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August 28, 2004 - Saturday

When the student newspaper on the largest university campus in the state yields to apparent administrative censorship, it sounds to me like news. Not so in Honolulu, it seems. I didn't see anything in either Honolulu daily this morning about the apparent link between a broad legal warning from the University of Hawaii's top lawyer and the sudden disappearance of the original unedited minutes of two key Board of Regents meetings which had been available for downloading at the student newspaper's web site for most of the last week.

Even Ka Leo, the Manoa campus newspaper, has not disclosed the administrative directive, referring instead only to "technical difficulties" to explain why the minutes are no longer available.

Bob Jones, whose MidWeek column has served up juicy items from previously disclosed UH documents, immediately jumped on the issue. Bob writes:

i passed the BOR minutes by a certain prominent 1st Amendment lawyer and here's what he thinks of Kirimitzu's scare-off:

"nice try, but it is generally held that persons who receive documents may publish unless they have been in concert with someone in illegally obtaining the document. whether the publisher is responsible for defamation or privacy concerns is difficult to determine absent a review of the information and the status of the document."

In this case, of course, we're talking about the deliberations of an official body during a legally convened meeting with legal counsel present, not some informal rehashing of gossip.

I also sought out informal legal advice by taking advantage of a friend. Luckily, he responded generously with a detailed assessment. Here's his take:

Interestingly, Walter Kirimitsu doesn't indicate potential liability for invasion of privacy, which can be a tort. The probable reason is that public figures in public controversies like Dobelle usually cannot make an invasion of privacy claim, especially where there has been a waiver of statutory privacy.

The only liability he mentions is libel or slander. (Since these were originally oral statements by regents and others, their republication, albeit in writing, could arguably be slander, though I think it most probably would be considered libel). The test for both libel and slander is similar. You are correct in stating that the burden on a public figure or public official is very high: the publisher (i.e. the person republishing the minutes) would have to be shown by "clear and convincing evidence" to have harbored a high degree of awareness of probable falsity (i.e. disbelieved the truth) of the statements in the minutes. Given the unanimity of the BOR, and their stature as community pillars (whether you think they deserve it or not), it would be hard to convince a jury that a publisher clearly disbelieved the truth of the comments made by the regents.

I suspect that Walter Kirimitsu is more concerned about UH's own liability for letting the minutes out, rather than the liability of people who then passed them on. By aggressively seeking to discourage their further republication he is mitigating any damages UH could be liable for. While Dobelle may have waived his statutory privacy right and thus may not have a statutory claim against UH, I do not know if the settlement agreement has provisions that would restrict how and where the minutes are actively disseminated. If such provisions exist, Kirimitsu may be trying to avoid a breach of them.

Kirimitsu may also be concerned about statements in the minutes that pertain to non-public figures (like Dobelle's secretary or assistants) who would have an easier time bringing claims because they are not considered public figures or public officials (not every public employee is a "public official"). Of course, those claimants would still have to prove by a preponderance (less than "clear and convincing" and usually defined as "by a 50.1% probability") that the publication was (a) substantially false, (b) defamatory (i.e. tending to lower their reputation), (c) caused actual harm and (d) was republished without exercising reasonable care (i.e. some checking) as to its truth or falsity. The likelihood of someone presenting such a claim is not high in my opinion.

And so it goes this Saturday morning.

August 27, 2004 - Friday

The Star-Bulletin's Richard Borreca did a good job today of summarizing early warning signs in the Dobelle-Regents relationship, and Bob Jones added his own review of Dobelle's spending in a MidWeek column (sorry, I don't have an online link).

Several readers pointed me to the unredacted version of the Board of Regents minutes that were posted by Ka Leo earlier in the week. They are still available for viewing, at least for now. There are two sets of executive session minutes: June 15, 2004 and June 2, 2004. Fascinating reading.

Note: "9:15 a.m. PDFs gone missing," was the word this a.m. from one reader, confirmed by several other messages received about the same time. "I think they heard about your link and yanked the PDFs." It looks like this will be a continuing saga.

Then a message was received from David Iha, executive administrator and secretary of the UH Board of Regents:

Dear Ian,

I saw your posting for Wednesday, August 25th requesting the unredacted minutes of the BOR meetings.

If you receive a copy, I would appreciate it very much if you would destroy the unredacted minutes. Walter Kirimitsu sent me the following email regarding the unredacted minutes.

Please do not hesitate to call me if you have any questions.

Thanks.

David Iha
Executive Administrator and Secretary of the Board

Phone 956 8213

------- Forwarded message follows -------

Date sent: Thu, 26 Aug 2004 09:35:51 -1000
From: Walter Kirimistu <kirimits@hawaii.edu>
Subject: UNREDACTED MINUTES OF BOR MEETINGS

David: This is to confirm that any email transmission of the unredacted minutes of the Board of Regents meetings should be destroyed immediately by any recipients, and should not be transmitted to anyone else. This should apply to anyone who received such transmission. Each individual who is involved in the transmission of private confidential information contained in these minutes may be individually and personally liable for libel or defamation and resulting monetary damages. I authorize you to transmit this message to all concerned on behalf of the Board of Regents and the Office of General Counsel.

Walter S. Kirimitsu, University General Counsel

I am not a lawyer, but I'm sure Walter's advice is not the last word on this issue, especially since Mr. Dobelle has publicly waived his right to privacy in regard to these minutes and all the parties involved are most certainly public figures, making clalims for libel or defamation difficult.

Is Kirimitsu asserting privacy rights on behalf of members of the board? That would certainly add another unexpected wrinkle to the debate.

In any case, the minutes of 6/15 include the discussions and actions leading to Dobelle's firing. I have to say that I would never have waived privacy rights if I were the subject of such a discussion. The regents' discussion, both in substance and tone, is devastating for Dobelle. The idea of "damaged goods" doesn't go far enough in summing up the impact. "Toast" comes to mind.

After a long discussion, there was a resolution of "no confidence" offered by Byron Bender and seconded by Trent Kakuda. It passed unanimously. It was followed by the motion to terminate Dobelle for cause, offered by Walt Nunokawa and seconded by Jim Haynes, which also was swiftly adopted unanimously.

At one point, Kitty Lagareta challenges Dobelle's tactic of "plausible deniability":

Regent Lagareta commented that she had not heard the term “plausible deniability” used often until she became a regent and began to hear it regularly from President Dobelle’s staff. At one point Paul Costello had told her that it was the staff’s responsibility to always make sure that the President had “plausible deniability” on all matters.

After the regents voted, they launched further efforts to reach Dobelle on the mainland.

Acting President McClain again stated that while he was saddened, he understood why the decision needed to be made. He was informed that several attempts were made throughout the day through Kristen Blanchfield and Sam Callejo to reach Dr. Dobelle. The Regents were informed that she had left messages but that Dr. Dobelle had not returned her calls. The Board requested that she divulge the phone number where she had been trying to contact Dr. Dobelle. She did not provide a number. Acting President McClain added that Dr. Dobelle usually does not carry his own cell phone but that Mrs. Dobelle might have one. The Board expressed its strong desire to make additional attempts to reach Dr. Dobelle before they made a public announcement.

At 6:29 p.m. Chief of Staff Callejo was also informed of the termination.

The Board decided to contact the main reservations desk for Hyatt Hotels. Upon reaching Hyatt reservations the Board was informed by Hyatt that they showed a reservation for Evan Dobelle at the Park Hyatt Hotel in Chicago. Several attempts were made to reach Dr. Dobelle at the Park Hyatt and a message was left on his room’s voice-mail. When he failed to return the Board’s call, another attempt was again made to reach Dr. Dobelle in his room at which time the Regents learned that he had since placed a block on his phone.

A message was therefore sent via the Park Hyatt’s night manager. At 6:50 p.m. HST the Board was finally able to reach Mrs. Dobelle at the Chicago Park Hyatt Hotel. She insisted that she did not know where Dr. Dobelle was at the time and that he could be driving to Michigan. Chairperson Lee asked Mrs. Dobelle to have Dr. Dobelle call the Board as soon as possible. None of the Board’s calls were returned.

Megan at the Park Hyatt Hotel in Chicago did confirm that a message had been delivered to Dr. Dobelle’s room and that Mrs. Dobelle received it. She further stated that she did hear a male’s voice in the room and assumed we had been connected with Dr. Dobelle.

Dobelle placed a "block" on his hotel phone and then complained that he hadn't been contacted? What a kidder.

August 26, 2004 - Thursday

The folks at UH introduced another first-week-of-classes headache yesterday when everyone using Eudora as their mail software got unceremoniously cut off from the electronic lifeline. Yup. Suddenly mid-day the email simply stopped. There's a cryptic notice buried at the UH tech web site saying "cause-unknown" and recovery time-unknown". It wouldn't be so bad except that UH promotes Eudora for use by students and faculty.

But it gets worse. Another tech note says that Mac users "may not be able to connect to the Internet". It's a problem that apparently was solved and then kicked up again. That's going to cause a few heart attacks later today if it isn't resolved. UH reports: "System Engineers are working with the vendor to resolve the issue." That's a relief.

There are lingering bits of our late friend George Steele wandering in cyberspace, Lavanet to be more exact. I ran into his rendition of the "pride of Kaaawa" yesterday. Only one of those feline friends is still with us, Ms. Miki, now nearly 18, so George did this page a while back. And you can easily backtrack to his whole "whiskers n paws" collection. Thanks again, Mr. George.

Thanks to the Star-Bulletin for today's cat story from Maui.

Here's a little story that you may not have seen--journalists rallied to save their friends in Najaf.

The numbers of the uninsured and those living in poverty rose again last year according to the Census Bureau and despite widespread efforts by the Bush administration to soften or eliminate such statistical data.

And, finally, this meal marked the end of last week's anniversary-birthday experience. On Saturday night, my mother served up her annual Hawaiian offering. Just click on the photo for more.

Birthday table

August 25, 2004 - Wednesday

Former Star-Bulletin writer Pat Bigold's story about decathlete Bryan Clay's background in Hawaii and at Castle High School appeared in the Washington Post on Monday.

Lots of interesting media-related items to browse through over at the web site for the movie, "Outfoxed".

I'm told an unredacted set of some BOR minutes concerning former president Dobelle that were posted for some time at a Ka Leo site Monday contained a bunch of stuff that's of interest. Apparently it's kind of a mystery where this set of minutes originated and how they got posted. If anybody happened to download copies while they were available, I would love to see them.

Here's another batch of old photos. This one is from the Hawaiian rally on the grounds of Iolani Palace where Liko Martin's song, "All Hawaii Stand Together", was performed for the first time. The only problem is fixing the date. I guessed it was in 1976, but Joan Lander of Na Maka o ka Aina says it looks like an event held on January 16, 1977, the first "Sovereignty Sunday". In any case, just click on this photo to see the whole set. Or click on the "Old Kine Pics" button to the right and choose from among the oldies there.

August 24, 2004 - Tuesday

A shakeup appears to be looming over at the Honolulu Advertiser. Gossip says longtime staffer and editorial page editor Jerry Burris will be be making a lateral move of some kind and turning over editorial decisions to Jeanne Mariani-Belding, a one-time Star-Bulletin writer who is currently associate editor of the opinion section at Knight-Ridder's San Jose Mercury News.

Over at the Star-Bulletin, reporter Helen Altonn fell and broke her hip Sunday night, and was scheduled for surgery Monday evening. It's the second time she's broken a hip, a newsroom staffer reminds me. The first time followed a 1999 visit to columnist Ben Wood, who was then recovering from his own hip-break.

Last time around, the Star-Bulletin made Helen's hip famous, complete with x-rays. Check it out.

More from the Dobelle files. This exchange in the formerly confidential draft minutes of the Board of Regents June 2, 2004 executive session jumped out at me:

“President Dobelle stated that he wished the Board would treat him the way he treats his son Harry—with patient guidance. Regent Lagareta replied that she is not President Dobelle’s mother and she would much prefer to have an employer to employee relationship and an effective working partnership than a parent to child relationship with him.

And I got a nice note back from Martina Kruess-Leibrock of A. Kruess Optronic GMBH, Hamburg, Germany, who says she is the 8th generation to manage the family controlled company founded in 1796, and that her daughter has recently started at the company, keeping with the tradition. According to Kruess-Leibrock, the barometer (shown in yesterday's photo) was built around 1860. I'm looking forward to digging out more info about this Hamburg-Hawaii connection.

August 23, 2004 - Monday

First day of classes at UH and elsewhere, and it's a bit wet here in Kaaawa. I've shut the cat door to keep Ms. Kili inside for a while, part of a new program to try to break her new habit of disappearing into the outside world for most of the day, reappearing only to eat and run. We've been successful at getting Ms. Harriet back inside, at least for large parts of each 24-hour period, and hopefully Kili will follow.

Note that I've added a link to photos of our somewhat extended anniversary observation, which somehow spread out over a four day period last week. Just click on the "Anniversary 2004" banner to the right for more than a few photos and commentary.

This was one of my most interesting birthday presents, a beautiful old barometer made in Germany. It no longer works, but it's more than 100 years old and has an interesting history. Click on the photo to read more.

And this from a reader concerning the controversy over the Waikiki Natatorium:

Your readers may be interested in the Kaimana Beach Coalition's website, www.savekaimanabeach.org. It's got some great photos, including both historical shots and "photoshop" versions of what the Natatorium could look like if the pool was torn down and a beach restored. (When last I checked, the "gallery" button had disappeared, but you can still access the photos by clicking on the photo images that appear on the home page). It will keep the community updated on this important battle over what happens to one of the last pieces of open beachfront in urban Honolulu.

Jeremy Harris is wrong in saying that the only choice is to restore because it's on the historic register. The rules permit "adaptive reuse" of historic sites to bring them into conformity with modern health and social needs. In 1927, locals had no public pools and could get to the shoreline almost anywhere; there were a couple of hotels at the other end of Waikiki and lots of open space everywhere else. People had little understanding of bacterial and other health problems associated with crowded low-circulation pools, and modern "super bugs" had not evolved yet. Now we have lots of public pools, a tenfold increase in population and wall to wall hotels from Ala Moana to the Kuhio wall. The hundreds of thousands of people in central Honolulu can go to Ala Moana or Kapiolani park for a swim, but the area in between is hard to reach and park in and is dominated by the tourists. As a result, Ala Moana is a madhouse on weekends and will get worse as the Natatorium area becomes more commercialized and unavailable to recreational users.

Harris has conceded that the only way to pay for his "vision" of a fully restored Natatorium is to turn it into an "attraction" (a la battleship Missouri) with admission charges and commercial uses. Thus, one of two things will happen: either the fully restored natatorium will be a "success" in which it pays for itself with a stream of tour buses and commercial events that crowds out local families from the area and expands the tourist bubble eastwards to Kaimana Beach, or a "failure" in which it sits underutilized and underfunded, losing money for the taxpayers year after year with increasing pressure to find commercial uses to pay for it.

Kaimana Beach Coalition's vision of a living and well-used memorial beach fronted by the Memorial Arch (and expanding the new beach westwards when the current Waikiki Aquarium moves to Kakaako) is less expensive both to build and maintain and will benefit the whole community of ocean users while still giving due to the memory of the fallen.

Please check out the website and invite your readers to do the same.

August 22, 2004 - Sunday

The documents released by the University of Hawaii Board of Regents help to clear up another issue: whether or not the BOR made the decision to fire Dobelle while he was traveling on the mainland and "unavailable".

In its first report on the Regents' action, the Star-Bulletin reported: "Dobelle is on vacation on the mainland and is not scheduled to return to the university until next week."

A few days later, the S-B reported: "Dobelle, in a phone call from a Chicago hotel, said he also discussed his vacation plans with the board at the April board meeting two weeks earlier."

True enough but, it appears, not the whole truth. The devil is in the details, as is so often the case.

The newly disclosed records show Dobelle also made First Class reservations on June 1st to interrupt his trip and fly back to Hawaii to attend the BOR meeting. According to a United Airlines confirmation emailed to Dobelle's secretary by his assistant, Kristen Blanchfield, he would have arrived in Honolulu on Monday night, June 14, attended the BOR meeting the next day, then flown back to Chicago to rejoin his family on Wednesday.

These reservations were apparently still in place as late as Sunday, June 13, other correspondence shows.

Dobelle also had an alternative scenario to attend meetings of the Western Association of Schools and Colleges in San Jose on June 17-18, according to a another memo, and was keeping his own plans vague right up until the very last minute while deciding whether or not to attend the BOR meeting in Honolulu.

This is all very different from the "I was on vacation and unavailable" explanation that Dobelle has repeatedly cited in public statements. Or so it seems to me.

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