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Law, not politics, guides
funding for legal aid

I write in response to Mahealani Kamauu's May 12 column, "Senators' political power play hurts Hawaiians," concerning state funding of the Native Hawaiian Legal Corporation. At the outset, let me make clear that I can only explain my concerns. I cannot comment on the allegations made about Sen. Clayton Hee or his private conversations with the NHLC's representatives. I must clarify that contrary to what was represented by Kamauu, the proposal to eliminate NHLC's second year of funding came from the House. The Senate's position did not affect the amount of funds sought; it merely made the funding comply with the procurement laws of the state.

Also as clarification, the Senate's position was agreed to by the Office of Hawaiian Affairs. It was NHLC that did not want to comply with the state's procurement code and attempted to use the House to undermine the agreement with OHA. To now seek public reprisal against the Senate is very unprofessional and unfortunate in that it calls for a public explanation and questions whether OHA attempted to circumvent state law. Let there be no question, Rice vs. Cayetano established that OHA is a state agency. OHA is not exempt from the state's procurement code. OHA knows and understands this.

The NHLC is a nonprofit corporation. It provides legal services to Hawaiians. NHLC is not part of OHA; and we were told that OHA has no control over which cases NHLC takes on or who NHLC represents. NHLC has stated that it provided legal services for 30 years. I do not dispute that nor that NHLC provides an important service for certain members of the Hawaiian community.

I do dispute the implication that NHLC has had its funding changed after it was in place for a very long time. NHLC has enjoyed its special status only since 2001.

This special status is to continue to be a proviso in the OHA budget, thereby not having to satisfy either the grant-in-aid or procurement requirements of the law. This means NHLC is specifically identified in the law as the recipient of the money. NHLC does not have to "stand in line" like others, bid for, or provide explanations to the Senate Ways and Means or House Finance committees as to how it will use these funds. Neither does it have to worry that other worthy nonprofits might cut into its funding.

This year OHA requested for NHLC $592,302 from the general fund (state money) and permission to match $592,302 from OHA's trust funds. This means NHLC receives a total of $1,184,604 each year from both sources. The state's general fund will pay almost $1.2 million to NHLC in the biennium.

The reason for the general fund match is that if NHLC were to receive only trust fund money from OHA, then NHLC could serve only those of 50 percent blood quantum or more. OHA has operated on the assumption that as long as some general fund money is "mixed in" with trust funds, all Hawaiians, not only the beneficiaries of the trust, can be served with the trust fund money. I personally disagree with this position.

In the past two biennium budgets, NHLC has received $333,512 per year (2002/2003 fiscal years) and $388,301 per year (2004/2005 fiscal years). The request for fiscal years 2006/2007 almost doubled what NHLC received during its first time as a proviso.

These past two provisos form the basis of NHLC's claim of entitlement to these funds. Scrutiny of the general fund and the state laws are every legislator's responsibility. No nonprofit is entitled to state funds.

I also must address the allegation the Attorney General's Office did not find liability exposure to the state for the funding of NHLC. It is my opinion that the attorney general did not directly answer the question. The analysis was that if the proviso is treated as a grant-in-aid, then there should not be liability. The attorney general did not answer the question, "If the proviso is not a grant-in-aid or procured under law, can NHLC be deemed an extension of OHA and thereby exposing the state of Hawaii to liability?" I perfectly understand the inability or hesitancy of the Attorney General's Office to answer the question as posed. The state does not need or want a published attorney general's opinion, which may concede liability.

By this letter, I trust I have clarified what NHLC is truly seeking from the taxpayers of this state and why the Senate took its position against a four-year practice. I believe the taxpayers, Hawaiians and non-Hawaiians, are owed this explanation. It is not our job to make funding entitlement for one nonprofit over others.

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