Wednesday, September 10, 1997, 3:00 p.m. The Star-Bulletin has received Attorney General Margery Bronster's 16-page preliminary report concerning Bishop Estate trustees.Bronster says in part:
“Based on the assessment to date, I have concluded that the rights of the beneficiaries may be at substantial risk. There are credible allegations that the intent of Bernice Pauahi Bishop is not being implemented, and that in specific instances a Trustee may have breached the fiduciary duty owed to the Trust beneficiaries. Accordingly, I believe it would serve the public interest to continue this investigation.”We have posted the report here for our readers:
[STATE SEAL] STATE OF HAWAII
DEPARTMENT OF THE ATTORNEY GENERAL
425 QUEEN STREET
HONOLULU, HAWAII 96813
(808) 586-1500August 29, 1997
The Honorable Benjamin J. Cayetano
Governor, State of Hawaii
Hawaii State Capitol
Honolulu, Hawaii 96813
Dear Governor Cayetano:On August 12, 1997, you directed me to investigate various allegations involving the Trustees of the Kamehameha Schools/Bishop Estate. This letter is my preliminary report on the status of the investigation.
This report is organized into six sections. Because the starting point of any investigation of Bishop Estate should be an understanding of the express terms of the will of Bernice Pauahi Bishop (the "Will"), Section I highlights the relevant portions of the Will. Several questions have been raised concerning the legal authority of the Department of the Attorney General to conduct this investigation, and Section II addresses these issues. Section III addresses the enforcement powers available. In the fourth section, I briefly describe other on-going, court-ordered inquiries into the Kamehameha Schools and the Trust accounts. Finally, I illustrate in general terms the areas where I intend to first concentrate: namely, alleged deviations from the literal language of the Will, and specific instances of breaches of fiduciary duties by the Trustees. This aspect of the report is purposefully general in nature so that the information does not compromise the integrity of our on-going investigation. You have also asked us to look at the selection process of the Trustees. Although I intend to concentrate in these areas initially, I will consider looking into other areas identified during the course of this inquiry.
This report is preliminary in nature, and is based on informal discussions with authors of the essay printed in the Honolulu Star Bulletin on August 9, 1997, entitled "Broken Trust," discussions with past Masters assigned by the Probate Court to review the Estate, discussions with Na Pua A Ke Ali'i Pauahi and other interested parties. We have also reviewed relevant court decisions, past Masters' Reports, and certain limited financial records.
Based on the assessment to date, I have concluded that the rights of the beneficiaries may be at substantial risk. There are credible allegations that the intent of Bernice Pauahi Bishop is not being implemented, and that in specific instances a Trustee may have breached the fiduciary duty owed to the Trust beneficiaries. Accordingly, I believe it would serve the public interest to continue this investigation. Before we act on any information or seek any remedy available in court we will need sworn testimony and corroborative evidence and admissible documentary evidence to support allegations of wrong-doing.
I. THE WILL OF PRINCESS BERNICE PAUAHI BISHOP
Much has been said about what the Will does and does not provide. Thus, the initial starting point must be an understanding of the Will itself. The Will consists of a will document and two codicils, executed on October 31, 1883, October 4 and 9, 1884, respectively. Copies of these documents in their entirety are attached to this report as Exhibit "A."
A. Relevant Terms of the Will
Bernice Pauahi Bishop left the bulk of her estate in trust for the following:
1. "to erect and maintain in the Hawaiian Islands two schools, each for boarding and day scholars, one for boys and one for girls, to be known as, and called the Kamehameha Schools;"With respect to decision making among the trustees, the Will mandated that:2. "to expend such amount as they may deem best, not to exceed however one-half of the fund which may come into their hands, in the purchase of suitable premises, the erection of school buildings, and in furnishing the same with the necessary and appropriate fixtures, furniture and apparatus;"
3. "to invest the remainder of the estate as they think best, and expend the annual income in the maintenance of said schools; meaning thereby the salaries of teachers, the repairing buildings and other incidental expenses;"
4. "to devote a portion of each year's income to the support and education of orphans, and others in indigent circumstances, giving the preference to Hawaiians of pure or part aboriginal blood;"
5. "the proportion in which said annual income is to be divided among the various objects above mentioned to be determined solely by my said trustees they to have full discretion.;
6. "to provide first and chiefly a good education in the common English branches, and also instruction in morals and in such useful knowledge as may tend to make good and industrious men and women;"
7. "[to provide] instruction in the higher branches to be subsidiary to the foregoing objects;" and
8. "to make all such rules and regulations as they may deem necessary for the government of said schools and to regulate the admission of pupils, and the same to alter, amend and publish upon a vote of a majority of said trustees."
1. "a majority of [the] trustees may act in all cases;"With respect to reporting requirements, the Will provided that the Trustees:2. "[the trustees] may convey real estate and perform all of the duties and powers hereby conferred;" and
3. "three of [the trustees] at least must join in all acts."
1. "shall annually make a full and complete report of all receipts and expenditures, and of the condition of said schools to the Chief Justice of the Supreme Court, or other highest judicial officer in this country;" andWith respect to the selection of Trustees, Bernice Pauahi Bishop provided:2. "shall also file before [the Chief Justice of the Supreme Court] annually an inventory of the property in their hands and how invested, and to publish the same in some Newspaper published in said Honolulu."
1. "I give, devise and bequeath all of the rest, residue and remainder of my estate real and personal, wherever situated unto [husband Charles R. Bishop, Samuel M. Damon, Charles M. Hyde, Charles M. Cooke, and William 0. Smith] their heirs and assigns forever, to hold upon the following trusts . . . ;"Section 4 of Codicil No. 2 dated October 9, 1884, provided additional conditions of the provision of the Kamehameha Schools as follows:2. "I appoint my husband Charles R. Bishop, Samuel M. Damon, Charles M. Hyde, Charles M. Cooke, and William 0. Smith, all of Honolulu, to be my trustees to carry into effect the trusts;" and
3. "I further direct that the number of my said trustees shall be kept at five; and that vacancies shall be filled by the choice of a majority of the Justices of the Supreme Court, the selection to be made from persons of the Protestant religion.
1 . "Of the two schools mentioned in the thirteenth article of my said will, I direct the school for boys shall be well established and in efficient operation before any money is expended or anything is undertaken on account of the new school for girls;"B. The Will Created a Charitable Trust2. "[the trustees] should do thorough work in regard to said schools as far as they go;"
3. "[the trustees] defer action in regard to the establishment of said school for girls, if in their opinion from the condition of my estate it may be expedient, until the life estates created by my said will have expired, and the lands so given shall have fallen into the general fund;"
4. "[the trustees] shall have power to determine to what extent said school shall be industrial, mechanical, or agricultural;"
5. "[the trustees shall] determine if tuition shall be charged in any case;;
6. "[the trustees shall] keep said school buildings insured in good Companies, and in case of loss to expend the amounts recovered in replacing or repairing said buildings;" and
7. "that the teachers of said schools shall forever be persons of the Protestant religion, but I do not intend that the choice should be restricted to persons of any particular sect of Protestants."
The trust estate created under the Will is a charitable trust. Midkiff v. Kobayashi, 54 Haw. 299, 300 (1973). It is the purpose to which the trust property is devoted that determines whether a trust is charitable. "In the case of a private trust, property is devoted to the use of specified persons who are designed beneficiaries of the trust. In the case of a charitable trust, property is devoted to the accomplishment of purposes which are beneficial or may be supposed to be beneficial to the community." 4 A. Scott, Scott on Trusts,
348, p. 2770 (3d Ed. 1967).
The Bishop Estate is exempt from federal and state income taxation because it qualifies as a charitable organization under the Internal Revenue Code
1. organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes;II. THE ROLE OF THE ATTORNEY GENERAL2. no part of its net earnings inures to benefit any private individual; and
3. no substantial part of its activities consists of carrying on propaganda or otherwise attempting to influence legislation, i.e., lobbying.
Several questions have been raised regarding the Attorney General's authority to investigate the Bishop Estate. The Attorney General's authority arises principally out of the statutes and common law as described briefly below.
A. The Attorney General has Broad Statutory Authority to Conduct Investigations
Haw. Rev. Stat.
The statute gives the Attorney General a broad array of powers to conduct this investigation. Haw. Rev. Stat.
(b) The attorney general, when conducting a civil, administrative, or criminal investigation . . . may, subject to the privilege enjoyed by all witnesses in this State, subpoena witnesses, examine them under oath, and require the production of any books, papers, documents, or other objects designated therein or any other record however maintained, including those electronically stored, which are relevant or material to the investigation.B. The Attorney General is Responsible for Charitable TrustsThe Attorney General, as parens patriae (literally "parent of the country") of charitable trusts2, oversees the administration of charitable trusts, investigates the transactions and operations of the trust for the purpose of determining whether the trust is being properly administered, and brings any abuse or deviation on the part of the trustees to the attention of the court for correction and enforcement of the terms of the trust instrument. Midkiff v. Kobayashi, 54 Haw. 299, 335, 507 P.2d 724, 745 (1973) (citation omitted). Accord 14 C.J.S. Charities
Because there are no designated beneficiaries in a charitable trust, no individual can ordinarily maintain a suit to enforce the provisions of such a trust. Thus, the general rule is that the Attorney General may file such suits on behalf of the beneficiaries. "Since the community is interested in the enforcement of charitable trusts, a suit to enforce a charitable trust can be maintained by the Attorney General of the State in which the charitable trust is to be administered." Restatement (Second) of Trusts
The decision to initiate suit questioning trust administration rests in the discretion of the Attorney General. Berg v. Gorton, 567 P.2d 187 (Wash. 1977) (court dismissed an action by taxpayers to compel suit because attorney general had discretion to sue to recover funds allegedly improperly disbursed). The Attorney General's decision not to sue can, however, be challenged upon the ground that she refused to exercise her discretion or abused it. See Application of Martin, 243 N.Y.S.2d 709, 710 (1963).
1'The Attorney General's powers to conduct investigations encompass inquiries into charitable trusts. Courts throughout the country have long recognized the right of the attorney general to issue subpoenas and obtain information and records relating to the administration of the trust for the proper enforcement of the trust. See In re Application of Abrams v. Temple of the Lost Sheep, 562 N.Y.S.2d 322 (Sup. 1990) (court recognized the right of the Attorney General to issue subpoenas and conduct investigations to determine if charitable organization is being properly administered); State v. Taylor, 361 P.2d 247 (Wash. 1961) (the Attorney General, as representative of the public, has standing to maintain an action against the trustees of a charitable trust to obtain information concerning the course of administration). See also Annotation, Duty of trustees of charitable trust to furnish information and records to attorney general relating to trust administration, 86 A.L.R. 2d 1375 (1962).III. ENFORCEMENT OF THE TRUST2In Hawaii, there are no statutes which govern the scope of the Attorney General's power in regard to charitable trusts. The Attorney General's oversight responsibility, therefore, is derived from common law. The common law is made part of the laws of Hawaii through Hawaii Revised Statutes
A. Enforcement by the Attorney General
Enforcement remedies available to the Attorney General include enjoining wrongful conduct, rescinding or canceling a transfer of property, seeking appointment of a receiver, seeking removal of a trustee, compelling an accounting, compelling redress of a breach or performance of trustee duties. See D. Freed and E. Schaeter, Charities and Charitable Foundations
B. Co-Trustee Suits
The Hawaii Supreme Court recognizes the authority of co-trustees to maintain suits.
There is another principle of trust law which permits one trustee to bring an action against his co-trustee to compel the latter to perform his duties under the trust or to enjoin him from committing a breach of trust or to compel him to redress a breach of trust. This results from the duty owed to the beneficiary by a trustee ëto prevent a co-trustee from committing a breach of trust or to compel a co-trustee to redress a breach of trust.í Failure to do so could render the trustee himself also guilty of breach of trust ....The rule is no different for charitable trusts as illustrated in Professor Scott's treatise:
It is frequently said in the cases that the Attorney General alone has power to maintain suits for the enforcement of charitable trusts. This, however, is not strictly true. It is clear, for example, that where there are several trustees, one of them may maintain an action against the others to enforce the trust or to compel the redress of a breach of trust.Richards v Midkiff, 48 Haw. 32, 42-43 (1964) (citations omitted).C. Suits by Others
In certain circumstances, courts have allowed trust beneficiaries to sue. In the Kapiolani Park case, the court determined the attorney general abused his office, and in order to afford a remedy to trust beneficiaries, granted plaintiff standing to sue. See Kapiolani Park Preservation Soc. v. City and County of Honolulu, 69 Haw. 569, 572-73, 751 P.2d 1022, 1024-25 (1988).
IV. PENDING INQUIRIES WHICH MAY IMPACT THE INVESTIGATION
There are two reports which will soon be filed with the Probate Court which may impact this investigation: (i) the Fact Finding Report by Patrick Yim and (ii) the Master's Report for the 109th and 110th Accounts by Master Colbert Matsumoto. Both reports are likely to provide helpful information relating to the allegations of mismanagement and financial improprieties. It is our intent to avoid duplicating work already completed.
A. Fact Finding Report
On July 10, 1997, the Probate Court appointed retired Judge Patrick Yim as the "Fact Finder" to conduct an inquiry. The Court ordered Judge Yim to present a status report not later than August 29, 1997. A copy of the Order is attached as Exhibit "B." The Fact Finder is to "ascertain the material and relevant facts concerning various allegations, rumors, and innuendo concerning the management and administration of the Kamehameha Schools." Judge Yim's inquiry arose after students, faculty and staff complained of harassment, intimidation and micromanagement at the school. It is our understanding that the inquiry will focus on educational matters. We do not intend to duplicate Judge Yim's efforts. We will review his report and consider elements of his report that may be relevant to our investigation.
B. Master's Report for 109th and 110th Annual Account of the Trust
Each year the Trustees file an Annual Account with the Probate Court. The Probate Court appoints a Master to assist in the review of the Annual Accounts of the Trust. The Master inspects the financial status of the Trust in a particular year. Colbert Matsumoto is currently reviewing the years July 1, 1993, to June 30, 1994, and July 1, 1994, to June 30, 1995. A copy of the Order appointing Colbert Matsumoto as Master is attached as Exhibit "C." The Attorney General reviews the Master's report and submits her comments to the Probate Court. If the Master discovers any wrongdoing, the Attorney General has the duty to petition the Probate Court to obtain redress.
V. AREAS TO INVESTIGATE
You have directed me to investigate allegations of mismanagement of the Bishop Estate. Specifically, you asked that I look into the process to select and appoint Trustees, alleged breaches of fiduciary duties, and compensation issues. In addition, during the past few weeks, we have been made aware of numerous allegations regarding the Trustees. These allegations range from complaints involving breaches of fiduciary duty to demands for wholesale restructuring of the Estate.
I have decided to focus my investigation on the following areas: ( I ) Whether in specific instances, a Trustee has breached his or her fiduciary duty to the Estate; and (2) Whether certain practices which appear to deviate from the express terms of the Will are proper. Before providing general illustrations of the allegations, I will briefly summarize the legal standards involved. Please note that the allegations discussed are illustrative in nature and not exhaustive, and primarily based on information available in the public domain. (See e.g., "Broken Trust," attached as Exhibit "D.")
A. Whether a Trustee has Breached the Fiduciary Duty to the Estate
1 . Legal Standard
The duties of the trustee of a charitable trust are similar to the duties of the trustee of a private trust. Restatement (Second) Trusts
Specifically, the trustees of a charitable trust, like the trustees of a private trust, are subject to the following duties:
to administer the trust,Restatement (Second) Trusts
to administer it solely in the Interest of effectuating the charitable purposes,
to not to delegate to others the doing of acts which they can reasonably be required personally to perform,
to keep and render clear and accurate accounts with respect to the administration of the trust,
to furnish complete and accurate information as to the nature and amount of the trust property, in administering the trust to exercise such care and skill as a man of ordinary prudence would exercise in dealing with his own property,
to take reasonable steps to take and keep control of the trust property,
to use reasonable care and skill to preserve the trust property,
to take reasonable steps to realize on claims which are a part of the trust property,
to defend actions which may result in a loss to the trust estate, unless it is reasonable not to make such defense,
to keep the trust property separate from their individual property,
to act properly in making deposits of trust funds in a bank,
to use reasonable care and skill to make the trust property productive.Trustees of charitable trusts, like trustees of private trusts, must meet their fiduciary duties to the trust. Fiduciary duties include a duty of due diligence, non-delegation of powers, loyalty, devotion to the accomplishment of the purposes of the trust, an absence of self-dealing, and an absence of personal profit or gain. See Master's Report on the Eighty-Fifth Annual Report of the Trustees, filed on June 10, 1976, in Equity No. 2048 (the "Guidelines", attached as Exhibit "C"), at p. 7, citing Steiner v. Hawaiian Trust Co., 47 Haw. 548 (1964). The duty of loyalty has been described as the paramount obligation of a trustee. See Ahuna v. Department of Hawaiian Home Lands, 64 Haw. 327, 640 P.2d 1161 (1982) ("one specific trust duty is the obligation to administer the trust solely in the interest of the beneficiary." 64 Haw. at 340).
"Where discretion is conferred upon the trustees of a charitable trust, the court will not interfere with the exercise of their discretion, except to prevent an abuse of discretion." Takabuki v. Ching, 67 Haw. 515, 530 (1985). However, in reviewing actions involving self dealing, the level of scrutiny is heightened. There is authority that "the prohibition against self-dealing does not depend upon proof of bad faith, but is absolute so as to avoid the possibility of fraud and the temptation of self-interest." 76 Am. Jur. 2d Trusts
2. Allegations Regarding Breaches of Fiduciary Duties
There have been numerous allegations relating to self dealing and/or co-investing. Specifically, one or more of the Trustees have allegedly been involved in investing money in projects and/or entities in which the Estate is also an investor. A recent example raised is a Texas methane gas venture that Trustees reportedly personally invested more than $2 million and the Estate invested approximately $85 million. This calls into question the Trustees' duty against self dealing and the Trustees' duty of loyalty. In 1996, because of these or similar concerns, the Probate Court ordered that "the Trustees formalize and adopt a written conflict of interest policy prohibiting the Trustees and Trust Estate's employees from participating in investments in which the Trust Estate or its subsidiaries are involved."3
There have also been allegations relating to Trustees acting in a conflict position. Specifically, in the "Broken Trust" article, the authors criticize Trustee Henry Peters for allegedly negotiating on behalf of a group purchasing an asset from the Estate. This calls into question the duty of loyalty which has been described as "a duty of utmost importance." Ahuna v. Department of Hawaiian Home Lands, 64 Haw. 327, 640 P.2d 1161 (1982).
Throughout the media reports, there are allegations concerning the propriety of certain investments. While it is not our intent to question the business judgment of the Trustees, there are a number of questions raised that warrant further investigation. If any investments involve conflicts, such investment decisions may be subject to a different standard than a reasonable prudent investor. They also implicate questions relating to waste of trust assets.
There are also significant allegations relating to the manner in which the estate is managed and/or operated day to day. Specifically, the "Broken Trust" article reported that individual Trustees take actions unilaterally. The Will specifically provides that the Trustees may only act as a group and that action shall not be taken by fewer than a majority. Certain allegations should be reviewed to determine whether or not the actions are consistent with the terms of the Will and the common law requirements relating to delegation of duties.
There have also been reports about the use of estate assets to promote the personal interests of an individual Trustee as opposed to promoting the interest of the beneficiaries of the Trust. An example of this is the use of trust personnel and/or money to help improve a personal residence of one of the Trustees. This, if true, is a clear fundamental breach which violates the duty prohibiting self dealing. Other allegations relate to the use of the trust assets to retain a lobbyist to help lobby against laws that would place limitations on trustee compensation. It is highly questionable how this furthers the interest of the beneficiaries as opposed to the individual Trustees.
There is great public interest in the level of compensation the Trustees receive. Although the Will makes no specific provision for the compensation of Trustees, the Hawaii Supreme Court has recognized since at least 1943, that a trustee is entitled to some compensation. Statutorily, the Trustees are "limited to" a sliding schedule of fees on a percentage basis on all moneys received in the nature of revenue or income of the estate. Haw. Rev. Stat.
You also specifically directed me to look into the process to select and appoint Trustees. While this issue is not a primary focus of this inquiry, we intend to look into this matter at the appropriate time.
B. Whether Deviations from the Will are Proper
I . Legal Standard
The court will direct or permit the trustee of a charitable trust to deviate from a term of the trust if it appears to the court that compliance is impossible or illegal, or that owing to circumstances not known to the settlor and not anticipated by him compliance would defeat or substantially impair the accomplishment of the purposes of the trust. Restatement (Second) Trusts
The Hawaii Supreme Court has instructed that if a deviation from any trust provision is necessary in the interest of the trust, the power to authorize the deviation rests solely with the court. Midkiff. Kobayashi, 54 Haw. 299, 336 (1973). Therefore, when, in the course of managing the trust, the Trustees have questions or concerns about their authority or duty as set forth in the Will, the proper approach is to seek guidance from the Probate Court. As the State Supreme Court said, "[t]hat the Trustees of the Estate of Bernice Pauahi Bishop may seek instructions from the court, of course, is beyond cavil." Takabuki v. Ching, 67 Haw. at 527 (citations omitted). In fact, the State Supreme Court has previously chastised both the Trustees and the attorney general for "not being diligent either with seeking instructions from the Court or promptly bringing their concerns to the attention of the Court." Id., at 525.
For example, by decision dated July 13, 1944, in Equity No. 4399, the Trustees were authorized to deviate from the Will's mandate that separate schools for boys and girls be established when the court allowed the Trustees to establish a coeducational department. However, allegations that certain deviations from the stated mandates of the Will were made without court approval warrant further inquiry.
2. Allegations Involving Deviation from the Will
The Will mandates the Trustees "to expend the annual income in the maintenance of the schools." It is unclear upon what authority substantial income sums are accumulated each year.
The Will also mandates that the Trustees "shall also file before [the Chief Justice of the Supreme Court, or other highest judicial officer] annually an inventory of the property in their hands and how invested, and to publish the same in some Newspaper published in said Honolulu." The inventory has not been published in detail in any such newspaper as ordered by the Probate Court in 1996. Recent disclosures in the media allege that the Bishop Estate is purposefully shrouded in secrecy, and employees under their employment contract have been required to remain silent and directed not to come forward under threat of termination of employment and pension entitlements. It is apparent from the plain language of the Will that Bernice Pauahi Bishop directed openness and full disclosure.5
With respect to vacancies, the Will mandates that the "vacancies shall be filled by the choice of a majority of the Justices of the Supreme Court, the selection to be made from persons of the Protestant religion." This religion requirement has not been a part of the process.
The Will does not mandate a retirement age. However, there is evidence that the Trustees are subject to a mandatory retirement at the age of 70.
3Findings of Fact, Conclusions of Law and Order Approving 107th and 108th Annual Report filed February 9. 1996. in Equity No. 2048. at p.6. See Exhibit "C."VI. CONCLUSION4Findings of Fact, Conclusions of Law and Order Approving 106th Annual Report filed December 27, 1993, in Equity No. 2048.
5The Will mandated in pertinent part. that "the trustees shall annually make a full and complete report of all receipts and expenditures . . . and shall also file . . . annually an inventory of the property in their hands and how invested. and to publish the same in some Newspaper published in said Honolulu." See Exhibit "A".
I will pursue all of the actions described above, as well as anything else within the scope of my authority that is in the best interest of the Trust. Any time during and upon completion of this investigation I intend to take appropriate action to remedy perceived problems, including seeking court instructions, reformation or actions against the individual Trustees. Other actions may also include recommendations to the Master for inclusion of issues in his Review of the Account Reports, or to the Trustees directly or to the Legislature for changes in the relevant law.
Very truly yours,
[SIGNATURE]Margery S. Bronster
Attorney General
Bishop Estate Archive
