Senators challenge attorney general on grounds for governor’s utility appointment

Thomas Gorak and Gov. David Ige

State senators are taking their first legal steps in a fight with the governor over a Public Utilities Commission appointment.

They’re pointing out to the attorney general where he could be wrong about advice he gave the governor.

Always Investigating has been tracking this story and first reported last week that senators were weighing legal recourse as soon as the governor appointed a PUC staffer to take the place of an expiring — but non-resigned — commissioner.

But before taking the matter to court, senators are leveling a challenge in writing to the attorney general, saying essentially if he okays the governor’s move, he should spell out exactly how, and be ready for a possible fight.

Always Investigating obtained a draft of the letter the Senate sent to Attorney General Douglas Chin late Wednesday. Senate president Ron Kouchi told Always Investigating he was meeting up until late Wednesday afternoon to put the finishing touches on it.

Read the final letter in its entirety here.

These first steps in a legal rebuttal have been a work in progress since last week, when the AG told the governor the constitution lets him override state statutes and appoint staff counsel Tom Gorak to be a commissioner.

Those statutes say any expiring commissioner gets to keep the seat until the appointee can be “qualified.”

Senators say that qualification can only be done by them, in session, through their advise and consent procedures. Several senators think Michael Champley – not Gorak –should still be on the commission until they confirm a replacement.

The senators’ draft letter references a specific constitutional section about terms of office (Article V, Section 6) which states in part, “The term of office and removal of such members shall be as provided by law.”

The letter asks the AG why he thinks that section should not apply, and why he did not constrain the governor from making an interim utility appointment.

Champley didn’t voluntarily leave a vacancy. He confirmed to Always Investigating on the day of Gorak’s appointment that he did not resign, and added that he interprets the law the same way as the senators.

The senators’ letter further states the AG’s advice to Ige goes against several past attorney general opinions, asking the AG if he is intending to make Attorney General Opinions 73-7 and 804 null, void and overturned. And, the letter questions if at least 15 other holdover statutes are “likewise unconstitutional” in the AG’s eyes, based on his advice to Ige.

The attorney general’s advice to the governor, to which they refer, came in a written, informal opinion a few days prior to Gorak’s appointment. In that internal guidance, Chin pointed out to Ige that a legal challenge was likely.

The senators’ letter asks the AG to issue a formal opinion, after which the Senate will review and discuss “all of its rights and responsibilities as provided by law.”

The AG got the final letter from the Senate late Wednesday afternoon.

The attorney general’s spokesperson told Always Investigating the office will respond to the lawmakers shortly, adding “We know questions have been raised regarding previous Attorney General opinions and whether those are consistent with our recent advice regarding interim appointments. We will thoroughly consider that issue but note that previous legal opinions may have dealt with different legal and factual situations.”

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