". . . the appointment could face legal challenge because there is no definitive Hawaii case confirming that where there is a de jure holdover statute, a vacancy exists at the expiration of a term of office to allow an interim appointment."Contradicting the June 27 letter, while there may not be Hawaii specific cases there is settled law cited in a March 27, 1980 Attorney General Opinion No. 80-4 which states:
Where a statute specifies that the incumbent shall continue to hold office until his successor is appointed and qualified, it is well settled that the incumbent retainsHow clearer can you get that this is an unlawful action by the Governor?
his office as a de jure officer and no vacancy exists at expiration of the incumbent's term. Therefore, the interim appointment power of the governor is not activated.
There have been several press comments about Senate challenging the Administration and asking the courts for some kind of ruling to preserve its powers to advise and consent on a nominee. Civil Beat reporter, Nathan Eagle reports that yesterday Commissioner Michael Champley was told to turn in his keys although Champley communicated to officials that this should not be construed as him giving up his position. Tom Gorack was sworn in at 8:00 a.m. in the Governor's office.
Now, who will or can challenge the legality of Tom Gorack taking office? Who will remains an unknown but anyone can file a petition in a challenge called quo warranto where the petition (Hawaii Revised Statutes 659-4) is filed in circuit court stating the facts. Then burden is on the respondent (Gorack) to answer why he thinks the law does not apply to him and he is legally entitled to hold the office. It would appear, with the language "until his successor is appointed and qualified" and with AG Opinion 80-4 citing the well established principles, it would be difficult to argue against Commission Champley as a de jure officer, that is someone who is legally entitled to hold the office.
The Fallout - Political Interference On The Backs of Hawaii's Residents & Businesses
Utility stocks are also favored by many institutional investors. So what may not be as transparent as the above are the affected Hawaii residents with pension benefits or have mutual funds whose investment portfolios include HEI shares.
But more importantly, given HECO's weakening financial position and lacking a stabilizing factor like NextEra's financial strength, the future outlook does not bode well given all this uncertainty. Prior to the merger application, HECO's credit rating by Standards and Poor was BBB-, one notch above non-investment grade. The merger application stabilized HECO's credit worthiness with a neutral outlook given NextEra's strong financial position. With Hawaii's unstable regulatory and unfriendly business climate, and without a strong financial partner, there could be a propensity to affect HECO's credit rating downward, without any cushion or safety net, it would be to non-investment grade level.
Who pays for the additional cost for these added risks of regulatory uncertainty and financial instability - the HECO customer - in HECO having to pay higher interest rates for access to capital thereby resulting in higher electricity costs.
In the Power Systems Improvement Plan, when discussing investments required for Hawaii's renewable future it said:
Achieving 100 percent renewable energy takes substantial capital investments. All options, whether the Preferred Plans or other candidate plans, require substantial amounts of capital, compensated for by customer savings over time. The total capital investments over the next 30 years for Hawaii is estimated to be $25.8 billion (in nominal dollars), of which the utility may invest 53%, or $13.6 billion. The balance may be made by project developers, customers, and the State (via tax incentives).With the kinds of antics happening under the Ige Administration, it looks like the anticipated savings will be wiped out and the cost of HECO borrowing money to make the necessary investments for a modern electrical system will be going up. Hawaii's 100% renewable future is getting pretty expensive . . . mainly by self inflicted stupidity.