The Star-Bulletin recently printed excerpts from the book "Broken Trust: Greed, Mismanagement & Political Manipulation at America's Largest Charitable Trust" (University of Hawaii Press), by Judge Samuel King and law professor Randall Roth. The March 1 excerpt
concerned former Bishop Estate employee Bobby Harmon, a risk management expert who was fired after he questioned some of the estate's business practices. After Harmon communicated with government officials and reporters, Bishop Estate took legal action against him for breaching a confidentiality clause in his employment contract. The dispute was heard by Judge Bambi Weil (now known as Eden Elizabeth Hifo). Judge Hifo disputes the retelling of the Harmon incident in "Broken Trust." Her letter to the Star-Bulletin and the authors is below, along with a reply from Roth and King
Authors erred in describing court proceedings
Editor's note: The capitalizations in the letter below are the author's.
This is to correct inaccuracies regarding court rulings as to Bobby Harmon published March 1 in the Star-Bulletin, as an excerpt from the book of federal Judge Samuel King and law professor Randall Roth. The correct information is public record and available on the Hawaii State Judiciary Web site through Hoohiki information network.
EXCERPTS FROM THE BOOK
Sunday: Trustees of Bishop Estate held power without accountability, a recipe for disaster.
Monday: The selection of Bishop Estate trustees by Supreme Court justices showed signs of manipulation.
Tuesday: Kamehameha Schools alumni, staff and students rose up against trustee Lokelani Lindsey.
Wednesday: Investigating Bishop Estate was like probing the CIA, said a court-appointed master.
Thursday: Attorney General Margery Bronster went head to head with Supreme Court justices over trustee selection.
Friday: Instead of housecleaning, the interim trustees of Bishop Estate "handed the keys to the old guard."
Sunday: Readers weigh in on the new "Broken Trust" book in letters to the editor.
This link takes you to the original "Broken Trust" essay of Aug. 9, 1997, and other Star-Bulletin stories about Kamehameha Schools.
As a former news reporter and current circuit court judge for the state of Hawaii, I greatly value accuracy and accountability. The excerpted publication inaccurately asserted that court rulings had silenced Bobby Harmon's whistleblowing. The court records in that case (Civil No. 97-0-0512) show that Harmon was subject to a stipulated (agreed by Harmon's first attorney) injunction prohibiting him from disclosing Bishop Estate confidential information and documents he obtained as an estate employee; another of Harmon's attorneys conceded Harmon had violated the stipulated injunction; and Judge Bambi Weil, in ruling on the stipulated and later modified injunction, expressly allowed disclosure to law enforcement agencies, the state attorney general, who at the time was investigating Bishop Estate, and any master reviewing Bishop Estate for the probate court.
The court also allowed Harmon to speak with the Internal Revenue Service if approached by them and later disclosed to the parties that Harmon documents had been provided through an intermediary to the IRS. At the time, 1997-98, the Whistleblowers Protection Act, chapter 378 of Hawaii Revised Statutes, protected employees who report or are about to report violations of law to a public body, which included law enforcement agencies, state executive agencies and the judiciary, among others. The facts regarding the court records and rulings are set forth below.
In addition, the publication inaccurately asserted that Harmon could not collect unemployment benefits after Bishop Estate discharged him. Indeed, Bishop Estate sought to disqualify Harmon from unemployment benefits, but Harmon appealed the adverse state department ruling to the circuit court in Civil No. 98-2394. In that case Judge Weil ruled Harmon was entitled to unemployment compensation. Bishop Estate appealed the circuit court ruling to the Hawaii Supreme Court, but in October 2000 the parties filed a stipulation to dismiss that appeal. Thus, the circuit court ruling allowing unemployment benefits remained in effect. The May 27, 1999, circuit court order was signed by Harmon, who represented himself in that case before Judge Weil. The court order reads in relevant part as follows:
"(T)here was probative, substantial and reliable evidence in the record to support the finding that Appellant (Harmon) ignored his superiors directives because he concluded that he would be violating the IRS code or the insurance commissioners regulation if he complied with the directive. It is not disputed that Appellant was acting on information that indicated such action could or would jeopardize Employers (Bishop Estate's) tax-exempt status. ...
"The Court finds because of those uncontested findings for which there is support in the record, Appellant cannot be denied unemployment benefits because he was not fired for misconduct as Hawaii Revised Statutes Section 383-30(2) defines that term.
"The record shows there was no willful or wanton disregard of Employer's interests; Employer being KS/BE, the charitable estate as opposed to any individual who worked for KS/BE, and that his actions were an exercise of his discretion (as KS/BE's risk manager)."
Clearly, the authors of "Broken Trust" erred when writing because the (KS/BE) file said Harmon had been fired for wrongful actions, he could not even collect unemployment benefits. The court ruled he could.
Apparently equally unresearched and therefore inaccurate is the excerpt regarding court rulings on Mr. Harmon in the context of whistleblower. The publication quote is contrasted below with excerpts from enclosed public records in the court Web site.
Quote from "Broken Trust" excerpt:
"Then Harmon sent a long memo to several government officials and media reporters, saying he wanted them to know what had happened. Within hours, Bishop Estate lawyers hauled him into court for breaching the confidentiality clause in his employment contract and violating the terms of an injunction. Judge Bambi Weil ordered everyone who had received materials from Harmon to return them to Bishop Estate. ...
"Harmon had personally witnessed what he believed to be serious wrongdoing within a charitable trust. ... (H)e expected the judge to encourage him to tell all. Instead, she muzzled him."
Circuit Court public records for Civil No. 1CC 97-0-000512, P&C Insurance Co., Inc. et. al v. Bobby N. Harmon include the following:
» Feb. 20, 1997, before Judge Karen Radius. Mr. Harmon was represented by attorney J. Marshall. Plaintiffs were represented by attorneys R. Katz and M. Tsukazaki. The attorneys STIPULATED TO THE TERMS OF A PRELIMINARY INJUNCTION.
» June 5, 1997, before Judge Kevin S.C. Chang. Mr. Marshall withdrew as counsel for Mr. Harmon.
» Aug.26, 1997, before Judge Bambi Weil. Attorneys R. Hughes and John Goemans appeared as counsel for Mr. Harmon regarding Emergency Motion by Plaintiffs for Enforcement of the Feb. 21, 1997 Order Granting Plaintiffs Motion for Preliminary Injunction Against Defendant, which by agreement of counsel was continued to the agreed September date.
» Sept. 26, 1997, before Judge Bambi Weil for further hearing on the emergency motion and for hearing on Defendants Motion To Dissolve or Modify the Order Granting Plaintiffs Motion for Preliminary Injunction Filed 2/21/97." Court granted extended coverage application. Mr. Harmon was represented by Mr. Hughes and Mr. Goemans. Court Minutes: DEFT (defendant) CONCEDED THAT THE COOPERS & LYBRAND LETTER & THE MEETING WITH MARSHAL DIVER WERE VIOLATIONS OF THE STIPULATED ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION. Court found the violations were made on advice of counsel (Mr. Goemans) and did not justify a finding of bad faith by Mr. Harmon and therefore court declined to impose Plaintiffs requested attorneys fees against Mr. Harmon. Court took under advisement request to impose attorneys fees on Mr. Goemans. Court ordered the current preliminary injunction remain in effect, continued both Plaintiffs enforcement motion and Defendants modification motion, and took judicial notice of the ongoing investigations of KS/BE, as agreed to by the parties.
» Oct. 16, 1997, by telephone conference Judge Bambi Weil discussed with attorneys Tsukazaki (for Plaintiffs), Goemans and Hughes (for Mr. Harmon) the possibility of partial dissolution of the preliminary injunction.
» Oct. 31, 1997, before Judge Bambi Weil for further hearing on above two motions. Mr. Harmon was represented by Mr. Hughes and Mr. Goemans. Court minutes: STIPULATION PLACED ON THE RECORD THAT ORDER RE PRELIMINARY INJUNCTION MAY BE DISSOLVED AS TO THOSE DOCUMENTS PREVIOUSLY SUBMITTED TO THE COURT UNDER SEAL.
Court minutes continue: Court granted in part & denied in part Deft (defendant) Bobby N. Harmon's Motion To Dissolve or Modify the Order Granting Pltfs (plaintiff's) Motion for Preliminary Injunction filed 02/21/97. Said Motion granted as to stipulation reached by parties today & as to certain documents attached to the settlement demand letter ruled on by the court. ... COURT RULED THAT IF DEFT (defendant) HARMON IS APPROACHED BY THE INTERNAL REVENUE SERVICE, JUDGE PATRICK YIM, OR THE APPOINTED MASTER, HE IS ALLOWED TO SPEAK TO THEM & PROVIDE COPIES OF DOCUMENTS WHICH REMAIN OUTSIDE THIS COURTS RULING SO LONG AS IT IS NOT CLAIMED ATTORNEY/CLIENT PRIVILEGE OR ATTORNEY/WORK PRODUCT PRIVILEGE. THE ATTORNEY GENERAL'S INVESTIGATION WILL REMAIN GOVERNED BY RULINGS OF JUDGE (Kevin) CHANG.
Court ordered Mr. Harmon to disclose the name of the one person he had refused to identify to whom he had provided documents, and Mr. Harmon did so in writing. The Court ordered the documents returned and EXEMPTS ANY LAW ENFORCEMENT PERSONNEL FROM THIS ORDER ... Court sealed the paper Mr. Harmon had provided to the court at bench which Mr. Harmon did not want to make known to Plaintiffs or the public (and later disclosed the names by minute order of Jan. 9, 1999). Court found Mr. Goemans in bad faith regarding the prior disclosures he advised Mr. Harmon to make and granted the monetary sanctions against Mr. Goemans ($3,884.50 per Jan. 7, 1998 minutes).
» Jan. 8, 1998, court minutes noting Judge Bambi Weil signed Mr. Harmon's version of the order granting Harmon's motion to dissolve or modify the preliminary injunction and by said order expressly ALLOWING MR. HARMON TO SPEAK WITH THE ATTORNEY GENERAL.
» Jan. 9, 1998, minute order of Judge Bambi Weil: Having received affidavits from those persons identified by Mr. Harmon under seal disclosed in the minute order that they CONFIRMED HAVING DISTRIBUTED ONE (COPY) TO THE INTERNAL REVENUE SERVICE and because they refused to disclose to whom another copy was sent, the court disclosed their names for potential deposition or other appropriate action. No further action was taken regarding them and after later motions were heard the case was resolved as follows:
» Sept. 20, 2000, Stipulation for Partial Dismissal of the Complaint and Complete Dismissal of the Counterclaim as to All Claims and All Parties with Prejudice; and 2) Stipulation for Permanent Injunction and order Granting Permanent Injunction; and
» Oct. 2, 2000, Final Judgment against John Goemans. No appeal was taken in this case.
Had the authors of "Broken Trust" accessed the public records of the relevant civil actions, the above information would have been available. If indeed they did access those court records, it is difficult to understand how a federal judge and a law professor could have come to the conclusions about court rulings written in the Harmon excerpt published March 1. As a former news reporter and now judge, I expected more attention to accuracy and accountability from the authors, and that is what motivates me to write.
Eden Elizabeth Hifo
Formerly Bambi Weil
WHAT WENT WRONG AND WHY
This week the Honolulu Star-Bulletin is excerpting chapters of a new book about the Kamehameha Schools/Bishop Estate scandal that erupted in 1997 and forced the removal of trustees and changes in the estate's management. "Broken Trust: Greed, Mismanagement & Political Manipulation at America's Largest Charitable Trust" was written by two people at the heart of the event, Judge Samuel King and law professor Randall Roth. The book was published by the University of Hawaii Press (uhpress.hawaii.edu).