A comment left here yesterday suggested checking the state law setting up the Office of Information Practices.

This is found in Section 92-F(41) HRS. It’s short and sweet.

§92F-41 Office of information practices; established. (a) There is established a temporary office of information practices for a special purpose within the office of the lieutenant governor for administrative purposes.
(b) The governor shall appoint a director of the office of information practices to be its chief executive officer and who shall be exempt from chapter 76.
(c) All powers and duties of the office of information practices are vested in the director and may be delegated to any other officer or employee of the office.
(d) The director may employ any other personnel that are necessary, including but not limited to attorneys and clerical staff without regard to chapter 76.

So what?

Well, first off, the governor clearly has the authority to appoint a new director for the office.

But, and in this case it’s an important “but,” all other “powers and duties…are vested in the director,” who may employ other staff as necessary.

This meant that when Paul Tsukiyama, the former director, resigned as director, the office couldn’t really function unless or until a new director was named. Gov. Lingle was apparently unable to recruit a new director for what would have been a short, lame-duck appointment, and the office could continue to function only because staff attorney Cathy Takase agreed to serve as acting director.

Typically, someone like Takase could step back into their former staff job once a new director was appointed.

But Gov. Abercrombie’s office just appointed another person to that vacant OIP staff attorney job, apparently without legal authority, since the statute gives all authority for hiring to the director.

And it was that appointment, which filled a vacant staff attorney position, that prevented the option of letting the acting director return to her former staff job once a new director is appointed.

And it’s disturbing that this is playing about against the backdrop of the governor’s continued insistence that he will not follow OIP’s legal advice that names of potential nominees on the “short list” for judicial appointments must be made public.

The governor continues to say this would discourage good candidates from applying for judicial appointments.

That excuse was again given to the Star-Advertiser by the governor’s office, according to a story in today’s newspaper.

The problem, as noted here before, is that the Hawaii Supreme Court held earlier that this concern doesn’t justify confidentiality because “in our view, no stigma would attach to any judicial nominee not eventually appointed to office inasmuch as all nominees are by definition deemed by the JSC to be qualified for appointment.”

Are these simply a series of awkward and missteps by an inexperienced administration complicated by coincidences in timing?

Excuse me for having my doubts, and for expecting that the same doubts will inevitably afflict attorneys of OIP and other “independent” agencies in the future when contemplating legal advice that runs counter to the governor’s stated predilections.