The Office of Hawaiian Affairs is fighting back in court against a ruling that found the Board of Trustees in violation of the state’s open-meeting law in two instances involving a dispute over the conduct of CEO Kamana‘opono Crabbe.

Declaring the opinion of the state Office of Information Practices "palpably erroneous," OHA filed an appeal in Circuit Court in the first legal challenge of its kind under a new law that permits such appeals.

The alleged state Sunshine Law violations stem from the May 5 letter to Secretary of State John Kerry in which Crabbe asked whether the Hawaiian kingdom exists as an independent sovereign nation under international law.

The trustees, fearing that OHA’s nation-building efforts would be undermined, quickly wrote a follow-up letter to Kerry rescinding Crabbe’s note. It happened at a time when several members of the board were in Washington, D.C., including then-Chairwoman Colette Machado.

Responding to complaints by six Hawaii residents, the Office of Information Practices ruled Nov. 7 that the Sunshine Law was violated when the OHA board made phone calls and sent emails to each other about the letter without holding a public meeting.

A second violation occurred, the office said, when the board failed to allow public testimony before meeting privately on May 19 to discuss Crabbe’s conduct. About 100 people, including numerous would-be testifiers, were asked to leave the room before a closed-door executive session was held.

In its Dec. 5 filing in Circuit Court, the OHA board asks for the opinion to be reversed in a "special session" as spelled out by a state law that took effect at the beginning of 2013. OHA also asks for its attorney’s fees to be paid for.

The specific reasons for why the Office of Information Practices was "palpably erroneous" are not spelled out in the complaint. Instead, it said the reasons are found in responses sent to the OIP.

In those responses prepared by OHA attorney Robert Klein for Machado, the board argued that its actions leading to creating "the Rescission Letter" did not constitute a "meeting" as defined in the Sunshine Law. Under the law, a "meeting" is defined as the convening of a board for which a quorum is required to deliberate on a matter.

The rescission letter, the response said, "was simply a restatement of OHA’s officially adopted policy on nation-building," adding, "There is simply no authority, nor is there any rational reason, why a quorum is necessary to identify that a given employee acted without authority where he so clearly did or to restate a position previously adopted by the Board."

In any case, Machado could have unilaterally communicated the substance of the rescission letter to Kerry without any board action on the issue, the document said.

The OIP had ruled that "the serial discussions" among the trustees were not permitted under any part of the law and should have taken place only in a properly announced meeting. It also said the board could have easily invoked emergency provisions of the law — including obtaining authorization from the state attorney general — to have quickly arranged a meeting among trustees in different locations.

As for the May 19 violation, nothing in the Sunshine Law prohibits OHA from holding an executive meeting closed to the public regarding personnel, according to the OHA response.

In a precedent-setting opinion, the OIP ruled that because the law requires boards to "afford all interested persons an opportunity to present oral testimony on any agenda item," and does not make an exception for items to be heard in executive session, the public should be given the right to present oral testimony on items to be heard in executive session.

Jennifer Brooks, OIP staff attorney, said that because this is the first time one of the agency’s opinions has been appealed under the new law, the court will have to determine what kind of special session will be held. The law, she said, specifically requires proving an opinion "palpably wrong."

No hearing has yet been scheduled, and the Office of Information Practices has until Jan. 9 to hand over the case’s record to the court, she said.

In Crabbe’s letter, he noted the illegal overthrow of the kingdom in 1893 and questioned whether OHA might be violating international law if it continues to pursue a Native Hawaiian governing entity. He wrote that he would recommend backing off on nation-building until he gets an answer.

The trustees promptly rescinded the letter, saying it did not reflect board policy. According to OHA’s response document: "The highly provocative language contained in the Crabbe Letter had the serious potential to cause grave and irreparable damage to OHA, its mission, and its beneficiaries."

Crabbe’s position as CEO appeared to be in jeopardy in the immediate aftermath of the controversy, but then trustees offered to discuss the dispute during a closed-door session that also included hooponopono, the Hawaiian practice of reconciliation and forgiveness.

Crabbe and the trustees emerged from that May 19 gathering arm-in-arm, vowing to proceed with "one voice" and on "one path."

On Tuesday Robert K. Lindsey Jr. of Hawaii island was elected OHA board chairman after Machado stepped down.