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.
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.