Updated 6:45 p.m., 4/21/2017

Gov. David Ige’s nomination of Tom Gorak to the three-member Public Utilities Commission — an agency with broad responsibilities that range from shaping the state’s energy future to regulating transportation and telecommunications — is headed for a showdown in the Senate.

The Commerce, Consumer Protection and Health Committee, chaired by Sen. Roz Baker, voted 4-3 on Friday to advise the full Senate to reject the appointment when it takes it up sometime in the next two weeks.

Sens. Clarence Nishihara, Michelle Kidani and Will Espero voted in support of Baker’s motion against the appointment, with Espero noting his reservations. Sens. Russell Ruderman, Les Ihara and Stanley Chang voted in support of Gorak.

Chair Rosslyn Baker decision against confirming Gorak. 21 april 2017
The Commerce, Consumer Protection and Health Committee, chaired by Sen. Roz Baker, left, voted 4-3 on Friday against the governor’s nomination of Tom Gorak to serve on the Public Utilities Commission. Cory Lum/Civil Beat/2017

“It is the chair’s belief that Mr. Gorak’s qualifications are not the truly important issue before this committee,” Baker said, reading a prepared statement before the vote. She added:

The truly important issues at stake here are the legitimacy of how Mr. Gorak has come to hold the position of a commissioner, the constitutional authority of the Senate to advise and consent, and the effect that any action by this committee will have on ongoing consideration of the Senate’s constitutional authority by the Intermediate Court of Appeals.

It’s the first time since Ige’s 2015 appointment of Carleton Ching to head the Department of Land and Natural Resources that one of his picks for a major state agency has been in trouble. The governor ultimately withdrew Ching’s name just moments before the Senate was set to vote on the nomination after seeing the support was not there.

It’s unclear what the full 25-member Senate will do with the Gorak nomination, but the vote is expected to be close. Some senators said there are as many as 16 votes against it at this point, while others put that number at closer to 11, with a handful on the fence. Thirteen are needed for confirmation.

Unlike Ching, whose past work as a lobbyist for a major developer made him ill-suited in the minds of many to lead a department tasked with protecting the environment, Gorak is widely viewed as qualified to serve on the PUC.

He has devoted almost 40 years to public utility regulation at the state and federal levels, authored dozens of papers, spoken at national and international conferences and served as the PUC’s chief counsel from 2013 until Ige appointed him in June to replace outgoing Commissioner Mike Champley. (Here’s his resume.)

And yet Gorak has found himself in a battle for confirmation to serve a term that would end June 30, 2022. The Senate has until May 4, the end of the legislative session, to reject the nomination, which would leave Ige needing to find a replacement. 

Gorak went on the offensive earlier this month. He sent a letter April 3 to all senators, addressing eight specific allegations that have been lobbed publicly and privately against his “character and fitness.” (Read the full letter at the end of this story.)

He endeavored to dispel complaints alleging conflicts of interest and inappropriate travel, and that when he was chief counsel he allowed a staff member to violate another employee’s rights without doing anything about it.

During the committee hearing, Gorak underscored how he would balance state initiatives to achieve 100 percent electricity generation from renewable resources by 2045 with the effect those initiatives could have on utility bills.

The morning hearing went smoothly, save for a few snips from Baker. She interrupted Gorak a couple times, including once right in the beginning when he asked to make an “opening statement” to the committee. She told him this was not court, but that he could make a statement.

PUC Thomas Gorak waits for decision in conference committee before decision recommendation announced. Room 16 capitol. 21 april 2017
Tom Gorak awaits the committee’s confirmation vote Friday. It didn’t go his way, but the full Senate will have the final word. Cory Lum/Civil Beat

Some senators and political observers said the real opposition to Gorak has to do with the proposed $4.3 billion deal to sell Hawaiian Electric Industries to Florida-based NextEra Energy, though Baker interrupted Gorak’s testimony to say that is not what motivated her opposition. The PUC rejected the deal in July after 18 months of lobbying by both sides and a quasi-judicial hearing.

The PUC’s decision was pending when the Legislature adjourned its 2016 session in May. A month later, Ige decided he was not going to keep Champley, whose term expired June 30, and instead appointed Gorak on an interim basis, temporarily bypassing the Senate confirmation process.

Champley opposed Gorak’s appointment, saying in written testimony that Gorak had him “walled off” from key staff members he needed to do his job.

“In my view, Mr. Gorak discharged his duties as chief counsel in a manner that was improper and contrary to the established protocols,” Champley said.

Not pleased with the political maneuvering, Senate President Ron Kouchi went to court over it but a judge said the governor had the authority to make the interim appointment.

The case was brought by former PUC Chair Mina Morita, with the Senate joining through an amicus brief. Morita appealed the decision in February and it remains on appeal.

“I’m pleased by the committee’s decision and the chair’s recognition that this controversy must be settled by the courts, especially to preserve the balance of power and the Senate’s right to advise and consent,” Morita said after the committee’s vote. “It’s not an argument of his credentials but it is an argument about his role as chief counsel of the PUC and what appears to be complicity on his part in moving the governor’s agenda.”

Kouchi said he supports Baker’s decision and understands the concerns she expressed.

The Senate Commerce, Consumer Protection and Health Committee confers privately before voting 4-3 against Tom Gorak’s appointment to the PUC. Nathan Eagle/Civil Beat

There were also concerns that Ige, who opposed the merger, wanted Champley out because he was perceived to be in favor of the NextEra deal. But the commission ended up rejecting the merger 2-0, with Gorak abstaining.

PUC Chair Randy Iwase was walking the Senate hallways Wednesday ahead of Friday’s committee hearing. He said he wasn’t sure how the full Senate would vote, but stood behind Ige’s appointment.

Iwase testified Friday in support of Gorak, making a strong effort to highlight the strength of Gorak’s character.

After the hearing, Iwase said he found the rationale to oppose Gorak to be “quite confusing.”

Gorak declined to comment after the hearing, saying he still has a full Senate vote ahead of him. That vote could happen as early as next week but may wait until the final days of the session.

There was plenty of support for Gorak, with almost all the written testimony in favor, including from the Sierra Club; former Consumer Advocate Jeff Ono; the former head of the state energy office, Mark Glick; well-known Hawaii energy expert John Cole and others.

Ruderman, in voting in favor of Gorak, said he had to evaluate the nomination “based on what’s before us, not what’s whispered behind us.”

Ihara, who also supports Gorak, said he remains open to hearing any kind of arguments that could convince him to vote no on the floor. But for the time being, he said there seems to be a “dispute about realities” and it’s unclear which reality holds.

Espero had his doubts, telling his colleagues that he was reserving his right to change his vote on the Senate floor where the final decision is expected to be made. He said he has questions he needs to talk to “legal folks” about and a few conversations he wants to have with people were were not available prior to the hearing Friday, though he did not name names.

Read Gorak’s April 3 letter to all senators below:

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