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The most important phase of the search for one of Hawaii’s top public officials may be conducted out of sight of the public.

While University of Hawaii officials say the search process for a new president has been open and transparent, the UH Board of Regents is on whether to interview finalists Julian Vasquez Heilig and Wendy Hensel in executive session.

Board Chair Gabe Lee, who declined to be interviewed for this story, said in an email Thursday that the state’s Sunshine Law on open meetings allows the 11-member board to go into executive session to consider the hiring of officers or employees where matters of privacy may be involved.

Lee also cited from the state’s Office of Information Practices that he said supports the board going into executive session to interview candidates as well as to deliberate and to vote.

But Brian Black, executive director of the Public First Law Center, said a 2019 ruling by the Hawaii Supreme Court determined that using privacy to justify secret discussions and decision-making in hiring cases must be weighed against whether there is a substantial public interest in the high-level position.

Black said the regents should be conducting the hiring process in the open.

“It’s not a matter of affecting privacy when you’re just talking about people’s backgrounds and why they’re qualified for a job,” he said, “especially when you’re hiring somebody for a high-level position like the UH president.”

Black also takes issue with the OIP ruling cited by Lee. He says it stemmed from an anonymous request asking the agency to decide whether the Agribusiness Development Corp. board of directors violated the Sunshine Law during its recent selection of a new executive director.

OIP said the ADC board was permitted under the Sunshine Law to vote in executive session so that it could avoid revealing the candidates’ identities “as both had privacy interests to be protected, and to protect the privacy interests of the selected candidate until such time as she accepted the employment offer.”

“That’s just contrary to what the Hawaii Supreme Court said,” Black said, adding that the law center is currently challenging the Agribusiness Development Corp. and another board, the Defender Council, for conducting the hiring process in executive session.

Since the Supreme Court’s ruling, several high-profile interviews of government officials have been held in public, including searches for police chiefs in Honolulu, Maui and counties and a superintendent for the Hawaii Department of Education.

A Public Interest

The 2019 Hawaii Supreme Court decision came as a result of a case involving the Honolulu Police Commission’s decision to pay then-Chief Louis Kealoha $250,000 in addition to his retirement. The court ruled that the commission violated the Sunshine Law by conducting that discussion in a closed session.

The (then known as the Civil Beat Law Center for the Public Interest) filed the case. In an interview about the 2019 case earlier this year, Black said the public wants to know more about the selection of high-level people with major control over budget decisions and state lands.

“These are people that are going to be making significant policy decisions for the entire state or controlling large amounts of taxpayer money,” he told Civil Beat.

UH, the state’s premier public institution for higher learning, has 10 campuses and seven educational centers statewide. It has around 49,000 students and 9,000 employees. Its budget is $1.2 billion, about half of which comes from state general funds appropriated by the Hawaii Legislature.

Jim Shon, a former state legislator and director of the Hawaii Educational Policy Center, said Black is correct regarding the Sunshine Law and executive sessions.

The UH Board of Regents “has been very secretive as to their own criteria in initially filtering out applicants,” said Shon. “They have not revealed the written questions nor the written answers to any part of the process. Nor do we know if the regents are divided as to future UH priorities.”

The two finalists, Vasquez Heilig and Hensel, were initially prohibited from speaking with the media. That changed when Civil Beat ran a story last week reporting allegations that Hensel was involved in retaliating against a law professor — something Hensel denies — and UH agreed to allow her to speak with reporters about the accusations.

Still, University of Hawaii officials say the search for a new president has been transparent and in line with searches for top executives at comparable institutions.

The search for the UH president began after David Lassner announced his retirement over a year ago. The search process was approved in December and included an online survey seeking public participation, the formation of a stakeholder advisory group in March and public forums held both in person and virtually in six locations statewide late last month.

The two finalists have “answered a wide range of questions” about their interest in and commitment to Hawaii, the university and its strategic plan, Dan Meisenzahl, UH’s director of communications, said in an email Thursday.

“More than 1,400 people total attended the forums in person and online,” he said. “They also met with campus leadership teams and governance groups.”

Concerns about the process were raised early on, however. 

The regents decided to name themselves as the search committee and not create a separate entity, as was done when Lassner was chosen in 2014. The , or PSAG, was comprised of 12 people nominated by the regents.

Christian Fern, executive director of the University of Hawaii Professional Assembly — the faculty union — described PSAG as a “hyper” hiring committee.

“They could have just called it ‘the hiring committee’ because that’s what everybody’s accustomed to doing in the higher-ed arena,” he said, adding that UHPA historically has not been part of the search process.

“I just felt like when I was at those meetings, it felt like they just wanted to assert their authority over the process. This is their biggest responsibility as the board.”

The PSAG includes Duane Kurisu, a former UH regent who is CEO of the publishing company aio, several faculty members and student representatives. The regents have required advisory group members to sign confidentiality agreements.

PSAG and the regents relied extensively on Chicago-based search firm  to conduct a national search, although it is the regents who make the ultimate call on who will lead the university. WittKieffer did not respond to a request to talk about the process last week.

Fern said the hiring of WittKieffer gave him more confidence in the search process, especially with the short timeline to replace Lassner by the end of this year. And he said it was common in academia for final interviews to be private.

“That’s kind of been my general sense,” he said.

Randy Moore, a former chair of the board who was involved in the previous search for a UH president, said he believes the interviews should be private, even though UH is a public institution.

“The problem with having it public is you might not get the most candid questions,” he said. “You might not get the most candid responses because you’ve got an audience that both sides are playing to.”

“If the board of directors of a bank really wanted to hire a new CEO, they would not conduct a final interview in front of all the stakeholders,” Moore said.

What Comes Next

The regents are scheduled to meet at the newly refurbished Bachman Hall on the Manoa campus Wednesday at 8:30 a.m. While the meeting will allow for a public comment period, the regents will decide after the comments whether to go into executive session.

If the regents do not finish their work Wednesday, they will , this time with no public testimony allowed and with executive session again a possibility.

Meisenzahl said the final phase of the search could have several possible outcomes.

“A president could be named Wednesday, Thursday, or at a later date,” he said in an email late Friday. “If it is a later date, that meeting would have to be agendized. That meeting would probably be the week of October 28. This could happen if contract negotiations drag on, for example.”

It is also possible, he said, that the search will not result in the hiring of a new president. 

“If that happens,” he said, “I doubt there would be much more info than that at the time. Another meeting would likely be scheduled to discuss and decide next steps.”