Office of Hawaiian Affairs Trustee Keli‘i Akina has identified himself as the trustee who is being targeted for speaking out in violation of the board’s code of conduct policy.

But Akina is fighting back, saying the board’s interpretation of the code’s prohibition against disloyal statements is a violation of his freedom of speech as an elected official and prevents him from serving constituents effectively.

“Elected officials and representatives have a duty and a right to express themselves freely. Not to do so would be a violation to their duties to their constituents,” Akina said Friday.

On Thursday the board appointed four of its members to serve on a committee to investigate Akina’s statements.

The code of conduct outlines standards of behavior for trustees to help them function like a “collegial unit” and to “speak with one voice.”

Fiduciary duties include duties of care, loyalty, obedience and impartiality, according to the code.The duties of loyalty and obedience say that once a board decision has been reached, it is each member’s responsibility to support the decision.

Akina said he’s being accused of publicly criticizing the board for delaying an independent forensic audit of OHA and its subsidiary limited liability companies, or LLCs.

In an April 10 press release issued by Akina, he lashed out at his colleagues after he was the lone dissenter in a vote to extend the audit contract deadline to December 2019 — seven months after the original deadline for completion of the contract.

“It is very troubling that the OHA Board of Trustees has taken a step backward for transparency and accountability,” Akina wrote in the release.

OHA Chairperson Colette Machado said the agency received two internal complaints alleging trustee code of conduct violations.

“As trustees with solemn fiduciary responsibilities, the OHA Board takes any alleged violation of the Trustee Code of Conduct seriously,” Machado said in a statement Friday. “Trustees are expected to hold each other accountable for their conduct as befits elected officials, and to ensure that there is a fair process in place to investigate complaints after informal resolution is unsuccessful.”

Machado said the complaints would be “fully and fairly” investigated by the panel created Thursday in consultation with OHA Board counsel and the state Office of Information Practices. Members of the Permitted Interaction Group are trustees Brendon Kalei‘aina Lee, Carmen Hulu Lindsey and John Waihee IV and Kalei Akaka.

She said the panel would serve as a forum for all parties involved to speak freely.

Machado added that, “Any allegation that the respondent-trustee’s First Amendment rights have been violated is without merit as no adverse action has been taken.”

But University of Hawaii law professor Randall Roth said he believes the policy does violate Akina’s free speech rights.

“It’s a terrible policy,” Roth said. “It does damage to an organization because you lose the benefit of lively and informed disagreement that can help people better think through their positions. It’s another way OHA tries to avoid the level of transparency and accountability that would normally be required at a state agency.”

Akina has twice objected to the trustees discussing the code of conduct violations in closed-door executive sessions, saying he would rather have the issues discussed in full view of the public.

He said he believes the private discussions violate Hawaii’s Sunshine Law.

“I welcome the opportunity to defend my actions on behalf of OHA beneficiaries and state taxpayers,” Akina said.

In her statement, Machado said: “This process will remain confidential to the extent permitted by law to protect the privacy of those individuals who have submitted the complaints as well as the trustee who is the subject of the complaints.”

Akina is also objecting to the appointment of an investigating committee. The code contains no provision for such a committee, he said.

Akina, who leads the nonprofit public policy think tank known as Grassroot Institute of Hawaii, often has been a thorn in the side for the agency since he was elected in 2016. In addition to pushing for the forensic audit, Akina has accused OHA of using “trustee slush funds” and wholly owned LLCs to circumvent the state Sunshine Law and procurement code.

“OHA is a state agency rather than a sovereign body that can make its own rules, such as imposing a duty on dissenters to stay quiet,” he said in a news release.

“I hope that my colleagues on the Board see this as an opportunity to champion the importance of freedom of speech to the democratic process,” Akina said.

Punishment for violating the code might include a formal censure, removal from one or all board committees, suspending travel privileges, denying a column in OHA’s Ka Wai Ola newspaper and cutting off the trustee’s allowance or requiring third-party administration of the allowance, the code says.