Hawaii boards must release records showing hiring decisions, judge says

Associated Press

a day ago

Two state boards have acknowledged that they violated Hawaiʻi's Sunshine Law when they hired top-level state employees in a series of closed-door meetings and interviews.
The admission comes more than a year after the Public First Law Center filed a suit against the state-owned Agribusiness Development Corp. and state Defender Council, which oversees the Office of the Public Defender, in a case that could have broad implications for government transparency.
The lawsuit seeks to clarify the responsibility of boards and commissions to transparently hire, fire and evaluate top-level state employees. Last month, Circuit Court Judge Jordon Kimura issued an order that included the release of previously confidential executive session meeting minutes.
For the ADC, the minutes reveal the board's struggle to choose an executive director who would move the agency forward while not harming political connections in the Legislature and elsewhere. The board ultimately chose Wendy Gady as the best candidate for the future well-being of the ADC.
The Defender Council selected Jon Ikenaga as State Public Defender in 2023. Kimura found the Defender Council failed to keep proper records for public meetings, including executive session meetings, when it deliberated on the appointment of Ikenaga. The council also wrongfully cited privacy concerns, among other things, for going into executive session, the judge said.
The court likewise agreed the ADC's board made a slew of Sunshine Law missteps in the hiring of Gady, inappropriately using ad hoc committees in the candidate search and wrongfully interviewing candidates in private.
Ultimately, the Public First lawsuit aims to have the court throw out a 2023 opinion from the Office of Information Practices that the ADC, the Defender Council and other state boards and commissions say is justification to keep the hiring process secret.
The judge is expected to issue a ruling in a few weeks on the merits of the OIP opinion and whether it is legally sound.
But the fact the agencies have acknowledged their violations and released previously redacted meeting records that the judge has signed off on, Public First Law Center attorneys say, suggests the OIP opinion may be tossed out.
'That's the heart of the case, basically,' said Ben Creps, staff attorney at the Public First Law Center, which advocates for government transparency. 'We think it's a bad precedent.'
'What The Heck Is This?'
The agribusiness corporation, which has often been criticized by lawmakers for operating without much oversight, held a series of closed interviews over the course of July and August 2023, ultimately resulting in the hire of Gady.
Gady's hire was publicly announced in mid-August and days later, an anonymous complaint was lodged with the agency, seeking clarification over whether the corporation violated Sunshine Laws.
The OIP then issued an opinion that although the ADC had failed to meet certain Sunshine Law requirements, such as failing to give sufficient notice ahead of the meetings, the board's decision to interview, deliberate and vote on candidates in executive session was justified.
But a 2019 Hawaiʻi Supreme Court ruling said hiring, firing and job evaluations of key state officials must be done publicly. That ruling came out of the law center's challenge of the Honolulu Police Commission's decision to give disgraced police chief Louis Kealoha a $250,000 severance payout on top of his $150,000 annual retirement pay.
'So in 2023, it was like what the heck is this?'' Creps said.
In the 20 months since the OIP opinion, some boards and commissions have cited it as justification for shutting the door on the public. That includes the University of Hawaiʻi Board of Regents, which held secret interviews for its new president last year.
The law center wants the court to declare the 2023 OIP opinion 'palpably erroneous' to stop other state entities from following suit. Kimura is expected to reach a decision this month.
In the meantime, the ADC Board of Directors and the Defender Council have been ordered to pay $20,000 in attorneys' fees to the law center and undertake Sunshine Law training.
'Following this training, the Board will engage in discussions on how to best improve transparency — both at its public meetings and throughout any future executive director selection processes,' ADC chair Jayson Watts said in an emailed statement.
Behind The Curtain
Kimura's stipulation that the ADC board release its unredacted minutes from meetings in July and August 2023 where it interviewed candidates for the executive director job and ultimately picked one now allows the public to see what the board members were thinking when they ultimately chose Gady.
The selection process followed the unexpected death of longtime executive director James Nakatani in April 2023. Board members appeared resolved to find a director who could help shake the agency's image that it collected millions of state dollars while working in obscurity and with little oversight.
That reputation stems from a 2021 state audit that found the ADC and its board were failing in their mandate, with finances and records in disarray, despite heavy investments.
The minutes show board members weighing two potential candidates — Gady and former ADC board chair Fred Lau — who they believed had strengths in different areas. Gady brought enthusiasm, long-term thinking and vision, while Lau, who stepped down as board chair to apply for the executive director job, had institutional knowledge and political clout.
'Mr. Lau is more than qualified. That being said, selecting Mr. Lau would, I think, place a lot of scrutiny on ADC,' Watts said during the meeting. 'We're going to be accused of potentially doing an insider thing although it's totally not.'
In his interview with the board, Lau showed an acute understanding of the political sphere and the ADC's work gaining funding and working alongside lawmakers, including Sen. Donovan Dela Cruz, chair of the Senate Ways and Means Committee.
Dela Cruz is well-known as a champion of the ADC, which has tens of millions of dollars worth of projects in his Wahiawā district. That includes more than $30 million for a centralized facility for school meal preparation and millions more for other agriculture-related infrastructure investments.
State agriculture Director Sharon Hurd, who sits on the board, said at the meeting that the public perception was that board chair Lau's stepping down created 'a foregone conclusion' that he would become director.
'I've been on the ADC board for two years, but I've been involved in the background for a decade,' Lau told the board. 'So I know what's going on. In fact some of it was at my prodding.'
And while some board members thought the executive director's role could be enough work for two people, the board unanimously decided Gady was the best fit for the role because she appeared committed to the role for a longer period.
'This is not done one year, two years only,' former ADC chair Lyle Tabata said. 'There is a lot more at stake than one or two years of showing the (Legislature) you can produce.'
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This story was originally published by Honolulu Civil Beat and distributed through a partnership with The Associated Press.