Monday, April 24, 2017

Gorak Nomination: The End Justify the Means?

On Friday, the Senate Committee on Commerce, Consumer Protection & Health heard Governor's Message No. 703, the nomination of Thomas Gorak for Hawaii Public Utilities Commissioner (PUC).  As I walked the hallways of the Capitol after testifying at the hearing against the Gorak nomination,  the underlying chatter amongst Gorak's supporters was that my lack of support and the Committee's denial was just sour grapes over the HECO-NextEra decision.

Really?  When does the end really justify the means?  I bet if the tables were turned and the merger had been supported by a Governor who wanted a favorable decision using the same tactics to remove and replace a sitting Commissioner two weeks before the biggest decision ever made at the PUC, these "supporters" would be filing the complaint along side me.    We all know the Governor could have sent a timely nomination, seeking the required advice and consent by the Senate prior to the Senate adjourning but he didn't.  Simply put, the timing of the Governor's actions and the optics look and smell like political meddling in a major decision while dissing the Senate's power and authority to advice and consent.

This legal controversy over how Governor Ige threw out Commission Michael Champley and replaced him with Gorak is now working its way through the Courts. To determine if the lower court ruling was wrong, there are three issues the Court will examine by interpreting the Constitution and state laws:  (1) what constitutes a vacancy and did a vacancy exist at the expiration of Commissioner Champley's term on June 30, 2016, (2)  does the Constitution override the state law on a holdover Commissioner and the Senate's duty to advise and consent to "qualify" a nominee, and (3) did I have standing to pursue the Quo Warranto Petition against Gorak.

Given Gorak's role as PUC Chief Counsel, I do not believe there is a way to extricate an evaluation of Gorak's character in the nomination process from this legal controversy until the legal issues are resolved by the courts. Here's what I said in my testimony:

. . . I believe Mr. Gorak shirked his duties as the PUC’s Chief Counsel by aiding the Governor’s agenda to improperly throw out Commissioner Michael Champley and subsequently allowing the Governor to name Mr. Gorak as Commissioner Champley’s replacement. I feel this was contrary to his duties and responsibility as the PUC Chief Counsel and not in accordance with the Hawaii Rules of Professional Conduct.  Rule 1.13(h) of the Hawaii Rules of Professional Conduct states:
 If a government lawyer knows that an officer, employee or other person associated with the government is engaged in action, intends to act or refuses to act in a matter related to the lawyer's representation that is a violation of a legal obligation to the government or the public, or a violation of law which reasonably might be imputed to the government, the lawyer shall proceed as is reasonably necessary in the best interest of the government or the public.
In his role as PUC Chief Counsel, Mr. Gorak should have been well aware of the laws specific to the PUC.  If he were to claim plausible deniability one would have to question either his ethics or competency in that role. I sincerely believe Mr. Gorak exhibited a huge character flaw when he allowed himself to become a political pawn, throwing the need to maintain the integrity and independence of the PUC to the wayside at a time when the credibility of the PUC was being severely tested.  The removal of Commission Michael Champley, the holdover Commissioner and the de jure officer, was contrary to State law and two previous Attorney General Opinions which have been in effect for almost 40 years.

Click here for my testimony before the Senate Committee.

Click here for the opening brief on my appeal before the Intermediate Court of Appeals.

In taking the action to deny Gorak's nomination, Chair Roslyn Baker said, "The truly important issues that are 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."

As I said in an earlier blog post, "We all should be concerned about this unchecked power which Judge Nacino's ruling gave to Governor Ige as it affects other boards and commissions too.

Gorak's nomination comes with a lot of baggage and there is no way to untangle and extricate possible complicity issues until this legal controversy is settled by the Courts.  Let process prevail!

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