016]
memorandum explained: "Standard TV, Digital Variety
Pak, 2-Way Addressable Box is not considered
communications to constituents. Only internet is
allowed under the TSAAF. Based on inquiry with
Oceanic customer service the breakdown of internet
charge is $47.89 (Internet $42.07 + Olelo Capital
Funding $0.26 + Cable franchise fee $3.58 + State GET
$1.98)."

135. OHA fiscal staff determined that OHA policy only
allowed Respondent Akana to use her Trustee Annual
Allowance to pay $47.89 for her monthly home internet
service from Oceanic.

136. The portion of the Oceanic bill not attributable to
Respondent Akana's home internet service was
disallowed by OHA fiscal staff because those Oceanic
services were for the personal benefit of Respondent
Akana.
. . . .

148. On or about October 22, 2016 and November 24, 2016,
Respondent Akana made payments of $136.83 — the full
amount of her monthly bill for the Surf Pak Xtra
package, including her home cable television service —
to Oceanic (Counts 21 and 22).

149. The checks for these expenditures were drawn from the
same bank account as Respondent's previous
expenditures to pay for her Oceanic cable bills.

150. On the memo line of the check pertaining to the
November 24, 2016 expenditure is a handwritten note
that says "allowable."
151. Despite receiving notification from CEO Crabbe on
October 17, 2016 and November 21, 2016 that
expenditures on cable television service would be
disallowed and that internet service could be claimed
at only $47.89, Respondent Akana claimed $80.00 of
Trustee Annual Allowance funds when she submitted her
quarterly report for the October 2016 and November
2016 expenditures.

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152. Respondent Akana was charged with using her Trustee
Annual Allowance to pay the entire amount ($136.83) of
her Oceanic cable bills on October 22, 2016 (Count 21)
and November 24, 2016. (Count 22). Respondent Akana
appears to have initially paid for the entire amount
of both bills with funds from a checking account used
by Respondent for her previous Trustee Annual
Allowance expenditures. However, at a later date,
Respondent Akana claimed $80 of Trustee Annual
Allowance funds for each of those payments.

153. Although Respondent used her Trustee Annual Allowance
to pay $80 and not $136.83 to Oceanic on October 22,
2016 (Count 21) and November 24, 2016 (Count 22), this
amount was still more than Respondent was allowed to
claim for her home internet service.

154. On or about December 21, 2016, Respondent Akana again
used Trustee Annual Allowance funds to pay $80.00 to
Oceanic (Count 23).

. . . .

160. In documentation attached with the December 21, 2016
Oceanic expenditure (Count 23), there appears to be a
printout of a screen shot of the Oceanic website
listing three options for internet service: "Extreme"
Internet - 100/10 Mbps - for $29.95 a month, "Ultimate
200" Internet - 200/20 Mbps - for $39.99 a month; and
"Ultimate 300" Internet - 300/20 Mbps - for $59.99 a
month.

161. Just below this screen shot appears a handwritten
note:

4/5/17 $59.99 monthly rate
+$10.00 modem lease
+$10.00 estimated taxes
$79.99

162. This handwritten note provides the only possible basis
on which Respondent Akana may have determined that she
could use $80 a month of Trustee Annual Allowance
funds (rather than $47.89 a month) for her home
internet service. However, as set forth above,
Complainant introduced competent and substantial
evidence that the cost of home internet service was
less than $50 a month, and Respondent Akana did not
present any evidence to contradict Complainant's
evidence.
163. Moreover, this screenshot and handwritten note below
the screenshot do not support Respondent Akana's
claims for $80.00 a month for home internet service.
As part of the Surf Pak Xtra package, Respondent Akana
received "Extreme Internet" — the lowest level of
internet service, offered at $29.95 a month. Thus, if
Respondent Akana was, in fact, using $59.99 a month as
a baseline for her home internet service, it would
mean she was using an artificially high baseline — the
most expensive internet service ("Ultimate 300" at
$59.99 a month), rather than the less expensive

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service she was actually receiving ("Extreme" at
$29.95 a month).
. . . .
166. Between January 2017 and December 2017, Respondent
Akana continued to use Trustee Annual Allowance funds
to pay approximately $80 — for her home internet
service and to subsidize her home cable television
service, without reimbursing OHA or the Trustee Annual
Allowance fund for such expenditures:
a. January 20, 2017 ($80) (Count 24).
b. February 13, 2017 ($80) (Count 25).

c. March 15, 2017 ($80) (Count 26).

d. April 20, 20017 [sic] ($80) (Count 27).
e. May 20, 2017 ($80) (Count 28).
f. June 25, 2017 ($80) (Count 29).

g. July 21, 2017 ($80) (Count 30).

h. August 24, 2017 ($80) (Count 31).
i. September 10, 2017 ($82) (Count 32).

j. October 10, 2017 ($80) (Count 33).

k. November 20, 2017 ($80) (Count 34).

1. December 13, 2017 ($80) (Count 35).

m. December 30, 2017 ($80) (Count 36).

(Footnotes and citations to evidence omitted.)
Akana challenges these findings and conclusions:

II. FINDINGS OF FACT

. . . .
120. OHA policy (stated in the 2013 Amendment to the
Executive Policy Manual) allowed Trustee Annual
Allowance funds to be used for expenses for
communications with constituents. Thus, internet
service was an allowed expense. However, the policy
did not provide for home cable television service as
an allowable expense.
121. The Commission finds that Respondent Akana's testimony
that she very rarely watched television or mostly
watched Olelo or the news is not a sufficient
justification to use her Trustee Annual Allowance to
pay for her home cable television service. Instead,
the Commission finds that Respondent Akana's home
cable television service was a personal benefit to
Respondent.

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122. Respondent Akana's use of Trustee Annual Allowance
funds to pay the entire amount of her monthly Oceanic
bill was not allowable under OHA policy because the
Oceanic bill included charges for home cable
television service, which was a personal benefit to
her.

. . . .
125. For each of the transactions listed above (relating to
Count 10 and Counts 12-18), the Commission finds that
Respondent Akana used her Trustee Annual Allowance for
her personal benefit by paying for her home cable
television service.
. . . .

147. For the August 8, 2016 and September 5, 2016
transactions (relating to Counts 19 and 20), the
Commission finds that Respondent Akana used or
attempted to use her Trustee Annual Allowance for her
personal benefit by paying for her home cable
television service.

. . . .

164. As such, in each of the months in which Respondent
used more than $47.89 of Trustee Annual Allowance
funds to pay her Oceanic bill, the Commission finds
that Respondent was using Trustee Annual Allowance
funds to subsidize her purchase of home cable
television service — despite previously being informed
by OHA staff that she was allowed to claim only $47.89
for internet service. Thus, she received an
unwarranted benefit of approximately $32.11 per month
($80.00 - $47.89).

165. By using $80.00 a month of Trustee Annual Allowance
funds to pay her Oceanic bill, Respondent Akana also
failed to comply with the directive from CEO Crabbe
that Trustee Annual Allowance funds not be used for
home cable television service.

. . . .

167. For each of the transactions listed above (relating to
Counts 21-36), the Commission finds that Respondent
Akana used her Trustee Annual Allowance for her own
personal benefit by subsidizing her payments for her
home cable television service.
. . . .
III. CONCLUSIONS OF LAW

. . . .
106. Respondent Akana used or attempted to use her official
position to secure unwarranted personal benefits for
herself — that is, home cable television service — in
violation of HRS § 84-13 by paying for or attempting
to pay for all or some of the monthly charges for

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Respondent's home cable television service with
Trustee Annual Allowance funds on or about each of the
dates listed below:

a. November 20, 2015 (Count 10);
b. January 22, 2016 (Count 12);
c. February 15, 2016 (Count 13);

d. March 5, 2016 (Count 14);
e. April 10, 2016 (Count 15);
f. May 9, 2016 (Count 16);

g. June 6, 2016 (Count 17);

h. June 30, 2016 (Count 18);
i. August 8, 2016 (Count 19);
j. September 5, 2016 (Count 20);

k. October 22, 2016 (Count 21);

1. November 24, 2016 (Count 22);
m. December 21, 2016 (Count 23);

n. January 20, 2017 (Count 24);

o. February 13, 2017 (Count 25);

p. March 15, 2017 (Count 26);

q. April 20, 2017 (Count 27);
r. May 20, 2017 (Count 28);

s. June 25, 2017 (Count 29);

t. July 21, 2017 (Count 30);
u. August 24, 2017 (Count 31);
v. September 10, 2017 (Count 32);

w. October 10, 2017 (Count 33);

x. November 20, 2017 (Count 34);
y. December 13, 2017 (Count 35); and
z. December 30, 2017 (Count 36).
107. Even though the August 8, 2016 (Count 19) and
September 5, 2016 (Count 20) expenditures were
disallowed in part by OHA, such that Respondent Akana
eventually used personal funds to pay for a portion of
these purchases, Respondent submitted a quarterly
report to OHA in which she sought to have these

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purchases offset against her Trustee Annual Allowance
balance. Her attempts to use Trustee Annual Allowance
funds to confer a personal benefit upon herself are
violations of the Fair Treatment Law.
108. Each expenditure made by Respondent Akana out of the
Trustee Annual Allowance for home television service
constitutes a separate violation of HRS § 84-13.
109. There is no evidence to suggest that Respondent Akana
reimbursed OHA or the Trustee Annual Allowance fund
for any of these purchases of home cable television
service, other than her eventual use of personal funds
to pay for a portion of the August 2016 and September
2016 purchases. However, even if Respondent Akana had
reimbursed OHA or the Trustee Annual Allowance fund,
each attempt by Respondent Akana to use her official
position to make the above-referenced purchases of
home cable television service using Trustee Annual
Allowance funds constitutes a violation of HRS
§ 84-13.
110. The Commission concludes that the violations in Counts
21-36 are especially troubling. Respondent Akana
continued to claim $80 for reimbursement for internet
service even after being informed by OHA staff that
she was only allowed to claim $47.89. In other words,
Respondent Akana dishonestly continued to claim $80
for internet service knowing that she was not entitled
to reimbursement from her Trustee Allowance for this
amount.

(Citations to evidence omitted.)
The Commission's findings and mixed findings and
conclusions are supported by substantial evidence in the record,
including testimony by OHA's controller Gloria Li, OHA's former
chief financial officer Hawley Iona, and OHA's former controller
John Kim, all of whom the Commission found to be credible. They
are also supported by the Commission's unchallenged findings.
They were not clearly erroneous, and reflect an application of
the correct rule of law. They will not be overturned. See Est.
of Klink ex rel. Klink v. State, 113 Hawai#i 332, 351, 152 P.3d
504, 523 (2007). The Commission did not abuse its discretion in
deciding that Akana using her trustee allowance to pay for her
home cable television service was an unwarranted privilege.
3. Food Purchases. Akana challenges the Commission's
decisions on Counts 38 through 48, which charged:

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62. Respondent AKANA, by using Trustee Annual
Allowance funds on or about each of the following dates, for
the purposes and in the amounts stated below, to pay for
food or meals for her [sic] herself and/or OHA Trustees
and/or OHA staff, used or attempted to use her official
position to secure unwarranted personal benefits for OHA
personnel, including herself, in violation of HRS § 84-13:
. . . .

b. March 17, 2014, refreshments for staff,
from Leonard's Bakery, $17.80 (COUNT 38);
c. July 3, 2014, food for a "going away
party" for a staff member, from 1132 Cafe
& Catering, $268.59 (COUNT 39);

d. August 4, 2014, breakfast for staff, from
Liliha Bakery, $31.94 (COUNT 40);
e. February 10, 2015, food for a staff
"birthday celebration," from Zippy's
Nimitz, $61.83 (COUNT 41);

f. January 23, 2015, manapua for staff, from
Royal Kitchen, $66.49 (COUNT 42);

g. July 9, 2015, food for a staff meeting,
from Liliha Bakery, $39.48 (COUNT 43);

h. December 2, 2015, food for staff from
Chinatown Express Ala Moana, $31.01 (COUNT
44);

i. August 15, 2016, refreshments for staff
from Leonard's Bakery, $20.73 (COUNT 45);

j. October 5, 2016, lunch for staff from
Tanaka Saimin, $43.66 (COUNT 46);

k. February 17, 2017, the cost of food that
had been purchased for a party for a staff
member's "last day," $25.00 (COUNT 47);
and

l. December 5, 2017, noodles from Royal
Kitchen for a "pot luck" OHA Trustees'
holiday party, $23.72 (COUNT 48).

Each expenditure made by Respondent AKANA out of
Trustee Annual Allowance funds to pay for food [for]
herself, other OHA Trustees, and/or OHA staff constituted a
separate violation of HRS § 84-13.

Akana argues that she may use her trustee allowance to
buy food for staff meetings and for functions where OHA work was
done or where OHA beneficiaries attended. She challenges these
findings:

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174. 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. As former
Controller Kim explained, "we looked for some kind of
link that established [that trustees were] working
with either beneficiaries or constituents or some kind
of other partners that we would typically work with."
175. Trustee food expenditures for staff meetings could be
permissible under the policy if there was a "clear
business purpose" for the meeting, such as bringing in
lunch to a remote location during a staff retreat, and
if the expenditure amount was reasonable.
176. However, a Trustee's notation that Trustee Annual
Allowance funds were used for a "staff lunch" would
not be sufficient to justify a food expenditure
because such a notation would not indicate a clear
business need for the expenditure.

177. Expenditures for purely internal functions, including
a staff birthday party or a going-away party for a
staff member, would typically be disallowed under OHA
policy.

(Brackets in original) (citations to evidence omitted). OHA's
Trustee Allowance Meal Form cites to the Board of Trustees
Executive Policy Section 3.5.n, which lets trustees use their
allowance to cover "associated costs to attend conferences,
seminars or meetings[.]" OHA's Trustee Sponsorship and Allowance
Fund Internal Guidelines and Procedures lists permissible
spending to include: (a) developing and maintaining an ongoing
communication network with beneficiaries and the general public;
(b) promoting a broader understanding of Hawaiian issues within
the Hawaiian community and among the general public to encourage
participating in the resolution of those issues; (c) covering
costs of social and charitable functions a trustee is expected to
support, including sponsoring or assisting a faith based
organization's halau, youth group, extracurricular after school
activities and sports activities that do not involve religious
practices or activities; (d) covering official travel,
registration fees, and associated costs to attend conferences,
seminars or meetings; (e) providing support for beneficiaries in
their personal quest for self-improvement, capacity building, and
education; (f) providing funds to purchase school and educational

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supplies and materials, audio-visual presentation equipment, and
capacity building aids for schools and organizations; and
(g) providing compassionate help to beneficiaries and their
families for emergencies, natural disasters, and other times of
need.
On Count 38, the Commission found the "purchase of
refreshments for a staff meeting was a personal expense rather
than an expense that was necessary or required for OHA business."
On Count 39, the Commission found the "purchase of food for a
staff 'going away' party or for 'morale building' was a personal
expense rather than an expense that was necessary or required for
OHA business." On Count 40, the Commission found the "purchase
of refreshments for a staff meeting was a personal expense rather
than an expense that was necessary or required for OHA business."
On Count 41, the Commission found the "purchase of food for a
birthday lunch celebration for staff or for 'morale building' was
a personal expense rather than an expense that was necessary or
required for OHA business." On Count 42, the Commission found
the "purchase of food for an internal staff meeting was a
personal expense rather than an expense that was necessary or
required for OHA business." On Count 43, the Commission found
the "purchase of food for an internal staff meeting was a
personal expense rather than an expense that was necessary or
required for OHA business." On Count 44, the Commission found
the "purchase of food for an internal staff meeting was a
personal expense rather than an expense that was necessary or
required for OHA business." On Count 45, the Commission found
the "purchase of refreshments for staff was a personal expense
rather than an expense that was necessary or required for OHA
business." On Count 46, the Commission found the "purchase of
lunch for an internal staff meeting was a personal expense rather
than an expense that was necessary or required for OHA business."
On Count 47, the Commission found the "purchase of lunch for a
staff member's last day at work or for 'morale building' was a
personal expense rather than an expense that was necessary or

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required for OHA business." On Count 48, the Commission found
the "purchase of food for a [Board of Trustees] staff holiday
party or for 'morale purposes' was a personal expense rather than
an expense that was necessary or required for OHA business."
These findings were supported by substantial evidence and were
not clearly erroneous.
The Commission found and concluded:

111. Although OHA policy relating to the purchase of food
with Trustee Annual Allowance funds was not the model
of clarity, substantial evidence was adduced that
Trustees were not allowed to spend Trustee Annual
Allowance funds on staff parties, or on purely
internal meetings absent some documented need to do
so.

112. Even if OHA policy allowed Trustees to use Trustee
Allowance funds for food expenditures without
restriction, the State Ethics Code does not. The Fair
Treatment law does not permit an employee to use her
official position to obtain unwarranted benefits for
herself or anyone else. The Fair Treatment law
prohibits Trustees from using Trustee Allowance funds
for food expenditures to obtain unwarranted personal
benefits for themselves or other OHA employees.

113. Respondent Akana used her Trustee Allowance to
purchase refreshments or lunches for herself and her
staff. Such expenditures are generally considered
personal expenses for state employees unless they are
necessary for state business. In this case, the Fair
Treatment law prohibited Respondent's expenditures of
Trustee Allowance funds for personal purchases of food
for herself and her staff unless the expenditures were
necessary or required for state (i.e., OHA) business.
114. The Commission understands that Hawaii has a cultural
practice of using food to express appreciation and
Aloha. The State Ethics Code does not prohibit OHA
employees from purchasing food to share with work
colleagues. However, Trustees seeking to purchase
food as an expression of appreciation to OHA staff
should make these purchases using personal funds
rather than the OHA Trustee Allowance, which is
specifically dedicated to benefitting Hawaiian
beneficiaries by, among other things, promoting a
broader understanding of Hawaiian issues or developing
a communication network with beneficiaries and the
general public. Using Trustee Allowance funds to
purchase food for the office without any clear
business need provides OHA employees with an
unwarranted benefit in contravention of the Fair
Treatment Law and the purpose of the Trustee Allowance
fund.

115. The Commission concludes, based upon competent and
substantial evidence, that Respondent Akana's food

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purchases were personal expenses and were not
necessary or required for OHA business. The purchase
of pastries, coco puffs, or manapua for a staff
meeting is a personal expense rather than an expense
that is necessary for the performance of OHA business.
(Counts 38, 40, 42, 43, 45). The purchase of food for
a staff lunch — even if work is discussed during lunch
-- is also a personal expense unless it is necessary
for staff to perform OHA business during lunch (Counts
44, 46). The Commission concludes that Respondent
Akana's use of her Trustee Annual Allowance fund to
pay for these personal food expenses was an
unwarranted personal benefit for Respondent Akana and
OHA staff.
116. Likewise, although the Commission understands that a
Trustee — or any state agency head -- may wish to
promote office morale by purchasing food to celebrate
staff birthdays or holiday parties, this was not an
allowed expenditure under OHA policy; nor was it
allowed under the State Ethics Code. These are
personal expenses for which Trustee Annual Allowance
funds should not have been used. The State Ethics
Code does not permit the expenditure of Trustee Annual
Allowance funds (rather than personal funds) on staff
birthday, going away, or holiday parties (Counts 39,
41, 47, 48). The Commission concludes that Respondent
Akana's use of her Trustee Annual Allowance fund to
pay for these personal food expenses was an
unwarranted personal benefit for Respondent Akana and
OHA staff.

117. The Commission is not persuaded by Respondent Akana's
attempt to justify her food expenditures by asserting
that members of her staff for whom she purchased
refreshments and lunches were also OHA beneficiaries.
The evidence clearly showed that Respondent's food
purchases were to benefit herself and her "staff" —
that is, the employees who worked for her at OHA. The
evidence does not support Respondent's contention that
she used Trustee Annual Allowance funds to purchase
food for her "staff" because they were OHA
beneficiaries.
118. Respondent Akana used or attempted to use her official
position to secure unwarranted personal benefits for
herself and other OHA employees, in violation of HRS
§ 84-13, by paying for food for herself and/or OHA
Trustees and/or OHA staff with Trustee Annual
Allowance funds on the following dates:
a. March 17, 2014, "refreshments for staff
meeting," from Leonard's Bakery, $17.80 (Count
38);

b. July 3, 2014, food for a staff "going away
party", [sic] from 1132 Café & Catering, $268.59
(Count 39);

c. August 4, 2014, food for a staff[]"working
meeting," from Liliha Bakery, $31.94 (Count 40);

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d. February 10, 2015, food for a "birthday
celebration" for staff, from Zippy's Nimitz,
$61.83 (Count 41);

e. January 23, 2015, manapua for staff, from Royal
Kitchen, $66.49 (Count 42);

f. July 9, 2015, food for a "staff meeting," from
Liliha Bakery, $39.48 (Count 43);

g. December 2, 2015, food for a "working lunch"
with staff, from Chinatown Express Ala Moana,
$31.01 (Count 44);
h. August 15, 2016, "refreshments for staff" from
Leonard's Bakery, $20.73 (Count 45);

i. October 5, 2016, lunch for a "staff lunch," from
Tanaka Saimin, $43.66 (Count 46);
j. February 17, 2017, the cost of food that had
been purchased for a staff member's "last day,"
$25.00 (Count 47); and

k. December 5, 2017, noodles from Royal Kitchen for
a "pot luck" OHA Trustees' holiday party, $23.72
(Count 48).
119. Each expenditure made by Respondent Akana out of
Trustee Annual Allowance funds to pay for food for
herself, other OHA Trustees, and/or OHA staff
constitutes a separate violation of HRS § 84-13.
120. Even if one or more of these purchases had been
"disallowed" by OHA, such that Respondent Akana
eventually used personal funds to pay for the
expenditures, each attempt by Respondent Akana to use
her official position to make the above-referenced
purchases of food constitutes a violation of HRS
§ 84-13.

These mixed findings and conclusions are supported by
substantial evidence in the record, and by the Commission's
unchallenged findings. They were not clearly erroneous, and
reflect an application of the correct rule of law. The
Commission's findings that Akana spending her allowance on
refreshments for internal staff meetings, parties, and "morale
building" were for her, her staff's, and her fellow trustees'
benefit, and not to benefit OHA beneficiaries, was not clearly
erroneous. The Commission's conclusions that Akana's spending
was an unwarranted privilege in violation of the Fair Treatment
Law was not wrong, an abuse of discretion, or arbitrary or
capricious.

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4. Political Contributions. Akana challenges the
Commission's decisions on Counts 49 through 51, which charged:

64. Respondent AKANA, by using Trustee Annual
Allowance funds to make a political contribution of $50.00
to the Hawaii County Democrats on or about February 11,
2014, used or attempted to use her official position for
political purposes — that is, to unfairly benefit a
political party — in violation of HRS § 84-13 (COUNT 49).

65. Respondent AKANA, by using Trustee Annual
Allowance funds to make a political contribution of $50.00
to the Democratic National Committee on or about
February 11, 2014, used or attempted to use her official
position for political purposes — that is, to unfairly
benefit a political party — in violation of HRS § 84-13
(COUNT 50).
66. Respondent AKANA, by using Trustee Annual
Allowance funds on or about December 5, 2017 to make a
donation of $500.00 to pay for entertainment for the Kanaka
Maoli Political Action Committee event, used or attempted to
use her official position for political purposes — that is,
to unfairly benefit one or more political action committees
— in violation of HRS § 84-13 (COUNT 51).

Akana argues that her $50 contributions to the Hawaii
County Democrats and the Democratic National Committee were both
allowed by OHA, or OHA "at least allowed one and the other was
repaid[.]" We've already rejected the argument that Akana could
not have violated the Code of Ethics because her spending was not
disallowed by OHA.
Akana also argues that her donations were proper
because they benefitted "social platforms" and "social events"
and that her $500 contribution to Kanaka Maoli was "to pay DeMont
Connor for entertainment for Kanaka Maoli, an event presented on
January 16, 2018, by the Ho#omana Pono Political Action Committee
and the Ka Lahui Hawai#i Political Action Committee."
Akana does not challenge these findings:

Count 49

. . . .
277. The "Hawaii County Democrats" is affiliated with the
Democratic Party of Hawaii, a political party.

278. Margaret Wille, the Chair of the Democratic Party for
the County of Hawaii, was called as a witness by
Respondent Akana.

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279. Every year, there is a county convention of the
Democratic Party to which all Democratic candidates
and elected officials are invited.

280. The public is invited to attend and watch the event,
but only Democratic officials and candidates are
allowed to speak:
Q. (Respondent's Counsel) And just to be
clear, it's not just all elected officials
and all candidates within the democratic
party. It's bipartisan; is that accurate?
A. (Ms. Wille) No. It's — it is democrat, all
democrats.

Tr. IV:617:25 - 618:10. See also Tr. IV:618:18 - 619:3
("We don't — we don't invite — there's a republican
candidate, they're not invited to speak.").

281. Donations received for the event are used to cover
expenses at the event, with any extra proceeds rolled
over to the next political event - such as the Grand
Rally the night before the primary election.
282. At one of the Hawaii County Democrats' events, some
Republicans were handing out materials and Ms. Wille
"sort of shooed them"; Republicans would not be
permitted to take over the Hawaii County Democrats'
event.
. . . .

284. Although Respondent Akana maintains that her $50
donation to the Hawaii County Democrats was for
refreshments for the event, she reported it on her
quarterly report (January 1, 2014 - March 31, 2014) as
a "political contribution."

. . . .
Count 50

. . . .

290. The Democratic National Committee is a political
party.

291. Respondent Akana's quarterly report (January 1, 2014 -
March 31, 2014) included supporting documentation for
Respondent's political contribution to the Democratic
National Committee. The supporting documentation
included a copy of a Democratic National Committee
donation form soliciting donations "to help take back
the House, protect our Senate majority, and win
crucial Democratic victories at all levels."
292. Respondent Akana reported the $50 donation to the
Democratic National Committee on her quarterly report
as a "political contribution."

. . . .

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Count 51

. . . .
296. On or about December 5, 2017, Respondent Akana used
$500 of Trustee Annual Allowance funds to pay DeMont
Connor for entertainment for Kanaka Maoli, an event
presented on January 16, 2018, by the Ho#omana Pono
Political Action Committee (HPAC) (of which Mr. Connor
was President[)] and the Ka Lahui Hawai#i Political
Action Committee (KPAC)[.]
297. Respondent Akana reported the $500 payment to DeMont
Connor as a "Donation for entertainment for 01/16/18
event" on her quarterly report for October 1, 2017 -
December 31, 2017.
298. Respondent Akana's Trustee Allowance Beneficiary/
Organization Donation Form described the purpose of
the $500 donation as, "Funding For Entertainment At
January 16, 2018 Event."
299. In an email to Respondent Akana's aide Kay Watanabe,
dated November 29, 2017, DeMont Connor stated: "Aloha
e Kay! Here is the flyer for the event on January 16,
2018. I am NOT asking funding for the political event.
My request is for Entertainment."

(Some citations to evidence omitted.)
On Count 49, Akana challenges the Commission's finding
that she "used her Trustee Annual Allowance to benefit a
political party by making a political contribution to the Hawaii
County Democrats on or about February 11, 2014." She
acknowledges that OHA's TSAAF Handbook "states explicitly that
'political contributions' are not allowed[.]" But she argues
that "the fiduciary duties given an OHA trustee take precedence
over OHA internal policy or guidelines." She hasn't explained
why she reasonably believed she had a fiduciary duty to give $50
to the Hawaii County Democrats, but not to any other political
organization (other than the Democratic National Committee).
The Commission found and concluded:

123. Respondent Akana used or attempted to use her official
position to provide an unwarranted benefit to a
political party in violation of HRS § 84-13 (Count 49)
by making a political contribution of $50 to the
Hawaii County Democrats on or about February 11, 2014
with her Trustee Annual Allowance funds (Count 49).

. . . .

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128. One of the basic precepts of the State Ethics Code is
that state employees cannot use state resources (or in
this case, resources given to a state employee because
of her official position) for political campaign
purposes or activities. Additionally, OHA policy
clearly prohibited the use of Trustee Annual Allowance
funds for political contributions or political action
committee events. Thus, Respondent Akana should have
been well aware that the use of Trustee Allowance
funds for political contributions or political action
committee events (Counts 49-51) was prohibited.

These mixed findings and conclusions are supported by
substantial evidence in the record, and by the Commission's
unchallenged findings. They were not clearly erroneous, and
reflect an application of the correct rule of law. On this
record, we cannot conclude that the Commission abused its
discretion in determining that Akana's spending violated the Fair
Treatment Law.
On Count 50, Akana challenges the Commission's finding
that she "used her Trustee Annual Allowance to benefit a
political party by making a political contribution to the
Democratic National Committee on or about February 11, 2014."
She makes no specific arguments to challenge the Commission's
mixed finding and conclusion:

124. Respondent Akana used or attempted to use her official
position to provide an unwarranted benefit to a
political party in violation of HRS § 84-13 by making
a political contribution of $50 to the Democratic
National Committee on or about February 11, 2014 with
her Trustee Annual Allowance funds (Count 50).

We cannot conclude that the Commission abused its discretion by
determining that Akana's spending violated the Fair Treatment
Law.
On Count 51, Akana challenges these findings and
conclusions:

II. FINDINGS OF FACT

. . . .

300. Notwithstanding Mr. Connor's statement that he was not
asking for funding for the "political event" on
January 16, 2018, Respondent Akana's donation to
Mr. Connor was for the purpose of funding

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entertainment for the event and therefore directly
benefitted the political action committee event.
301. OHA policy prohibited the use of Trustee Annual
Allowance funds for this contribution to a political
action committee event.

. . . .
303. The Commission finds that Respondent Akana used her
Trustee Annual Allowance to benefit one or more
political action committees by making a contribution
on or about December 5, 2017, for entertainment for
the Kanaka Maoli political action committee event
presented by HPAC and KPAC.

. . . .
III. CONCLUSIONS OF LAW

. . . .

125. Respondent Akana used or attempted to use her official
position to provide an unwarranted benefit to one or
more political action committees in violation of HRS
§ 84-13 by using Trustee Annual Allowance funds to
make a contribution of $500 on or about December 5,
2017 to pay for entertainment for the Kanaka Maoli
Political Action Committee event (Count 51).

Akana argues her spending was for "OHA beneficiaries
solely for entertainment purposes." Substantial evidence in the
record shows that the entertainment for which Akana paid was part
of a political event, and that trustee allowances were not to be
used as "resources for the support of any political activity[.]"
On this record, we cannot conclude that the Commission abused its
discretion by determining that Akana's spending violated the Fair
Treatment Law.

G. The Commission's findings and conclusions
about Akana's violations of the Gifts
Reporting Law and Gifts Law were supported by
substantial evidence and were neither clearly
erroneous nor wrong.

Counts 1 through 4 alleged that Akana violated the
Gifts Reporting Law. The Gifts Reporting Law requires that a
state employee file an annual disclosure statement with the
Commission if:

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(1) The . . . 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 . . . employee; and

(3) The gift is not exempted by subsection (d) from
reporting requirements under this subsection.[7]

HRS § 84-11.5(a) (2012).
Counts 5 and 6 alleged that Akana violated the Gifts
Law. The Gifts Law provides:

No . . . employee shall solicit, accept, or receive,
directly or indirectly, any gift, . . . under circumstances
in which it can reasonably be inferred that the gift is
intended to influence the . . . employee in the performance
of the . . . employee's official duties or is intended as a
reward for any official action on the . . . employee's part.

HRS § 84-11 (2012).
The Commission found, and Akana does not challenge,
that: In 2013, Akana sued the other OHA trustees over OHA's
practices and procedures for giving trustees and beneficiaries
access to minutes and other records of executive session
meetings. The trustee defendants counterclaimed against Akana
for breaching her fiduciary duty and revealing privileged and
confidential information. Some of Akana's legal fees were paid
by Abigail Kawananakoa, an OHA beneficiary. Akana's lawsuit and
the other trustees' counterclaim were settled in November 2017.

7
HRS § 84-11.5(d) (2012) exempts gifts: (1) received by will or
intestate succession; (2) received from distribution of any inter vivos or
testamentary trust established by a spouse or ancestor; (3) from a spouse,
fiance, fiancee, any relative within four degrees of consanguinity or the
spouse, fiance, or fiancee of such a relative (but a gift from such a person
is a reportable gift if the person is acting as an agent or intermediary for
any person not covered by HRS § 84-11.5(d)(3)); (4) that are political
campaign contributions complying with state law; (5) available to or
distributed to the public generally without regard to the official status of
the recipient; (6) that, within thirty days after receipt, are returned to the
giver or delivered to a public body or to a bona fide educational or
charitable organization without the donation being claimed as a charitable
contribution for tax purposes; and (7) of approximately equal value exchanged
on holidays, birthdays, or special occasions. None of these exemptions apply
in this case.

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In February 2017 (while Akana's lawsuit was still pending),
Kawananakoa sued OHA, OHA trustee and former board chair
Robert K. Lindsey, and OHA chief executive officer Kamana#opono
Crabbe. Kawananakoa sought to set aside Crabbe's employment
contract with OHA. Akana's answer to the charges admitted that
Kawananakoa had interests that may have been affected by official
action or lack of action by Akana, and that Akana participated in
at least one OHA Board of Trustees executive session meeting
about Kawananakoa's lawsuit.
Akana challenges these findings and conclusions:

II. FINDINGS OF FACT

. . . .

21. As an OHA beneficiary who has over many years
maintained a personal interest in OHA business,
Ms. Kawananakoa had interests that may have been
affected by official action or lack of action on the
part of Respondent Akana.

. . . .

36. Respondent Akana participated in at least one
executive session meeting of the OHA BOT regarding the
Kawananakoa v. OHA lawsuit. Further Statement ¶34;
Answer ¶1 (admits ¶34).

37. Specifically, Respondent Akana was present for the
entire executive session of the BOT on March 9, 2017,
in which the BOT consulted with its attorney, Paul
Alston, regarding the Kawananakoa v. OHA lawsuit.

. . . .

44. Respondent Akana received the value of
Ms. Kawananakoa's gifts — payments of more than
$70,000 — in the form of legal services provided by
the Bickerton Dang law firm.
. . . .
III. CONCLUSIONS OF LAW

. . . .
52. Ms. Kawananakoa had interests that may have been
affected by official action or lack of action on the
part of Respondent Akana, which Respondent admitted in
her Answer to the Further Statement of Alleged
Violation. Further Statement ¶33; Answer ¶1 (admits
to ¶33).
53. Ms. Kawananakoa's interests stemmed from her status as
an OHA beneficiary, as the plaintiff in the

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Kawananakoa v. OHA lawsuit, and as the funder of the
Akana v. OHA BOT lawsuit (which Respondent Akana
brought in both her individual and official
capacities).

. . . .
56. As the plaintiff in a lawsuit against OHA,
Ms. Kawananakoa — the source of the gifts (payments of
legal fees) to Respondent Akana — had interests that
may have been affected by official action, or lack
thereof, by Respondent Akana. Respondent Akana, as a
member of the BOT overseeing and directing OHA, a
defendant in the lawsuit, could and did participate in
at least one executive session meeting in which the
OHA Trustees discussed the Kawananakoa lawsuit with
their legal counsel and was in a position to take
official action affecting Ms. Kawananakoa (such as a
recommendation to settle the lawsuit).
57. As the source of funding for the Akana v. OHA BOT
lawsuit, Ms. Kawananakoa had interests that may have
been affected — and indeed were affected — by
Respondent Akana's decision (Respondent's "official
action") to initiate and continue her lawsuit against
the other OHA Trustees, and to defend against the
other Trustees' counterclaim against her.
Ms. Kawananakoa's interests stemmed from her
continuing financial support for Respondent Akana's
lawsuit and legal defense.

. . . .
60. The legal fees paid by Ms. Kawananakoa to the
Bickerton Dang law firm for legal services provided to
Respondent Akana were gifts to Respondent Akana within
the meaning of HRS § 84-11.5; Bickerton Dang's legal
services, paid for by Ms. Kawananakoa, were
"service[s]" that were "received directly or
indirectly" by Respondent Akana.

61. Each of the following payments of legal fees by
Ms. Kawananakoa to the Bickerton Dang law firm for
legal services provided to Respondent Akana was a gift
valued at over $200:
a. July 1, 2015 ($10,478.52) (Count 1);

b. August 10, 2015 ($9,521.48) (Count 2);
c. March 24, 2016 ($6,000.00) (Count 3);
d. April 19, 2016 ($24,125.50) (Count 4).

62. None of these gifts were exempted by HRS § 84-11.5(d)
from the gifts reporting requirements.
63. Gifts received at different times must be reported
separately: HRS § 84-11.5 requires an individual
filing a gifts disclosure statement to report "[t]he
date the gift was received[.]" HRS § 84-11.5(c)(3);
see also HRS § 84-11.5(a)(l) (requires reporting of
"any gift or gifts valued singly or in the aggregate

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in excess of $200, whether the gift is in the form of
money, service, goods, or in any other form").
64. Each payment of legal fees by Ms. Kawananakoa to the
Bickerton Dang law firm for legal services provided to
Respondent Akana, constituted a separate and distinct,
reportable gift for purposes of HRS § 84-11.5.
65. Respondent Akana was clearly required to report each
payment of legal fees by Ms. Kawananakoa to the
Bickerton Dang law firm on an annual gifts disclosure
statement filed with the Commission, by the deadlines
set forth in HRS § 84-11.5.
66. Respondent Akana was required to report
Ms. Kawananakoa's payment of legal fees on July 1,
2015 ($10,478.52) by the statutory deadline of June
30, 2016 (Count 1).
67. Respondent Akana was required to report
Ms. Kawananakoa's payment of legal fees on August 10,
2015 ($9,521.48) by the statutory deadline of June 30,
2016 (Count 2).

68. Respondent Akana was required to report
Ms. Kawananakoa's payment of legal fees on March 24,
2016 ($6,000) by the statutory deadline of June 30,
2016 (Count 3).

69. Respondent Akana was required to report
Ms. Kawananakoa's payment of legal fees on April 19,
2016 ($24,125.50) by the statutory deadline of
June 30, 2016 (Count 4).

70. Respondent Akana's contention that she did not need to
report these legal fees and that they were not "gifts"
because she received them in her "official capacity"
is wholly without merit: if she were correct, then
state employees could simply ignore HRS § 84-11.5
altogether by claiming that gifts — whether cash,
meals, tangible goods, or services — were being
provided to them in their official capacities. This
contradicts the plain language of HRS § 84-11.5.
71. Respondent Akana accepted Ms. Kawananakoa's offer to
pay for her legal fees. It was incumbent upon
Respondent to ascertain the value of these legal fees
for gift reporting purposes and to report these gifts
in a timely fashion as required by HRS § 84-11.5. Her
claim that she was not provided with copies of the
Bickerton Dang law firm's invoices and that, during
the course of the litigation, she did not know the
specific amounts of her legal fees does not absolve
Respondent of her responsibilities under the State
Ethics Code.
72. Respondent Akana violated HRS § 84-11.5 by failing to
report a gift (the payment of Respondent's legal fees)
from Ms. Kawananakoa received on July 1, 2015
($10,478.52) by the statutory deadline of June 30,
2016 (Count 1).

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73. Respondent Akana violated HRS § 84-11.5 by failing to
report a gift (the payment of Respondent's legal fees)
from Ms. Kawananakoa received on August 10, 2015
($9,521.48) by the statutory deadline of June 30, 2016
(Count 2).
74. Respondent Akana violated HRS § 84-11.5 by failing to
report a gift (the payment of Respondent's legal fees)
from Ms. Kawananakoa received on March 24, 2016
($6,000.00) by the statutory deadline of June 30, 2016
(Count 3).
75. Respondent Akana violated HRS § 84-11.5 by failing to
report a gift (the payment of Respondent's legal fees)
from Ms. Kawananakoa received on April 19, 2016
($24,125.50) by the statutory deadline of June 30,
2016 (Count 4).

. . . .
86. Respondent Akana's continued acceptance of gifts of
legal fees — on two occasions, totaling more than
$21,000 — after Ms. Kawananakoa filed a lawsuit
against OHA, creates a reasonable inference "that the
gift is intended to influence [Respondent Akana] in
the performance of [Respondent Akana's] official
duties or is intended as a reward for any official
action on [Respondent Akana's] part." HRS § 84-11.

87. A reasonable person clearly could — and, the
Commission believes, would — infer that a donor who
pays for more than $21,000 of services to an elected
official after suing that official's agency intends to
influence that official.

. . . .

97. Respondent Akana contends that she did not violate the
Gifts law because she was not asked to give anything
in return for Ms. Kawananakoa's payment of legal fees
and the payment of these fees did not result in any
official acts by Respondent benefitting
Ms. Kawananakoa. The Commission concludes that
Respondent's contention is without merit. A donor's
actual intent in giving a gift does not determine
whether a gift is prohibited by the Gifts law;
similarly, it does not matter whether the gift
actually influences the recipient's actions. If a
gift is given under circumstances where it can
reasonably be inferred that an intent to influence or
reward exists, the gift is prohibited. This
interpretation of the Gifts law fully comports with
the plain language of the law as well as the purpose
of the State Ethics Code to preserve public confidence
in public officials.
98. Respondent Akana violated HRS § 84-11 by accepting a
gift (the payment of Respondent's legal fees) from
Ms. Kawananakoa on or about April 28, 2017
($15,513.15) when the OHA BOT, including Respondent
Akana, was engaged in the Kawananakoa vs. OHA lawsuit
(Count 5).

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99. Respondent Akana violated HRS § 84-11 by accepting a
gift (the payment of Respondent's legal fees) from
Ms. Kawananakoa on or about June 17, 2017 ($6,000.00)
when the OHA BOT, including Respondent Akana, was
engaged in the Kawananakoa vs. OHA lawsuit (Count 6).

(Citation omitted.)
The Commission weighs three factors to determine
whether a gift is prohibited under the Code of Ethics: (1) the
value of the gift; (2) the relationship between the recipient and
the donor, including whether the recipient takes official action
regarding the donor; and (3) whether the gift benefits the
recipient personally or serves legitimate state interests. Haw.
State Ethics Comm'n Advisory Op. No. 2018-002, 2018 WL 4599569,
at *2 (June 21, 2018). Akana argues that she may accept
Kawananakoa paying her attorneys' fees because her lawsuit
against the other trustees was brought to further the interests
of OHA beneficiaries. She misses the point. Kawananakoa paying
Akana's attorneys' fees for her lawsuit against the other
trustees could reasonably be seen as possibly influencing Akana's
position on Kawananakoa's lawsuit against OHA. The value of the
gift — over $70,000 — satisfies the first factor.
Akana argues she had no significant relationship with
Kawananakoa before Kawananakoa began paying her attorneys' fees.
But this weighs against any inference that Kawananakoa paid
Akana's attorneys' fees out of friendship, and supports the
inference that Kawananakoa paid Akana's attorneys' fees to try to
influence the positions taken by Akana in the Kawananakoa v. OHA
lawsuit. Akana also argues "the unrebutted evidence [shows] that
no action had ever been taken on" Kawananakoa's lawsuit. She
again misses the point. Akana, as a trustee, could influence
OHA's decisions on Kawananakoa's lawsuit. No action — rather
than aggressive defensive action — being taken could have been
the result of Akana's influence. The second factor was
satisfied.
Akana notes that the Commission made no finding on the
third factor, because it felt the strength of the first two

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factors made the third factor inconsequential. Still, she argues
that she did not benefit from Kawananakoa's payment of her
attorneys' fees. The Commission found, and Akana doesn't
challenge, that the Bickerton Dang law firm provided legal
services to Akana for her lawsuit against the other trustees.
Akana offered no evidence to the Commission that she would not
have been personally liable for her attorneys' fees had
Kawananakoa not paid them. The record indicates that the third
factor was also satisfied.
The Commission's findings, conclusions, and mixed
findings and conclusions were supported by substantial evidence
and by the Commission's unchallenged findings, and reflected a
correct application of the law. They were neither clearly
erroneous nor wrong. The Commission did not abuse its discretion
by deciding that Akana violated the Gifts Reporting Law and the
Gifts Law.

H. Akana waived her appeal from the order
denying her motion for a stay.

Akana contends the circuit court abused its discretion
by denying her request for a stay pending appeal and concluding
the factors under HRS § 91-14(c) were not met. Akana's opening
brief makes no discernable argument on this point. The
Commission argues the point should be deemed waived. Akana's
reply brief argues the point should not be deemed waived because
it involved motions briefed and argued in the circuit court, her
argument on this point was referenced in her statement of the
points of error, and the argument was not made in her opening
brief for economy. Attempts to incorporate by reference in the
opening brief arguments made before the trial court violate the
35-page limitation in HRAP Rule 28(a). Kapiolani Com. Ctr. v.
A & S P'ship, 68 Haw. 580, 584-85, 723 P.2d 181, 184-85 (1986)
("Since this is in violation of our rules, we will disregard
those points.").

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I. The circuit court retained jurisdiction to
rule on the Commission's motion to amend the
judgment.

Akana contends that her notice of appeal immediately
divested the circuit court of jurisdiction to grant the
Commission's motion to amend the judgment. The Commission argues
this point too should be deemed waived because it was not argued
in Akana's opening brief. But "lack of subject matter
jurisdiction can never be waived by any party at any time."
Ditto v. McCurdy, 103 Hawai#i 153, 157, 80 P.3d 974, 978 (2003)
(citation omitted).
The Commission's motion to amend was filed within the
time required by Hawai#i Rules of Civil Procedure Rule 59(e).
The circuit court's jurisdiction was extended for up to 90 days
after the motion was filed. See HRAP Rule 4(a)(3) ("The
presiding court or agency in which the motion was filed shall
dispose of any such post-judgment motion by entering an order
upon the record within 90 days after the date the motion was
filed."). The circuit court retained jurisdiction to enter the
Amended Final Judgment.
The Amended Final Judgment substantially and materially
altered the Final Judgment by adding fines of $23,106.53 against
Akana. Ordinarily, if amendment of a final judgment materially
alters rights or obligations determined by the prior judgment, a
notice of appeal from the amended judgment must be filed. See
Korsak v. Haw. Permanente Med. Grp., 94 Hawai#i 297, 304, 12 P.3d
1238, 1245 (2000). But the Final Judgment affirmed the
Commission's imposition of the fines; it just didn't liquidate
the amount. Akana's notice of appeal was timely as to the
Amended Final Judgment under HRAP Rule 4(a)(2) ("If a notice of
appeal is filed after announcement of a decision but before entry
of the judgment or order, such notice shall be considered as
filed immediately after the time the judgment or order becomes
final for the purpose of appeal.").

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V. CONCLUSION

For all of these reasons, the circuit court's Amended
Final Judgment and the Commission's Findings of Fact, Conclusions
of Law, and Decision and Order are affirmed.
DATED: Honolulu, Hawai#i, January 22, 2024.
On the briefs:
/s/ Katherine G. Leonard
James J. Bickerton, Acting Chief Judge
Bridget G. Morgan-Bickerton,
Stephen M. Tannenbaum, /s/ Keith K. Hiraoka
Jeremy K. O'Steen, Associate Judge
for Respondent-Appellant-
Appellant. /s/ Karen T. Nakasone
Associate Judge
Kaliko#onalani D. Fernandes,
Solicitor General,
State of Hawai#i,
for Complainant-Appellee-
Appellee.

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