The University of Hawaii retained the law firm of Torkildson Katz Moore Hetherington & Harris to represent the university in matters related to the failed Stevie Wonder concert. I’m sure the university thought it was in good hands.
But what the firm actually delivered at the State Capitol yesterday, in addition to another batch of redacted documents, was a stunning display of the arrogance of power, and another black eye for the administration of UH President M.R.C. Greenwood.
Jeffrey Harris, a named partner in the Torkildson firm, was the first person called as the Senate’s Special Committee on Accountability began its second informational briefing on the concert fiasco.
Things immediately took a bad turn for Harris and the university as Senators Ron Kouchi and Donna Kim asked about the first of 18 items in a follow-up request for information and documents submitted to UH after last week’s initial briefing.
Kim read the first item.
A complete breakdown of the running total of costs incurred by the University of Hawaii relating to the failed Stevie Wonder Benefit Concert and other relevant costs. Other relevant costs shall include but not be limited to all costs associated with legal services provided, public relations services, and any other services rendered to assist in the preparation and participation in the September 24th and October 2nd informational briefings of this Committee; provided that cost estimates shall be included where actual billings or detailed expenses are not yet available.
The response submitted as part of a 110-page response was short and sweet.
The Agreement for Services produced on Sept. 20, 2012 gave an estimate of ‘not to exceed $25,000′ for services and provided a procedure for change orders and price adjustments, if and when circumstances justify them.
Senators pounced on the answer as obviously non-responsive to the question.
Kim quickly ticked off the most obvious omissions, including the $200,000 payment that has disappeared, the cost of the factfinders report, and several public relations contracts. She then pointed to a running tally of concert-related costs compiled by the committee, which had already reached $1,135,200.
“I’m sorry if the question was misunderstood,” Harris responded.
Unsurprisingly, that simply drew bipartisan scorn from the senators present.
Sam Slom, the Senate’s minority leader and its only Republican, drew a laugh by paraphrasing Shakespeare’s line in Henry the Sixth: “First we kill all the lawyers.”
“Can you explain how we could be more clear?” Kim pressed. “We wanted a complete breakdown of the costs.”
Kim said the committee had expected the law firm “would be wordsmithing us,” and were assisted by Senate attorneys in drafting the questions in an attempt to avoid ambiguity.
Kim then tried to find the source of the stonewalling.
“Is this the university’s answer, or is this based on your advice?” she asked.
Harris responded: “It’s my answer to the current question.”
The questions then turned to the redactions made in documents released to the public.
Senator Kim directed attention to one of several documents produced in response to the committees request for “employee contract/agreement buyouts, including the cost of the buyouts, the Board of Regents has approved over the last twelve years.”
She cited the second document in that set, noting the name of the person was blanked out, although it could easily be identified as the buyout agreement with former UH President Evan Dobelle.
Harris responded with what soon became a steady mantra: “Individual names were redacted out of respect for the personal privacy of the individuals involved.”
“But these are public documents,” Kim said.
Harris: “Names were redacted out of respect for the personal privacy of the individuals involved.”
Sen. Les Ihara, an advocate of government openness and accountability, took the questions further, pointing to part of the Dobelle agreement in which the former president specifically acknowledged that it was a public document that would be disclosed on request, and signed off to certify his understanding.
This provision reads:
8. PUBLIC DOCUMENT
It is acknowledged by the University of Hawaii and Dr. (Dobelle) that this AGREEMENT would be and is considered a public document, and it is the expectation of both the UNIVERSITY OF HAWAII and DR. (Dobelle) that it will be made public upon its approval. Both parties hereby waive any objection to the privacy under Chapters 92 or 92F of the Hawaii Revised Statutes or otherwise to the public disclosure of this agreement.
Ihara was somewhat incredulous that Dobelle’s name had been redacted even from this section in direct contradiction to its specific terms.
“The names were redacted out of respect for the personal privacy of the individuals involved,” Harris again intoned.
Ihara took another stab, pointing to the state law which provides that information may be withheld on the basis of privacy only if its disclosure would be “a clearly unwarranted invasion of personal privacy.”
Ihara asked Harris to identify any specific information he thought would constitute a clearly unwarranted invasion of privacy.
“I’m asking you about the law,” Ihara said. “I’m asking about the university’s interpretation in light of the provision I just read to you.”
“I’m just trying to understand this,” Ihara said.
“And I’m explaining it again,” Harris responded. “The names were redacted out of respect for the personal privacy of the individuals involved.”
“Even with these provisions of the law?” Ihara asked.
Harris: “Yes.”
Ihara: “Just to be clear, you’re saying it meets the test of this statutory exemption? That’s what you’re saying?”
Harris: “I respectfully suggest…we shouldn’t waste any more time on it.
Eventually the committee moved on, but the damage was done.
Perhaps there’s a place in bare-knuckle lawyering where this kind of approach is valuable, but in this kind of public forum it was a disservice to the firm’s client, the University of Hawaii system.
Harris, who according to the contract is billing the university at the rate of $300 per hour, had just reinforced the image of the UH administration as a secretive group bent on blocking routine public access to information, and had clearly contributed to the rising reservoir of mistrust and suspicion among the legislators present. In just an hour of stonewalling, the attorney virtually guaranteed a new level of scrutiny of the university’s budget and policies during the next legislative session. And, in financial terms, he undermined the hundreds of thousands of dollars UH is spending on public relations consultants to shore up the public image of its “brand.”
It was another unfortunate and costly episode in this ongoing fiasco of the failed Stevie Wonder concert.
It’s like the clown-car at the circus. How many clowns climb out of that tiny car? It appears a lot.
Whatever thought I ever had of leaving money to the University in my will has been utterly extinguished. The administrative housecleaning that is required is beyond the capabilities of sclerotic State of Hawaii government as it exists in 2012. Just when you think that they can’t possibly be more clueless, more inept, and more arrogant, they surpass themselves. Is there anyone with courage, intelligence, and spirit on the Board of Regents? And what’s with Donna Kim and Sam Slom? What happened to their evisceration skills? I have never been this depressed about state government before and would consider Republican alternatives if there were any beyond waiting for the Rapture.
You could leave the money to individual departments or programs. Why punish faculty and students further for the fiscal irresponsibility of their administrators?
With apologies to Mr. Slom, a view from a living, breathing, private practice lawyer…
A lawyer is ethically obligated to protect his client from liability, and that is seemingly what happened here with any over-redactions.
Nobody wants to produce something that should have been kept confidential, for the fear of the liability that comes with an unlawful disclosure. If the lawyer produces anything that should have been redacted, the client and the lawyer might get sued. If, conversely, the lawyer produces less than he should have in a highly publicized matter like this one, the client and lawyer get some bad PR and time to re-assess the redactions (what has happened here).
For what it’s worth, I think most lawyers would have taken the approach that was taken here, i.e., over-redact rather than under-redact. You can always produce more; but you cannot unring the bell when you produce too much. Ian, you are correct that in the typical litigation case, this would be the standard approach. I also agree that the approach brings unique problems in this setting.
Please keep in mind that Donna Kim, for all of her badgering of Mr. Harris and his firm’s redactions, is equally unwilling to produce unredacted documents (which she has in her possession). If UH and its lawyers are to blame for withholding information, this Senate Committee is also to blame until and unless it changes its position and produces the unredacted documents.
Kim has the same fear UH and its lawyers share – producing something they shouldn’t. She’s waiting for another lawyer (Senate or OIP) to give her an opinion she can rely upon before producing the unredacted documents (and then blame that person if one of the “outed” individuals sues). By waiting until she gets that safety net to produce the documents, Kim is doing exactly what UH did. She’s playing it safe by withholding the unredacted documents from the public.
The problem with this explanation is that the university has been far more secretive than other agencies in recent years.
So the committee isn’t simply dealing with the desire to make these particular documents public. I think they are trying to use this case to push the university to reexamine that underlying tilt towards secrecy, and to chip away at the various justifications being offered.
The university could make use of OIP and seek the agency’s advice on disclosure matters. That’s what the Senate committee did.
And, on the matter of potential liability, consider Chapter 92F-16:
And in yesterday’s briefing, the committee was asking about specific redactions.
Isn’t a living, breathing, private practice attorney also ethically required to acknowledge a problem when the specific legal terms in a document contradict the redaction that was done?
President Dobelle’s exit agreement explicitly acknowledged it was a public document. When asked about this, though, Mr. Harris simply reiterated his general redaction rationale.
He was no longer protecting his client, in my view. It seemed to me that he was primarily trying not to acknowledge that many of the redactions were unnecessary or, as in this case, contrary to statute.
You are spot on, Ian. The exchange you covered in this story speaks volumes. Thank you for highlighting it.
Ian, your impulsive self-righteous indignation gets you lost in the weeds again, as is so often the case.
I frankly find it commendable that UH released the documents promptly, albeit with redactions, and didn’t attempt to hide behind the infamous “avoid the frustration of a legitimate government function” exception that has so often been abused.
Harris made a solid point when he challenged the good senators to release the unredacted version they possess, if they are so utterly convinced that redactions were unwarranted. They declined and quickly moved on. And you omitted mention of that exchange entirely.
Your suggestion that the university could have made use of OIP for this situation is preposterous.
For one thing, they would still be waiting for the OIP opinion (like the Senate committee), and excitable types like you would be howling about secrecy. For another, this is a complex situation that involves an ongoing federal criminal investigation in more than one state, personnel matters, multiple parties and a high potential for litigation. UH was right to rely on counsel, rather than OIP.
While I don’t necessarily agree with all the redactions or defend the UH record on secrecy, I think the university’s actions regarding disclosure were overall pretty reasonable, although certainly subject to scrutiny, well-reasoned criticism, and reversal.
The Senate committee may indeed provide a legitimate public service with all this, rather than become an abusive kangaroo court. But my fear is that it and the resulting media sensationalism-as-usual will do far more harm to UH than the concert blunder.
Say what you will about those who’ve been grilled so far, but the conduct and tenor of some of the grilling has been pretty reprehensible. It’s too bad that some seem so eager to lap up the spectacle of public pillory without question.
Now that we’re all distracted, I guess we can all forget about asking what, specifically, was said during that meeting in the governor’s office, how was it interpreted, and what impact did it have, if any, on subsequent decisions?
The fact that Greenwood publicly stated she wouldn’t reveal more about the exchange unless placed under oath would seem to be noteworthy. And a hell of a lot more relevant than much of the other quibbling and scripted showboating.
Sad thing is that this attorney is getting $300 bucks an hour to stonewall this stuff.
You hire your lawyer to protect you. To be your bodyguard. To keep you from getting sued. To take the punches for you. That’s exactly what Harris did.
If he was your lawyer, would you want him to say “Oh, I guess you’re right Senator. We completely screwed up and violated the law. Come and get us.” No. You would fire and sue him, and have the option of reporting him to the Office of Disciplinary Counsel.
The lawyer is absolutely not ethically obligated to acknowledge a problem. And in fact he cannot unless his client specifically authorizes him to do so. The lawyer is the client’s agent, and one of limited authority (i.e., only such authority as his client delegates to him). He is your confident, the same way a priest is in confession. I think you are thinking more in terms of an auditor, who owes no duties of loyalty or confidentiality to his client. A lawyer is a different sort of animal.
Again, Senator Kim is in a different situation altogether, and despite having lots of time and lots of State resources at her disposal (the same resources she and you say UH should be using instead of outside counsel), she has still refused to release very same set of documents. Why the double standard? Why does she get a pass?
Even if, for the sake of argument, we accept all of your viewpoint.
Harris still did a disservice to his client, compounding the clients public image woes and political plight.
If he couldn’t give a straight answer, he should have demurred and asked the committee to direct the questions to his clients.
In the end, he did give the university a black eye.
Do you suppose Mr. Harris could have said something like this? Would it have changed the dynamic?
“Names were redacted out of respect for the personal privacy of the individuals involved.
At the time we made that decision, we were under extreme time pressure because our client, the University of Hawaii, had directed us to make the documents public as quickly as possible because of their commitment to transparency and openness. By streamlining the process of redaction, we were able to publicly release copies of the report quickly rather than take the time necessary to evaluate each individual redaction.
However, as directed by our clients, we are now in the process of reviewing each redaction and restoring all information that would not constitute a “clearly unwarranted invasion of personal privacy” if disclosed.
I thank you for your patience.”
That would have been an attorneys response 35 to 50 years ago. Smugness under the guise of advocacy. Harris would have shifted into conversational mode if he had been addressing a judge in a black robe who, rightfully, would have been ready to climb over the bench at him about the third time the question was asked.
But attorneys don’t feel civility is part of their process. When they smell power, large crowds of them form to represent the interests of power, not taxpayers.
At what point do we replace this present cast of characters mis-managing UH? Our school has been heading downward for 20 plus years now and its apparently hitting rock bottom and running on 4 flat tires…
As far as I can tell, the quality of administrators has not changed at all on the whole over the years. There have been ups and downs, but it would seem to me that on the whole the level of managerial competence has not changed over the decades. What has changed is that there is less money. In the future, there may be even less money than there is now.
If there is a flaw in the system, it might be that there are politicians who want to avoid making tough decisions. They want what little money is available to be spread out thinly to high profile programs (sports, e.g.) that are actually weak and unnecessary.
Yes, Ian, that would have been a much better response. My sense of the Senate panel is that it would have interrupted him before he finished such a statement, but what you’ve written would have been spot on. Send UH your bill.
Stick to it, Ian. I have disagreed strongly with you on other issues. Not this one. Stand your ground. Criticism brings out the petulance in some practitioners.
There is a certain cadre that responds to criticism or questions with a condescending mix of hubris and passive aggressive language that has become the new benchmark.