Ka Wai Ola - Office of Hawaiian Affairs, Volume 16, Number 5, 1 May 1999 — Amended policy imprudently delegates authority [ARTICLE+ILLUSTRATION]

Amended policy imprudently delegates authority

ALOHA MAI e nā 'ōiwi Hawai'i. This is my 33rd arhcle in a series of 46. At the March 19 (Kaua'i) and March 23 (O'ahu) BOT meetings, six OHA trustees voted to add the foUowing to OHA's Pohcies and Procedures Manual: "The duties, responsibifiries and authority of the Administrator include the following: 1 ) The administrator is the principal execurive that has broad authority to manage the office. 2) The administrator has the authority to delineate the stracture, functions, duties and responsibifities performed by eaeh program area and define the lines of authority between program areas. 3) The administrator has the authority to define position titles and duties and responsibihties and lines of authorities. 4) The administrator has direct supervision over aU personnel staff at OHA, except the aides assigned to the Trastees." Items 2 and 3 raise fiduciary concerns. Trustees ApoUona, DeSoto and Machado

voted in opposition and dissented in writing in accord with Section 554A-6 of the Uniform Trastees Powers Act, now filed as part of the meeting minutes. Following are abridged excerpts from our dissent: £ £ 1 A I e do not i al concurwith yu this action II on the I I grounds that a fuU and open review of the merits is lacking, and consequently, any apphcation of funds and resources at this time

may be constraed by beneficiaries to be a breach of fiduciary duty. Chapter 10-16 (e) of the Hawai'i Revised Stamtes specificaUy states, 'In matters of misappUcation of funds and resources in breach of fiduciary duty, board members shall be subject to suit brought by any beneficiary of the pubUc trast entrasted upon the office, either through the office of the attorney general or through private counsel.' "This proposed action: • relinquishes the OLLA BOT's authority pursuant to the Hawai'i State Constimtion, Hawai'i Revised Statutes chapters 10 and 554 and the OHA administrator's contract adopted July 11, 1997; • contradicts HRS section 10-6 whieh

says that the BOT SHALL develop, implement, and continually update a comprehensive master plan for Hawaiians and native Hawaiians whieh shall include but not limited to: • EstabUshment of immediate and long range goals; • EstabUshment of priorities for program implementation and of alternarives for program implementation; and • Organization and administration and program stracture, including the use of facilities

ana personnei. "The OHA BOT: • has never developed a Native Hawaiian Comprehensive Master Plan as prescribed by HRS Sec. 10-6 (a) (1); • has not developed any OHA master plan since 1988, and should not delegate any of its powers to the administrator when no updated plan exists; and should never give up its authority to oversee and manage OHA's trast assets and programs. "This proposed action: • gives the administrator sole authority to delineate the stracture, functions, duties and responsibiUties performed by eaeh OHA program and extinguishes board oversight regarding parameters and piioii-

ties. It goes far beyond the Administrator's scope to hire and fire. Approval means OHA committee chairpersons are terminating their purviews and authority by delegation to the Administrator. They are eliminating beneficiary input currently required pursuant to Chapter 92 because now such items will not eome up for puhlie eommittee review and action. • gives the administrator the power to disregard or dismantle previously approved BOT actions and has the potential to result in the mismanagement or redirection of OHA BOT budget decisions, thereby putting the trustees at eonsiderable risk of breaching their fiduciary duty. • eliminates all checks and balances and removes trustees from the decisionmaking process, but leaves them with the responsibiUty. • transfers the authority from the elected BOT to the administrator while leaving the BOT responsible for the Adminisriator's acts or omissions; • delegates full authority to the Administrator to define position titles, duties, responsibihties and the lines of authority" Regardless of the grave concerns raised by Trastees Apoliona, Machado and DeSoto, administration is afready implementing reorganization. Ask the OHA staff how this new policy impacts personnel, operations, beneficiary programs and services. ■

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