Circuit Judge Bambi Weil ordersBy Rick Daysog
the permanent and immediate dismissal
of Marion Mae Lokelani Lindsey from
her post as Bishop Estate trustee,
culminating what some have called
Hawaii's biggest trial since statehood
She was the first female trustee of the multibillion-dollar Bishop Estate and was the only career educator on its five-member board.
Yesterday, Marion Mae Lokelani Lindsey became the first board member to be removed in the 114-year history of the Bishop Estate.
In a two-paragraph decision, Circuit Judge Bambi Weil ordered the permanent and immediate dismissal of the 60-year-old Lindsey from her $1 million-a-year post, culminating what some have called the biggest trial since statehood.
In many ways, Weil's landmark decision represents a major step toward reforming the charitable trust and estate-run Kamehameha Schools, observers say.
"Today we begin the process of healing," said trustee Oswald Stender. "I believe it is a day of joy for Kamehameha Schools and for the teachers and students of Kamehameha."
Stender and fellow trustee Gerard Jervis sued for Lindsey's ouster in December 1997, saying she breached her fiduciary duties, usurped the authority of popular schools President Michael Chun and was unfit to serve as a trustee.
During the five-month trial that ended last month, attorneys for Stender and Jervis paraded scores of witnesses who testified about Lindsey's alleged micromanagement of school programs, misuse of estate funds and intimidation of staffers and students.
Stender and Jervis also charged that Lindsey in December released a flawed report that alleged that the longer students stayed at the Kamehameha Schools, the worse they performed as measured by standardized test scores.
The study also said that more than 40 graduating students in the class of 1997 could barely read at the 12th-grade level.
Lindsey's report, entitled "An Imperative for Educational Change," relied on faulty data and inaccurate methodology and was designed to deflect blame from a scathing 1997 report by court-appointed fact-finder Patrick Yim, Stender's lawyers said.
Yim, a former state Circuit Court judge, charged that Lindsey created a climate of "intimidation," fostered an atmosphere of favoritism and was responsible for much of the morale problem at Kamehameha Schools.
"That was the most egregious thing that happened," said Stender about the release of the Lindsey report.
Lindsey, a former Maui schools superintendent, was not available for comment, but in the past she has denied wrongdoing and accused Stender of waging a smear campaign to discredit her.
David Gierlach, Lindsey's attorney, said yesterday that she will appeal Weil's ruling to the state Supreme Court. The high court has named a substitute panel of judges to hear Bishop Estate cases because the sitting judges named the trustees.
Gierlach also will seek a stay of Weil's order that would allow Lindsey to remain as trustee pending the appeal. Under Hawaii probate law, an appeal does not automatically stay a removal decision.
Weil's decision came on the eve of a hearing to temporarily remove all five Bishop Estate trustees. Probate Judge Kevin Chang has ordered the trustees to demonstrate why they should not step down or be removed temporarily in the wake of a threat from the Internal Revenue Service to revoke the estate's tax-exempt status.
If Chang does not order the immediate interim removal of the trustees today or decides to rule later, observers believe that Lindsey's ouster will permanently change the balance of power in the boardroom, long dominated by political insiders like former state House Speaker Henry Peters, former state Senate President Richard "Dickie" Wong and Lindsey, a former candidate for Maui mayor.
'A first step' toward reformCritics see Lindsey's removal as an important step toward reforming the scandal-plagued estate. Gov. Ben Cayetano, who ordered then-Attorney General Margery Bronster to investigate the trustees in August 1997, said he took no joy in Lindsey's removal but said Weil's decision will help improve the estate for its beneficiaries and make Kamehameha Schools a better educational institution for its students.
"It's the beginning of the rational reform of the Bishop Estate trusteeship," added U.S. District Judge Sam King, a co-author of the 1997 "Broken Trust" essay which criticized trustees' management of the estate.
Bronster commentsBronster, meanwhile, commended Weil's decision but said she was not surprised by the outcome given the facts presented during the trial. Bronster -- who separately had sued for the permanent and temporary removal of at least four of the trustees -- believes there is ample evidence to remove all five trustees.
Last week, the Senate -- on a 14-11 vote -- refused to confirm Bronster to a second four-year term, in a move Bronster believes was tied to her aggressive investigation of the trustees.
Asked if she felt a sense of vindication, Bronster said she took no joy from Lindsey's removal, just a sense that justice is being served.
"I think it's an important first step, but it's only a first step," she said. "But hopefully, now the healing process at Kamehameha Schools can finally begin."
Lindsey's supporters, meanwhile, said they were shocked and disappointed by the judge's ruling. Peters said he believes Lindsey didn't get a fair hearing, and said that much of the case against Lindsey was based on hearsay.
"Whenever rumor and innuendo prevail over facts, I don't consider that justice," Peters said. "We all should be shocked and concerned about that."
But Stender and Jervis said they believed that testimony was so overwhelming against Lindsey that they didn't expect the ruling to go any other way. Both credited Kamehameha Schools teachers, student and staffers who testified in the trial and took part in the fact-finding process "at great risk to themselves."
They believe the decision means that schools President Chun will retain his authority over the Kapalama Heights campus. Chun did not return calls.
"I thought I knew everything that was going on on campus. But the things that were revealed in trial really surprised me," Stender said. "The students will feel better about Kamehameha Schools. They deserve the credit for going through this trial, which was not pleasant."
Weil's order yesterday did not provide a detailed explanation. That will come when Judge Weil files her findings of fact and conclusions of law.
Emotionally charged trialIn many ways, the grueling, five-month trial was one for the history books. More than 70 witnesses testified during the trial, and thousands of pages of exhibits were introduced as evidence.
In between mind-numbing testimony about test scores, management and educational audits and the arcane details of Hawaii probate law, witnesses provided startling and often emotional testimony about alleged incidents of intimidation and mismanagement.
At times, Lindsey and Stender were reduced to tears during the trial.
During the Nov. 10 testimony of Randie Fong -- the popular head of the schools' performing arts department -- Lindsey glared at the witness, shook her head in disagreement and mouthed the words "liar" when Fong described an April 1997 encounter with Lindsey in which he alleged she swore and screamed at him.
Another witness, Kamani Kuala'au, the 1997 Kamehameha Schools student body president who now is a student at Princeton University, recalled in his Dec. 28 testimony that he broke down in tears and his stomach was in knots after a May 1997 encounter in which Lindsey grilled him at her downtown office for more than two hours.
James Popham, a retired education professor at the University of California-Los Angeles and an expert witness for the Stender-Jervis team, called Lindsey "incompetent and unfair" for her release of the Lindsey report. Popham argued that the Lindsey report was so riddled with errors that it "sounded like a report from someone with an ax to grind."
"My conclusion is that the author is both incompetent and unfair and is not qualified as an educational policy maker because she is likely to make unsound policy decisions and those decisions will harm children," Popham said in his Feb. 3 testimony.
How to name successors?Lindsey's removal raises the problem of appointing a successor. In December 1997 the state Supreme Court ended its century-long practice of selecting trustees. In doing so, the five high court justices -- Ronald Moon, Robert Klein, Steven Levinson, Paula Nakayama and Mario Ramil -- did not implement a new mechanism for naming successors.
Randall Roth, a University of Hawaii law professor and co-author of the "Broken Trust" article, said the probate court has the authority to appoint replacements and implement a mechanism to name successor trustees.
Roth said he expects Chang to temporarily remove the remaining four members of the estate's board as a result of today's hearing and name the five-member panel of special-purpose trustees as temporary replacements.
The special-purpose trustees -- appointed by Chang to negotiate a settlement with the IRS, which is conducting an audit of the estate -- includes Hawaiian Electric Industries Inc. Treasurer Constance Lau, attorney Ronald Libkuman, retired Adm. Robert Kihune, former Iolani School headmaster David Coon and retired Honolulu Police Chief Francis Keala.
"Under the circumstances, it seems very logical to pick them," said Roth.
Bishop Estate archive
decision in stride
A sense of relief is felt amongBy Gordon Y.K. Pang
Kamehameha faculty and students
Hawaiian language teacher Kawika Eyre was instructing his class when he got the call.
It was a reporter asking for comment on Circuit Judge Bambi Weil's decision to remove Lokelani Lindsey as a trustee of Kamehameha Schools/Bishop Estate.
"We were in the middle of an oral history lesson with a kupuna -- so we continued," Eyre said.
Eyre told his students about the Weil decision toward the end of class. "They were stunned, there was a great sigh," he said. "A number of us just kind of embraced. People recognized this as a very important day. But there was no breakout of jubilation or anything like that."
That seemed to be the mood on the Kapalama Heights campus yesterday, teachers say.
Kehau Abad is one of the founders of the faculty group Na Kumu o Kamehameha, a group whose members initially were in such fear of retaliation that the only statements they made were faxed to the news media unsigned or signed by a number of them.
Abad was preparing for her economics class when she heard.
"My reaction was one of jubilation and relief," Abad said. "We have been working at this for so long. To think this is the beginning of the end of our turmoil -- it's hard to imagine this is really happening."
As classes ended for the day, teachers from the high school began gravitating toward the Midkiff Learning Center, where many meetings, both formal and informal, have taken place for more than two years.
"It's kind of a symbol of our opposition to the trustees," said Eyre, a representative for Na Kumu o Kamehameha, the schools' faculty association. "The learning center is the heart of the campus. And it speaks well of the teachers that the learning center has also become the center for change and renewal."
Abad said each of the schools' three learning centers evolved into "puuhonua," places of refuge, for teachers seeking change at the campus in large part because of the support they received from librarians.
Faculty members and others seeking Lindsey's removal said her departure is only the first step in removing barriers they believe have kept the schools downtrodden for years.
In its official statement, Na Kumu said a number of Lindsey's supporters remain. "It is partly because of these facilitators that there exists no internal mechanism to resolve grave and systemic problems within the school."
Abad said: "They need to reconcile their position with the rest of the institution. They need to turn the corner."
"We're looking at this as a renewal," Eyre said. "There is still a long way to go before Kamehameha is re-created. We're in the ashes now and we need to re-create Kamehameha. And we will."
Larry McElheny, president of the Kamehameha Schools Faculty Union, agreed.
"It's the light at the end of a tunnel, it's a ray of hope," said McElheny, an industrial arts teacher. "There are some profound problems with the organization."
McElheny said there are many things right with the institution. "It's just sad it's not reaching its full potential. Its potential is unlimited."
Teachers have been pushing for improvements for years on deaf ears for a long time, Abad said. "We need to start enacting these wonderful initiatives that people were talking about, even before this controversy, that would have helped the schools in a myriad of ways that just got squelched."
Outside the campus, there was relief and muted joy from others seeking Lindsey's removal.
"The wheels of justice turn slowly, sometimes too slowly," said Randy Roth, one of the co-authors of the "Broken Trust" essay, which helped ignite scrutiny from the state and others into misdoings at the estate.
Several people used the Hawaiian word "pono," translated loosely as right or proper, to describe Weil's decision.
"This is the right decision for the children and certainly the first step in making things pono on campus," said Roy Benham, Oahu region president, Kamehameha Schools Alumni Association.
"This is taking another step toward making things right, making things pono," said Toni Lee, president of Na Pua A Kealii Pauahi, a group representing alumni, faculty, students, parents and other stakeholders of the trust.
Gladys Brandt, also a "Broken Trust" co-author, said Weil's decision helps "to right what was considered not pono at one time."