Ka Wai Ola - Office of Hawaiian Affairs, Volume 34, Number 2, 1 Pepeluali 2017 — Former Trustees Speak Out on Fiduciary Duty [ARTICLE+ILLUSTRATION]

Former Trustees Speak Out on Fiduciary Duty

This month I wanted to share with you testimony that was given at the December 15, 2016, BoardofTrusteesMeet-

I ing from both former OHA Trustee Haunani Apoliona and former OHA Trustee Oswald Stender. "Testimony of S. Haunani Apoliona for the OHA Board of Trustees Meeting Thursday, December 15, 2016, 10:00 am. Aloha Kākou, On Thursday December 8, 2016, I watched the OHA "live stream" of the OHA Board of Trustees organization meeting.

The action voted on by the Board of Trustees "majority" was troubling to witness. Conduct of fiduciaries is governed by eommon law as well as by specific federal and state laws. After eaeh eleehon, OHA Trustees swear an oath to "faithfully discharge" duties "as a member of the Board of Trustees of the Office of Hawaiian Affairs of the State of Hawai'i" to the best of their ability. "Trustees by definition are imbued with fiduciary duties," the duty of care, the duty of loyalty and the duty of obedience. As a matter of PUBLIC RECORD, the Court of the Honorable Judge Virginia Crandall, Civil No. 13-1-2485-09 VLC, issued the "Qrder Granting CounterclaimPlaintiffs' Motion For Summary Judgment Establishing Plaintiff's Breach of Fiduciary Duty, filed October 3 1, 20 14, Akana v. Machado, et al." The record further states, "Therefore, Counter Claim Plaintiffs are entitled to judgement as a matter of law on their Counterclaim as to Akana's liability for breach of fiduciary duty" (June 02, 2015). Also in the PUBLIC RECORD Civil No. 13-1-2485-09 VLC is "Order Denying Plaintiff's Mohon for Reconsideration of Minute Order Granting Counterclaim Plaintiffs' Motion For Summary Judgment Establishing Plaintiff 's Breach of Fiduciary Duty Filed on October 31, 2014 (Minute Order Entered on April 30, 2015), filed June 2, 2015.

Based on the Judgment of the Court, Rowena Akana has breached her "fiduciary duty." Surprisingly, this person iudaed to have breached

her fiduciary duties was elected by five trustees (including herselD to provide leadership of that breached Native Hawaiian puhlie trust. Auwe! Trustees Ahu-Isa, Akina, Lindsey and Waihee, you were derelict in your duty of care, loyalty and obedience by voting to elevate Akana to Chair of the OHA Board of Trustees. It is imperative that you now correct your action, "ho'opono the hewa." Also, all Trustees of OHA have yet to decide..."Akana's liability" {and

any future trustee who may be so judged} . . . "for breach of fiduciary duty". . ,do so. . . and do it on behalf of us Native Hawaiian beneficiaries." Below you will find Former OHA Trustee Stender's testimony. He was not able to attend the meeting, but his testimony was read by former OHA Trustee Apoliona. "Trustees, As a native Hawaiian and beneficiary of the Office of Hawaiian Affairs, I submit this letter to express my concerns with regard to the sitting majority trustees' selection of Trustee Rowena Akana as Chair of the Board of Trustees on December 8, 2016. Based on the court's decision in Trustee Akana's lawsuit (Akana vs. Machado et. al), it is very clear that Trustee Akana breached her fiduciary duty as trustee. It is now the duty of all the remaining trustees to sanction Trustee Akana by first removing her as chair of the board and to devise other penalties to recover all costs and assets of the trust whieh has been wasted by Trustee Akana's frivolous lawsuit. It is the fiduciary duty and responsibility of eaeh of the remaining trustees to act on this matter without delay and remove Trustee Akana as chair of the board in order to protect and uphold the integrity of the Office of Hawaiian Affairs. Mahalo. Oswald K. Stender" ■

Cūlette Y. Machadū Trustee, Muluka'i and Lāna'i