Judge warns The joint legislative committee investigating the state's spending to comply with the Felix consent decree is derailing the state's progress in meeting crucial deadlines, a federal judge said yesterday.
state about special
education inquiries
A committee hinders state
progress in compliance, he saysBy Debra Barayuga
dbarayuga@starbulletin.com"What they're doing with respect to these continual attempts to subpoena people under the umbrella of this court borders on harassment and comes very close to obstruction of justice," said Chief U.S. District Judge David A. Ezra, adding that he will not tolerate it any further.
Sen. Colleen Hanabusa, co-chairwoman of the joint House-Senate committee, countered, "The committee will continue. The committee has no intention of stopping this investigation. We have too many questions.
"We don't believe this committee's investigation has come near to obstruction of justice," Hanabusa said.
Ezra yesterday granted a protective order that prohibits Judith Schrag from appearing tomorrow before the legislative committee looking into how the state is using more than $300 million to provide services to children with disabilities.
The investigation continues as the state's special education system is under pressure to meet certain benchmarks today and on March 31, 2002, or else face takeover by a federal receiver.
Schrag's was the third such subpoena thrown out by the judge since the committee began its investigation.
Schrag formerly provided technical assistance to the state on the federal consent decree under Felix court monitor Ivor Groves.
Ezra in July blocked subpoenas for Groves and his assistant Juanita Iwamoto, ruling that the committee had no authority to order court-appointed officials to testify.
Assistant U.S. Attorney Ted Meeker, representing the U.S. Department of Justice, argued yesterday that Schrag, as an official carrying out the court's mandate, fell under the same scope as Groves and Iwamoto and is entitled to quasi-judicial immunity.
The state attorney general had no position on Schrag's motion to quash the subpoena but contends that her judicial duties would be protected by quasi-judicial immunity.
Ezra said while he has no problem with the committee looking into state matters, it has no legal or constitutional authority to investigate the actions of officials appointed by the courts to ensure compliance with the federal consent decree.
He said the legislative committee has created a lot of publicity, but its efforts have not resulted in bringing to the court's attention any evidence of fraud, waste, abuse or mismanagement of state funds for Felix spending.
As for Ezra's comment that the committee appears to be acting for publicity purposes, Hanabusa said the intent of the committee has been clear from its beginning in June.
"We want to know where the money has been spent and are the children getting the services they need," she said.
"No one has said we are either harassing them or obstructing them," Hanabusa said. "The only people who seem to be raising those concerns are, in fact, the plaintiffs' attorneys and whenever the judge issues a ruling."
Whether the awarding of a particular contract by former schools chief Paul LeMahieu constituted a conflict of interest and a misuse of funds is for the Attorney General to decide and to investigate, Ezra said.
Deputy Attorney General Holly Shikada confirmed they do not have any information to support any allegations of waste, wrongdoing or conflict of interests by anyone under the consent decree.
Rep. Scott Saiki, co-chairman of the investigative committee, said Schrag was an important witness with a perspective as a private consultant hired to assist in special education. He said the committee is disappointed that the subpoena was quashed but is looking at its options, including a possible appeal to the 9th Circuit.
"We've always felt our objective was one the federal court shares -- to make sure the services provided to Hawaii students is appropriate and our students benefit -- that's the bottom line for our committee," he said.
The committee has done a good job of highlighting mismanagement and abuse, providing enough "ammunition" for the Attorney General's Office to look into and conduct its own investigation, Saiki said.
Shelby Floyd, one of the Felix plaintiff attorneys, called the committee's investigation a "colossal waste of time for everyone concerned outside of the Legislature."
The investigation has affected not only the court monitor but other persons forced to spend hours responding to the committee's requests and families and service providers worried about being forced to disclose confidential information or justify services being provided, she said.
More importantly, the plaintiffs are concerned that the state will be not be able to sustain its efforts in complying with the consent decree beyond the court-ordered deadlines. "At this point, we have no evidence of political will to sustain this effort," Floyd said.
Jeff Portnoy, the special master appointed by the court to monitor the state's compliance with the Felix consent decree, said he sees encouraging signs of the state's progress over the past several months.
But he warned that anyone interfering with the state's efforts to implement the consent decree will be dealt with severely by the court. He also said that the departure of LeMahieu will not be an excuse for the state's failure to meet the court-ordered deadlines.
The Associated Press
contributed to this report.