Roth urges ‘inner integrity’ to counter Hawaii’s rampant corruption

from Grassroot Institute of Hawaii, September 13, 2022

Is corruption worse in Hawaii than anywhere else in the United States?

Randall Roth, professor emeritus of law at the University of Hawaii, said he thinks so.

And he explained why during the Sept. 10 episode of “Hawaii Together,” on ThinkTech Hawaii, hosted by Keli‘i Akina, president of the Grassroot Institute of Hawaii. 

Roth knows a little about corruption in Hawaii. His 1997 book “Broken Trust” exposed mismanagement and corruption at the state’s largest trust, Bishop Estate, and shook Hawaii’s political and economic establishment to its core. 

Roth, who also helped produce the two popular “Price of Paradise” books in the early 1990s, pointed to the recent “mailbox conspiracy” that ended with a former Honolulu police chief, his city prosecutor wife and other people in the police department all going to prison as one glaring example of widespread criminal corruption in the state.

Other recent incidents include two state legislators and other state and county officials being caught or convicted of accepting bribes, with most of them receiving prison sentences as well.

Roth said noncriminal corruption can be just as bad, especially when it involves members of the government’s so-called watchdog groups — such as the Honolulu Police Commission, Honolulu County Ethics Commission, state Office of Disciplinary Counsel and the state judicial conduct and selection commissions.

He said both types of corruption thrive in Hawaii partly because the state has long been dominated by a single political party — which can be a recipe for disaster, no matter the party — and also because Hawaii’s economy is so limited that there aren’t many truly promising positions available for ambitious people.  

The result, Roth said, is a culture of going along to get along, not wanting to upset powerful people, or simply looking the other way, or willful blindness.

Roth said he doubted the solution can be fixed politically. Instead, he said, “at the end of the day, each of us needs to really focus on inner discipline, inner integrity, inner sense of responsibility. And I think if we live lives that reflect that kind of a virtue, I think it influences others.”

TRANSCRIPT

9-12-22 Randall Roth with Keli‘i Akina on “Hawaii Together”

Keli’i Akina: Aloha, and welcome to “Hawaii Together” on the ThinkTech Hawaii broadcast network. I’m Keli’i Akina, your host and president of the Grassroot Institute of Hawaii. My guest today is Randall Roth, a professor of law emeritus from the University of Hawaii Richardson School of Law. 

Randy, who’s been a good friend of mine through the years, is probably most famous for helping to write the blockbuster book “Broken Trust,” which began as an essay in the Honolulu Star-Bulletin back in 1997. It exposed mismanagement and corruption at the state’s largest trust, Bishop Estate, and shook Hawaii’s political and economic establishment to the core.

It also resulted in many changes at that organization —  including its name — though the book, in the end, left it open as to whether any of the reforms would really make any long-lasting difference. It’s used today as a textbook in many courses on trust law.

Back in the early 1990s, Randy helped to edit two volumes of the popular “Price of Paradise” series, which contained essays by leading thinkers about many of the state’s most pressing problems, including its high cost of living. 

Randy joins me today to talk about an issue that unfortunately has been in the news a lot here in Hawaii, and that’s corruption amongst our public officials. 

So I would like to invite you all to welcome to the program now professor Randall Roth emeritus from the University of Hawaii Richardson School of Law. Randy, welcome to the program. So glad to have you here today.

Randall Roth: Thank you. It’s my pleasure.

Akina: Well, it’s always great talking with you. You have such wonderful insights, both into the institutional and cultural history here in the state of Hawaii. 

Let’s right now at the very beginning talk about the word “corruption” in itself. For a lot of people, it conjures up a very nefarious scene of evil people carrying out some type of conspiracy in a very concerted criminal effort, but it may not be so obvious. And I think you have a broader understanding in terms of the way you use the term corruption. What is your understanding of it?

Roth: Well, it certainly includes criminal corruption. And we have a former police chief in prison right now. And his spouse, who is the senior member of the prosecutor’s office in prison right now. High-level people who are in the police department, the criminal intelligence unit, in prison right now.

We have a number of other high officials that have been indicted who could end up in prison. That and two legislators, earlier this year caught red-handed taking cash and envelopes to influence their votes. 

So corruption certainly includes criminal corruptions like those instances. But I had suggested that we talk about a noncriminal version of corruption, as corruption in the sense that a person is using or not using the powers given them by virtue of an elected or appointed position in government.

They’re using it not primarily for the benefit of the people — the public — but primarily for the benefit of themselves, or special interests of one kind or another.

I think it’s a particularly insidious form of corruption that is terrible anywhere, but here in Hawaii, where we’ve been long dominated by a single political party — and I don’t think it matters which political party it is — when you’ve got an area that’s been dominated by one political party, and then you add that we’re a remote island, thousands of miles away from the next metropolitan area, and you add our economy as such, it’s so non-diversified that there aren’t a lot of real promising positions, if you will, in Hawaii for ambitious, well-educated people who aspire to have well-paying prestigious positions in their community. 

When you combine all of that, I think it’s understandable why this non-criminal corruption, as I’ve defined it, is particularly bad in Hawaii. I think we see that in the Bishop Estate controversy that I wrote about with Judge King in the “Broken Trust” book.

But also, “The Mailbox Conspiracy.” I think this is an especially wonderful book, written by Alexander Silvert, about the now ex-police chief and his spouse and members of the criminal intelligence unit, etc. But those are stories that are just filled with not just the criminal corruption, but noncriminal corruption, which I think is, again, particularly bad here in Hawaii.

Akina: Well, Randy, I’m really glad that you pointed out the difference between criminal corruption and noncriminal corruption, and the fact that a broader definition of corruption would include both. 

But going back to some of the examples you used — and I think of others as well — for example, there are four officials in the Honolulu Department of Planning and Permitting charged in March with accepting bribes, or as you mentioned, two state legislators in February, including a former senate majority leader, were also charged with taking bribes. Both have since then been convicted.

And of course, as you mentioned, and this has been in the news so much, the major scandal at the HPD, Honolulu Police Department and the city prosecutor’s office involving the so-called mailbox conspiracy. 

So my question about all of this is: Is this business as usual? In other words, is this the way politics operates here in Hawaii and political organizations? Or has there been an increase, an uptick, in the corruption of late? What do you think?

Roth: There certainly was a lot of criminal corruption in the stories told in “The Mailbox Conspiracy” book, starting, of course, with the police chief and the people in the police department that he recruited, his spouse in the prosecutor’s office, a number of people in or associated with that city administration. 

But take a look, for example, at the police commission. These are appointed positions, prestigious positions. These are very smart, very well-educated people, very well thought of in the community who are appointed to the police commission.

And at this time that they had a police chief who was recruiting others to assist him in framing an innocent man for a very serious crime, they were engaged in what the book refers to as willful blindness. They were looking the other way, rather than use the power that they had and the responsibility that came with it, by virtue of being appointed to the police commission. 

Frankly, they were just going along to get along. They didn’t want to upset these powerful people, and the powerful people that were being recruited by those powerful people, to put pressure on them. And so they simply looked the other way. 

When the police chief intentionally caused the mistrial in a key case involved in this whole mailbox conspiracy — clearly, clearly wrongdoing — intentionally caused a mistrial — he didn’t want evidence of his corruption to come out — the chairman of the police commission at the time said, “You know, that wasn’t right, but I think he feels bad about that. I think he’s learned his lesson. I think we need to forget about the past and just look forward.” 

That’s even worse than willful blindness. That’s becoming apologetic for what in hindsight we know was egregious criminal behavior.

One other aspect of this whole thing, the police department prosecutors’ offices are filled with exceptionally intelligent, well-educated people who have been trained to spot criminal activity, trained to spot wrongdoing. And there were no whistleblowers in the police department. There were no whistleblowers in the prosecutor’s office. 

Again, these are people deciding to look the other way, and it’s not criminal. And I understand they had a lot individually to lose. And it wasn’t inevitable that the bad guys were going to get caught, sent to prison, and so it was them risking something about their own future in order to do their job properly.

And again, especially in a one-party state where we’re a long ways from anywhere else, where if you tick off the wrong people in Hawaii, you can end up having to move to a place where your roots are ripped out. It’s just really different than anyplace else. 

I think it’s a particular problem here in Hawaii, and then you add, for whatever reason, we really haven’t had accountability for wrongdoing in government. We really haven’t had transparency in a meaningful way in government. 

And so our problem is particularly bad. Corruption in Hawaii is particularly bad, and unless we make some meaningful changes, I don’t think it’s going to get better.

Akina: You speak about Hawaii and our environmental factors such as our location in the middle of the Pacific, the smallness of our community and so forth. And what you’ve described really is a culture that, if it doesn’t breed, it at least tolerates corruption.

But as you suggest, this has something to do with being in Hawaii. Are you really saying that corruption is worse here than in other states and territories?

Roth: I am.

Akina: That’s a strong statement, Randy.

Roth: I know that. And I arrived at that conclusion reluctantly over time, and I don’t think it’s because our people are any worse than people anywhere else. If there is such a thing as large groups of people that are better or worse than others, I think the people in Hawaii are wonderful people. And I love what I would describe as the culture of Hawaii.

But the reality of living in Hawaii, if you’ve been appointed to one of these prestigious bodies — the County Ethics Commission, which behaved … I think maybe there’s some explanation; they’ve never been asked to explain, but I think they behaved very poorly in the whole Kealoha series of cases; the Judicial Conduct Commission the Judicial Selection Commission; there are a number of these official watchdogs that, whether you go into the Bishop Estate controversy described in the “Broken Trust” book or you talk about this Kealoha series of cases described in “The Mailbox Conspiracy,” it’s just a pattern to where individuals, I think, say to themselves, “I could maybe point out that the justices of the Supreme Court of Hawaii, all five members of the Supreme Court of Hawaii, going back now to Bishop Estate, shouldn’t have been selecting trustees in the first place.”

The will [of Princess Bernice Pauahi Bishop] had talked about the justices of the monarchy, but that was over a hundred years ago. For many, many, many years, the law in Hawaii has been such that the Supreme Court did not have jurisdiction over selecting trustees of any trust, and so they were wrongfully selecting trustees. It created conflicts of interest. The choices they were making made it look like it was a patronage process, and in fact, there was, I think, strong evidence of a payback element that somehow the way the justices had been gotten appointed to the Supreme Court was related to who they were picking as Bishop Estate trustees.

And then the kicker, with hindsight, when “60 Minutes,” CBS’s news show, when it did a report on this in the year 2000, they said that these trustees selected by the five members of our Supreme Court had turned this huge charitable trust that Princess Pauahi had set up into, and this is a quote, “a candy store for the state’s political establishment.” These were trustees selected by our Supreme Court justices.

The Supreme Court justices should not have been making those selections in any event. Under the best set of assumptions, it demanded accountability. And yet the Judicial Conduct Commission looked the other way — didn’t even look into it. 

The Judicial Selection Commission, which reviews the performance of justices every 10 years, looks the other way. 

A number of groups that should have looked and sought accountability just didn’t. And they didn’t because these were particularly powerful members of our community that engaged in a level of wrongdoing. 

And so I come back to, is it worse here than elsewhere? When I described to law professors outside Hawaii what I just summarized for your audience, they can hardly believe that the justices would do that, and that the justices would create a candy store for the state’s political establishment, and that these various official watchdogs would engage in willful blindness and not even look at that. 

Now you used the word “culture.” That’s a very kind of explosive term in the sense that some people will look at that one way and some look at it another. I don’t think it has anything to do with ethnicity.

By culture, I think we’ve got a go-along-to-get-along culture that I think is directly traceable to a one-party state where there is no … And again, it’d be just as bad if the Republicans had total control. It’d be just as bad if the Libertarians had total control. It’s not based on the ideology or the policy preferences of the Democratic Party. 

But when you’ve got one party that’s had total control for this long, and when you’ve got a place with limited opportunities — it’s kind of like Pacific nations that oftentimes end up with one party control and various forms of corruption, and because it is so predictable, because the conditions are what I’m describing, we, you and I, everybody watching this, needs to say, “Wait a minute, we’ve got to take an honest look at this.” Rather than engage in willful blindness ourselves, if this is a problem, we’re never going to fix it unless we look it squarely in the eye and we identify just what is our problem. 

And then we’ve got to engage in robust dialogue, discussion, debate, as to what this means and what can be done about it. 

And then, whatever we do, we have to do with the interests of future generations first and foremost in our mind. 

And I’m not sure we have done that as well as we as a community are capable of doing.

Akina: Randy, I’m going to mention for our viewers right now that “Broken Trust,” which you co-authored with Judge Samuel King, is a fascinating read. If anyone wants to get into any more of the tale that Randall is telling now, that’s worth reading — not only for an insight into an institution such as Bishop Estate but an insight into what we’ve called the culture here in Hawaii that breeds a certain kind of corruption, and you’ve described well how the watchdogs are not keeping watch.

But let’s switch gears for a moment now.

Roth: Keli‘i, let me just say, it’s kind of you to say something nice about the book. I just want to add: One, we didn’t write it to make money, Judge King and I dedicated all royalties from the book to local charities. We didn’t do it to make any money. Secondly, it’s now open access. People can get the electronic copy going to Amazon or any place, Google or Apple. 

It is available free because the current trustees of Kamehameha Schools paid the University of Hawaii Press to make it open access, which I think says a lot about them, some integrity of that particular organization right now. 

So I hope people do look at that book because of what it can help us think through as a community. And then that “mailbox conspiracy” case is just the whole story of the same story, I think, only an updated version.

Akina: Very good. Thanks for sharing that. Now, let’s go and talk about the other side: whistleblowers. 

Government employees have oftentimes played a very key role in calling out corruption. Randall, what are some of the legal protections here in Hawaii for whistleblowers, and are they effective? And what is the status of our whistleblower practice here?

Roth: It varies, depending on the circumstances. There are some protections, but a lot of times, they’re there in theory and not really, I think, as a practical matter all that useful. Being a whistleblower is dangerous to a person’s future. 

I don’t know what to tell you, except to say I understand completely. If somebody’s got a lot at stake, chooses to look the other way, go along and get along, I get it. And I can’t say I would have behaved differently if I were in their shoes. I like to think I would.

Part of the human condition, I think, is that we each tend to think of ourselves as being very moral, courageous people. But we all have a significant element of self-interest. We try to do the right thing. 

We try to put the interests of other people in front of our own, especially when we’ve been empowered by being appointed or elected to a government position. 

But I’m not saying it’s ever easy for somebody to be a whistleblower when they really see a powerful person like a legislator, for example, or a police chief, for example, or a prosecutor, for example; and I know you are very well educated in Socrates and the various philosophers, but I think at the end of the day, each of us needs to really focus on inner discipline, inner integrity, inner sense of responsibility. And I think if we live lives that reflect that kind of a virtue, I think it influences others. 

I think we’ll have more whistleblowers in the future than we’ve had in the past if each of us individually — I think it starts with the individual — if we each double down and determine we’re going to do a better job than we’ve done in the past of achieving that kind of virtue. 

I really don’t know that there is a political solution to this. I like to think there is. But in a one-party state, the people that are in power have such an incentive to hang on to that power and such an incentive to limit accountability and limit transparency. 

So I’m optimistic when we look at the individual and what, you and I, individuals who are watching this, could do. I’m not real optimistic about our elected officials in this remote island country, state of ours. I wish I were more optimistic.

Akina: You know, it is an interesting thing that even though they don’t seem to be very successful, we have no end to the creation of commissions or organizations sponsored by the government who look into and deal with corruption. And as you say, you don’t have necessarily great high hopes for the government itself being able to make a difference unless individuals rise up to the highest level of values. 

This year, in particular, the state Legislature created the commission to improve standards of conduct, and the purpose ostensibly is to curb ethics violations. That was back in June and it made several suggestions, Randall. And I’m wondering what your thoughts are. 

A few of the suggestions included streamlining or making it easier for lobbyists and others to follow the law, or tightening the policies on presenting gifts to government officials, mandatory lobbyist training, prohibiting Legislatures from working as lobbyists, and several other similar proposals. What is your thought on the potential effectiveness of this kind of legislation?

Roth: I happen to know most of the members of that commission well and think highly of them. I know most of the people in the Legislature and think highly of them. We’ve got really, really good solid people involved in this, and the members of that commission, I’m sure, will come up with some of the ideas you mentioned and maybe some other ideas. And some of those I think are quite good. 

But I got to tell you, unless part of what they recommend and the Legislature puts into place, if part of it isn’t to go back and look at the police commission during the, I’ll call it the Kealoha crimes, and try to figure out why didn’t this body do its job? Why did it engage in willful blindness? 

And the same thing with the County Ethics Commission. Why did it engage, at best, willful blindness in the Office of Disciplinary Counsel? 

And going back to the whole Bishop Estate facts, why didn’t the Judicial Conduct Commission take some sort of step to hold accountable those justices, and not go in and try to name names and impose sanctions?

What we need to do is just try to understand from the community standpoint, why didn’t these official watchdog organizations work better? 

Because part of the recommendations I think from this new commission will be an inspector general, some sort of new watchdog. But we’ve got to go back and figure out why our existing official watchdogs failed so spectacularly in two of the biggest public corruption, criminal corruption, scandals in the history of this place we all love called Hawaii. 

Unless they go back and pick that apart — and it will be painful because, among other things, not just showing shortcomings of the individuals involved,, but I think putting a spotlight on the human condition in a way that all of us have that same instinct to think well of ourselves, but then maybe let our self-interest dictate even in circumstances where we have a governmental power and we’re supposed to use that in the interests of the public. 

And again, we’ve seen case after case after case where that wasn’t done here in Hawaii.

Akina: Randall, that’s a very philosophical note on which to end today’s conversation. I know there’s so much more that we could say, but you mentioned the human condition. And it was the framers of the U.S. Constitution that believed that the human condition was such that we required a government of checks and balances. 

And so it is a good insight that you’ve given us that, on the one hand, we need to delve into the causes that have led to various corruption scandals here in the state of Hawaii, but legislation alone won’t be able to deal with the human condition. 

I want to thank you so much for being with us today. I appreciate all of your expertise and insight into the matter, and hope that we’ll be having you on the show again in the future.

Roth: Keli’i, it’s always a pleasure to talk to you.

Akina: Well thank you. To the viewers, my guest today has been Randall Roth, emeritus professor of law from the University of Hawaii. And I do encourage you to take a look at the book that has been made available online, “Broken Trust.” Fascinating storytelling as well as an account of how things work in Hawaii. 

I’m Keli’i Akina on ThinkTech Hawaii’s Hawaii Together. Until next time, aloha.

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Related: Hawaii Ethics and Audit Function at Lowest Level in Years