Richard Borreca: Jeff Portnoy’s complaints on Legislature worthy, but changing legislators might be only recourse

Jeff Portnoy — Duke University School of Law graduate, Cades Schutte Fleming &Wright partner with 48 years experience, and until this year, the University of Hawaii basketball color man and former member of the UH Board of Regents — is not what you would call a burn-the-books radical.

Portnoy when representing a client is certainly capable of standing and shouting — but is perhaps more effective spelling out what the law says and how it is in his clients’ favor. (His media-outlet clients have included the Honolulu Star-Advertiser.)

Now, according to a report last week by Sophie Cocke, the Star-Advertiser’s Capitol Bureau chief, Portnoy is getting right up in the face of the state Legislature’s most powerful.

With attorney Eric Seitz representing him, Portnoy is in federal court claiming the state Legislature has “irrationally, arbitrarily — or worse, spitefully” meddled with the composition of the UH Board of Regents by lowering the number of members.

Portnoy also charges that the Legislature changed the law in a legislative sleight of hand, called “gut and replace,” in which at the last minute the contents of a bill moving through the legislative process are removed and replaced with portions of another bill.

Portnoy contends bills must have three public hearings in both the state House and Senate. He also complains that the Legislature’s action violate the university’s constitutional protections of independence and autonomy.

Indeed, the Hawaii state Constitution says the UH regents “shall have exclusive jurisdiction over the internal structure, management, and operation of the university.”

Both issues raised by the civil attorney have merit and both spotlight the Legislature’s love for meddling in higher ed and operating behind closed doors.

Valid and worthy, however, are adjectives that do not always lead to success. First, the Legislature’s committees on higher education are charged with reviewing Hawaii public colleges and university system. When a review becomes obstruction is open to debate and as lawmakers love to explain, “it is situational.”

When state Sen. Donna Kim held hearings on UH bungling a fundraising concert, it started out with a valid point and soon became a way to attack then-UH President MRC Greenwood. It is questionable whether keeping Greenwood or installing David Lassner as president was the way to turn UH into the Cambridge of the Pacific.

Still, if the university cannot get the state’s political might, such as the governor, to champion UH and enforce the constitutional dictates against meddling, why expect the courts to get involved?

The other issue Portnoy raises is about the time-honored legislative practice about doing sneaky stuff behind closed doors in the closing days of the Legislature.

Call it “gut and replace” or “last-minute conference committee draft,” pulling a fast one to move a bill into law is one of the tools available at the Legislature.

The Legislature does not do gut and replace because one lawmaker wants it. It is accomplished by a majority in the House and a majority in the Senate. It may not be stated in the rules, but gut and replace is legislative policy and even if the Legislature formally rejects it, last-minute closed-door deals are how politics works if that is what the majority wants.

So Portnoy and others need not change the rules; they need to change the majority.

Richard Borreca writes on politics on Sundays. Reach him at 808onpolitics@gmail.com.