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Deal seems to
allow UH to release
Dobelle records
In signing a waiver, the ex-UH
president takes away the main
reason for UH secrecy
Former University of Hawaii President Evan Dobelle's waiver of his privacy right as part of a mediated settlement takes away the university's main argument that documents leading up to the decision to fire him are secret, attorneys said.
"In our opinion, given the agreements, it would be improper for the University of Hawaii to assert Dr. Dobelle's privacy interest as a basis for denying access to the records," Les Kondo, director of the state Office of Information Policy, wrote in a letter yesterday.
Attorney Bruce Voss, who specializes in First Amendment and open-records law, said if there is a comprehensive waiver of privacy, "that by far removes the largest barrier to disclosure of government records."
Thursday's mediated settlement agreements between Dobelle and the UH Board of Regents contain a clause waiving Dobelle's right to confidentiality and privacy under UH policies, the state's open-records law and the state and federal constitutions for information "regarding this dispute."
Before the privacy waiver, university attorneys turned down requests from the Star-Bulletin and other news media, as well as UH journalism professor Bev Keever, for documents including the final audit of Dobelle's protocol fund, e-mails and other correspondence leading up to the June 15 meeting when he was fired.
University lawyers did not return calls for comment yesterday. But in a letter earlier this month, they cited privacy, the then-ongoing mediation and the potential for a lawsuit in denying the public access to the documents. Thursday's mediated settlement appears to remove those arguments against disclosure.
In the settlement, the regents rescinded Dobelle's firing for cause. Both sides agreed that Dobelle and the board did nothing wrong and agreed not to sue over the termination.
Voss said the university could argue that the disclosure would "frustrate a legitimate government purpose." But he said that exception is narrow.
In a phone interview, Kondo said some, but not all, of the documents might be protected by attorney-client privilege.
Dobelle's attorney, Rick Fried, wrote a letter to Kondo yesterday requesting that disclosure of the records be delayed so that they can ask the university for the records, and to allow Dobelle a "reasonable time" to review the records prior to public disclosure.
Fried said he and his client do not know if the documents that could be disclosed fall in the category of documents "regarding this dispute," as stated in the privacy waiver. He said there could be other individuals in the documents who might have a privacy interest.
"We have no choice but to assert his privacy interest relating to those documents outside the scope of the waiver until we have had an opportunity to review the records in question," Fried wrote.
In response, Kondo wrote Fried that because of the privacy waiver, "we need not consider whether Dr. Dobelle's privacy interest allows the University of Hawaii to withhold access to the requested records, and therefore, we need no further information from Dr. Dobelle."
Kondo went on to state, "Contrary to your apparent belief, Dr. Dobelle has no statutory right or standing to demand that the University of Hawaii withhold the records because disclosure would somehow impact somebody else's privacy interest. That determination must be made by the University of Hawaii."
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Openness urged
for Dobelle deal
A contracts expert faults how
the regents changed their tune
A national expert says that University of Hawaii regents need to publicly explain why they fired UH President Evan Dobelle and then reversed the firing in a settlement Thursday.
"The key issue that I see for a public board like this is maintaining the trust relationship with the citizens of this state," said Raymond Cotton, an expert on contracts between university presidents and boards.
The board proclaimed it was firing Dobelle for cause on June 15 and then took a "180-degree turn" by agreeing to a settlement that clears Dobelle of wrongdoing and allows him to resign, he said yesterday.
"I think that needs to be clarified a bit in order to show that the board acted honorably and in the best interests of the university and they did not act out of personal pique," said Cotton, a partner in the Washington, D.C., law firm of Mintz & Levin and a vice president of ML Strategies.
The key to restoring credibility for the board is openness and a willingness to re-examine what it did, he said.
"What will help the board the most is transparency, beginning with releasing everything that had to do with the firing of this president and the settlement," Cotton said.
UH Board of Regents Chairwoman Patricia Lee did not return calls seeking comment.
Dobelle, who returned yesterday from the Democratic National Convention in Boston, told KGMB-TV yesterday that the settlement was more about clearing his name than the money.
"I'm not happy with it because it's not what I want," Dobelle said. "I'm not looking for money. What I'm looking for is having my name cleared."
The settlement gives Dobelle a payment of $1.05 million next month, pays $290,000 for his attorney fees and allows him to stay at the university for two years as a nontenured researcher at UH-Manoa at an annual salary of about $125,000.
In addition, the university will continue paying about $40,000 a year for six more years on a $2 million whole life insurance policy. When the policy is paid out, Dobelle's heirs will reimburse the university for its payments.
The total package is worth about $3.2 million, although the university will pay about $1.6 million, not including the insurance payments.
"As far as the money: Money is money. What I really asked for is to have it structured so it could help my family years from now, and I'll earn my own living," Dobelle told KGMB.
Cotton said the settlement is "on the generous side."
"In higher education you rarely see settlements this large. But on the other hand, he had a contract that provided for a large settlement in the event the relationship didn't work out," Cotton said.
Under the terms of Dobelle's contract, he was entitled to about $2.26 million in severance payments, not including a tenured faculty position at the university and the insurance policy. Dobelle gave up about $497,000 in an incentive fund designed to encourage him to stay the length of his seven-year contract.
Ralph Wolff, executive director of the accrediting body for the University of Hawaii's upper-division campuses, said he hopes the settlement means UH can focus on issues identified in recent reports.
"I'm glad there's a settlement so that neither Evan or the university would be locked in a protracted contract dispute," said Wolff, of the Western Association of Schools and Colleges senior college commission.
Cotton noted that Dobelle's attorneys fees were the highest he has seen for a case settled out of court.
"I've never seen or heard of a fee that large for a contract settlement," he said.
Dobelle's attorney Rick Fried said he had five attorneys in his office working full time for a month on the negotiations. He said he also had to pay his "dream team" of top local attorneys for their work on the case.
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