A former University of Hawaii regent is suing the state over a bill signed into law this year by Gov. David Ige that downsized UH’s Board of Regents to 11 from 15 members.
Jeff Portnoy, in a complaint filed in the U.S. District Court of Hawaii, argues that Act 172 unconstitutionally interferes with the university’s autonomy. Portnoy, who is an attorney but is being represented by Eric Seitz, also takes issue with the constitutionality of the “gut and replace maneuver” used by the Legislature to pass the measure in the final days of this legislative session.
Portnoy and Seitz told reporters Tuesday that the Legislature’s long history of unduly meddling in the university’s affairs is what motivated the lawsuit.
Portnoy said he repeatedly spoke out about the Legislature’s influence on the university during the five years that he served as a regent.
“There were multiple things that happened that I thought we needed to poke the bear, and I was told by other regents and administrators, ‘Don’t poke the bear,’” said Portnoy. “And I said, ‘You know what? The bear’s been poked, and the bear is eating us alive.’ So I got the opportunity when this bill passed to do something that I couldn’t do as a regent.”
Portnoy was actively seeking reappointment this year when Act 172 became law, eliminating the seat he was seeking. But he told reporters that he had nothing personally to gain from the lawsuit. Regents are unpaid.
“My chances of the governor nominating me and the Legislature approving it are less than zero,” he said, noting that suing the state was unlikely to endear him to lawmakers. “There is nothing in this for me other than I believe someone had to stand up not just to ‘gut and replace,’ but to protect the autonomy of the university.”
In response, leaders in the Senate where the legislation originated said it was well within their prerogative to alter the composition of the Board of Regents, something they have done in the past, and that the contents of the measure received all the hearings it needed before being sent on to the governor for final approval.
“The Legislature does have the authority to determine the number of regents and the structure,” said Sen. Donna Mercado Kim (D, Kalihi Valley-Moanalua- Halawa), who chairs the Senate Committee on Higher Education.
Kim said the Legislature increased the number of regents to 12 from 11 in 1973 and then to 15 from 12 in 2007.
A statewide concern
Portnoy argues that the Hawaii Constitution affords the Board of Regents broad autonomy in managing university affairs and that the Legislature can intervene only when it comes to matters of “statewide concern.” He says that legislators never provided a rationale as to why reducing the number of regents was needed and that the measure may have been passed out of spite.
“I hope to prove that this was retaliatory — that the legislation to cut the regents from 15 to 11 was the result of actions taken by one or more regents during the previous five years, comments made about legislative interference, issues that the regents were divided on,” said Portnoy. “The elimination of several of those positions, in my view, was totally retaliatory.”
Pressed on who may have been retaliating against the regents, Portnoy pointed to Kim and Sen. Kai Kahele, who have been critics of the university. Portnoy also noted that he had helped sideline a pilot school in Hilo that Kahele had been backing. The program was eventually approved.
Kim and Kahele both denied the bill was passed to retaliate against any of the regents.
Kim said it was something the Legislature had been discussing for several years and that it was more efficient to have fewer people on the board.
She said the Senate’s position was to have just nine regents, but in a compromise with the House, they settled on 11.
Kahele said the last thing on his mind would be retaliating against any regent.
“It is reducing the regents and making each regent more strategic, more efficient and more adaptable to the current University of Hawaii system,” Kahele said of the measure.
‘Gut and replace’
Portnoy also argues that Act 172 was unconstitutional because the bill didn’t receive three readings in the House and Senate as required under the Hawaii Constitution. Rather, House Bill 398 underwent what is referred to as a “gut and replace” late in this year’s legislative session. The controversial, though not unusual, tactic is when a bill’s original contents are replaced with completely new language.
In this case the bill was stripped shortly before passage.
“Deceptive practices that radically change bills before the final vote deny the public any meaningful voice in the legislative process and reflect a fundamentally undemocratic disregard for citizen voters,” according to the complaint, which describes the “gut and replace” tactic as a “legislative shell game that confounds the public.”
In response, Kim said the contents of the measure did receive all of the hearings before the House and Senate in the form of another bill, Senate Bill 919. The Senate bill, which was introduced by Kahele, was killed late in the session by the House. To save it, its contents were inserted into House Bill 398, which passed.
Portnoy said the Senate was likely secretly trading something for the bill, which often happens in the final days of the session when bills go to conference committee. He hopes the lawsuit will unveil what it was.
But Kim said that’s not what happened.
“That happens a lot, but it didn’t happen in this case,” she said.
Portnoy, whose specialties include media law, has represented various local media outlets, including the Honolulu Star-Advertiser.
Portnoy Complaint by Honolulu Star-Advertiser on Scribd