The Office of Hawaiian Affairs Board of Trustees has decided to settle a long-running legal challenge from a fellow trustee.

Rowena Akana, a former board chair, sued her eight colleagues in September 2013 regarding closed-door minutes of board meetings related to a real estate purchase.

The civil lawsuit, Akana vs. Machado, et al., named then-board Chair Colette Machado, the seven other trustees and 10 unnamed persons. The trustees later countersued, accusing Akana of breach of fiduciary responsibilities.

Chair Rowena Akana gavels out after losing quorum after a handful of trustees walked out of meeting after disagreeing about public testimony/written testimony agenda item. 12 jan 2017

Then-Office of Hawaiian Affairs Board Chair Rowena Akana at a January meeting at OHA headquarters.

Cory Lum/Civil Beat

Akana had complained about OHA’s $21 million purchase of the Gentry Pacific Design Center, which today is called Na Lama Kukui and is the location of OHA’s Honolulu headquarters.

The countersuit from Machado, who is back as OHA board chair, alleged that Akana had released confidential information to the public.

As part of the settlement reached last month, Akana was required to write an apology to her colleagues.

“I have great respect for the attorney-client privilege and understand its importance,” she wrote in a letter dated Nov. 14. “My release of two letters from our attorneys, should never have occurred. As a Trustee of the Office of Hawaiian Affairs, I accept full responsibility for their release and do apologize to the Board of Trustees for the release of these letters. Since that time and in the future, I will continue to be mindful of maintaining the confidentiality of such privileged materials.”

The parties in Akana vs. Machado released the following media statement:

The Trustees and Trustee Akana have attempted to resolve their respective disputes in this matter for many months now. As important as the issues are to the parties, the respect and well-being of the Office of Hawaiian Affairs is of significantly greater importance. Therefore, all parties are of the view that the forthcoming trial would not have advanced the interests of OHA and its beneficiaries and thus the parties have agreed to resolve this case and focus on the future of the Office of Hawaiian Affairs and its beneficiaries.

OHA is a quasi-independent state agency charged with improving the lives of Native Hawaiians.

‘Astronomical Sums’

Updated: Two sources were granted anonymity so they would disclose information essential to the story. One of those sources said the total cost in legal fees to OHA exceeded $750,000. The other source said much of the expense would be covered by an insurer.

Asked about the financial information provided Civil Beat, OHA Public Relations Officer Sterling Wong replied that the agency will treat the inquiry as a public records request and provide a response “consistent with OIP laws.”

The Office of Information Practices is the state agency that administers two state laws intended to promote open and transparent government. OHA has 10 business days to respond to a public information request.

A page from the lawsuit, which is contained in six bound court volumes.

Chad Blair/Civil Beat

OHA Attorney Paul Alston said  OHA is not paying for the agreement, which requires each party to bear its own fees and costs. (In earlier version of this story incorrectly stated that OHA would cover Akana’s fees.)

The lawsuits have produced six volumes of records on file at 1st Circuit Court.

The most recent filings show the attorneys for both sides continuing to argue their respective client’s case right up until a settlement was struck Nov. 14.

Akana’s attorneys, Jim Bickerton, Stephen Tannenbaum and Bridget Morgan, wrote in early November:

“One of the clearest signs of the malice and or bias of Defendants is the astronomical sums they authorized OHA to spend to pursue Ms. Akana and this case where there has been no measurable harm to OHA from her claimed breach of fiduciary duty.

“If a party is aware that something caused no more than $1,000 in expenses and spends $800,000 to prove that fact, or can show no likelihood of future misconduct but spend $800,000 prosecuting a claim for injunctive relief to enjoin such conduct, there can be no doubt that the party is motivated by some bias or malice toward the party who is the object of such intense expenditures.

“Where that party takes the stand or sends an agent to do so, this enormous disparity between cost and benefit is something that should be open to cross-examination.”

But OHA attorneys Paul Alston and Claire Wong Black contended that Akana “repeatedly disclosed privileged information protected by the attorney client privilege.”

They cited an article by Akana published in the August 2012 issue of Ka Wai Ola, OHA’s monthly newsletter, and a letter to the representative of the seller in the Gentry purchase that Alston and Black say “disclosed advice provided by board counsel in executive session … The very information Plaintiff had been warned against disclosing one month prior.”

Akana made similar disclosures in the September 2012 newsletter on her personal website, roweanrakaka.org, and in the Oct. 15, 2012 issue of Hawaii Free Press.

Bickerton did not return a call from Civil Beat.

A gifts disclosure statement from Akana filed Sept. 26 with the Hawaii State Ethics Commission, shows that the trustee accepted $21,960 from Hawaiian heiress Abigail Kawananakoa for legal fees.

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