There’s quite an interesting clash over Governor Ige’s latest appointment to the Public Utilities Commission just prior to the commission’s rejection of the NextEra takeover of Hawaiian Electric.
Former PUC chair and longtime legislator, Mina Morita, filed suit last week challenging Governor Ige’s appointment of Thomas Gorak to the commission.
The Attorney General defended the appointment in a letter to Senate President Ron Kouchi, which has now been issued as an AG Opinion. The defense revolves around the State Constitution’s provision regarding power to fill a “vacancy” in an office requiring Senate confirmation.
A copy of the opinion, now number at Op. No. 16-3, is publicly posted on the governor’s website.
Early this month, former PUC chair and longtime legislator, Mina Morita, presented an opposing viewpoint in several posts at her Energy Dynamics blog.
She points to the specific section of law that provides for the appointment of commissioners to the PUC.
Section 269-2 HRS provides, in part: “Each member shall hold office until the member’s successor is appointed and qualified.”
In Morita’s view, the AG opinion is wrong because it deals with filling a vacancy. However, she believes that there was no vacancy at the expiration of Commissioner Mike Champley’s term because this section of the law provides that Champley would “hold office” until a successor “is appointed and qualified.” In other words, until confirmed by the Senate.
As I understand her position, there was no “vacancy” because Champley did not resign, and the law provides that he would then remain “in office” until a successor is approved by the Senate.
Morita points to two other so-called “interim appointments,” both of which were different because the incumbent did resign prior to the governor’s interim appointment.
In a June 30 post, Morita wrote:
Some have commented on the fact that Commissioner Champley himself was an interim appointment and so was current PUC Chair, Randy Iwase. With regard to Commissioner Champley, in accordance with the constitution, Governor Abercrombie made the interim appointment because a vacancy existed to fill an uncompleted term. The vacancy was due to the resignation and departure of Commissioner Carlito Caliboso. Subsequently, in the next legislative session Commissioner Champley was nominated, and by the advice and consent of the Senate, was appointed.
In the case of Chair Iwase, I submitted a letter of my intent not to seek reappointment in December 2014 and left the date of my resignation open to allow for a smooth transition of the chairmanship when a candidate was selected. The announcement of Randy Iwase was made on Friday, January 16 (the day before a long weekend and before I could start the process of my own termination) and he was placed in position just before the opening of 2015 Legislature on January 21 to be considered an interim appointment. In both cases vacancies were created through the resignations of a Commissioner who did not complete his term and a Chair who was in a hold-over position.
Here, Governor Ige is trying to force a vacancy pushing Commissioner Champley out prematurely and subverting the law and the right of the Senate to advice and consent in the process.
“Hawaii PUC Fiasco: An Unfortunate But Great Opportunity For A Civics Lesson“, July 2.
“Fallout from Ige’s PUC “Appointment” – An Overview of Day 2″, July 1.
“PUC ‘Appointment’ Subverts the Law“, June 30.
Attorney General Opinion 16-3