The University of Hawaii contract with an executive search firm retained to help hire a new UH president blocks public scrutiny of the hiring process and sidesteps the state’s open records law.

The contract and the way it was carried out obscures much of the work conducted by the executive search firm, WittKieffer, as it advised the UH Board of Regents on hiring one of Hawaii’s most important public employees.

A special condition in an addendum to the contract makes “any candidate information” the “exclusive property” of WittKieffer.

In addition, to fulfill several contract requirements, WittKieffer presented reports and updates to the regents orally, leaving no documentation of its work.

Brian Black, executive director of the Public First Law Center, said the special condition raises significant concerns about transparency.

“UH is going out of its way to hide the information,” Black said. “There’s no way (for the regents) to even ask WittKieffer to back up what it’s telling them.”

In October, WittKieffer, which has been paid at least $148,000 under the contract, presented the regents with candidates for the president’s job. The regents ultimately selected Wendy Hensel, the provost at City University of New York, and agreed to pay her $675,000 per year plus a $7,000 a month housing stipend.

Correction: An earlier version of this story said WittKieffer presented the regents with finalists for the job. According to UH, it was the regents who selected the two finalists from a list of candidates presented by the search firm.

She had been accused of discrimination at least four times, including in two lawsuits — material that WittKieffer should have turned up and shared with the regents. But the regents and WittKieffer have declined to discuss the hiring process with Civil Beat.

Now, in a response to a Civil Beat public records request for material the search firm was required to produce under its contract, UH says most of the information given to the board was either presented verbally or the documents are in the hands of WittKieffer.

‘A Long, Long Way From Best Practices’

UH’s 21-page contract lays out numerous tasks WittKieffer was required to do.  

The firm was supposed to submit interim reports on its search, produce a “leadership history evaluation” of each finalist and develop recommendations on each of the finalists brought to campus.

But UH said it couldn’t provide any documentation showing what, if anything, WittKieffer did to fulfill those specific tasks. In response to a public records request from Civil Beat, UH spokesman Dan Meisenzahl said no such records exist because “verbal reports were made.”

In some cases, WittKieffer didn’t present information to UH at all. 

For example, the contract required WittKieffer to conduct a “board review” including “institutional strengths and challenges that includes an organizational assessment that defines what the institution needs now and will need in the years ahead.”

The contract also anticipated interviews with regents to get their vision for the university and the president, as well as documents laying out the current university system and challenges it faces.

But WittKieffer didn’t give any kind of board review or documents to the Board of Regents, according to UH. And there are no records of any interviews with the regents or others.

“No report was provided to the BOR; this is what WittKieffer was expected to do in finding candidates that the BOR was looking for and in developing the profile of the President,” Meisenzahl said.

UPDATE: After this story was published Meisenzahl said WittKieffer produced a “president leadership profile” which satisfied the board review section of the contract.

“Section 1.A. did not require a written report but that doesn’t mean that WittKieffer didn’t do all of the things articulated in the contract,” he said in an email Friday.

WittKieffer was also supposed to do “Candidate Due Diligence,” including media and public record checks and screening “for prior allegations of harassment and discrimination.”

UH said it doesn’t have anything to show WittKeiffer did that work, either.

“There are no such materials maintained by UH, as this was done by WittKieffer and not provided to UH for its records,” Meisenzahl said.

The matter raises questions about the extent to which public agencies can stifle accountability by outsourcing government functions to private entities not subject to open records laws.

Judith Wilde studies the hiring of high-level university administrators as a research professor at George Mason University. She said WittKieffer should have documented reporting the contract required it to do. 

“You have no way of knowing whether they did any of the work they claim to have done,” Wilde said. “And that is a long, long way from best practices.”

Zachary Smith, the WittKieffer executive in charge of UH’s search, didn’t respond to an interview request from Civil Beat.

But in a statement sent through Meisenzahl at UH, WittKieffer said: “In all searches we conduct, we maintain the highest standards of due diligence in vetting candidates and conduct each executive search assignment according to industry best practices, including those established by our professional association, The Association of Executive Search and Leadership Consultants (AESC). All finalist candidates for the UH presidency were vetted according to these standards.”

Contract Departed From Prior UH Search Agreements

A special provision attached at the end of the UH contract with WittKieffer shields from public view all candidate information WittKieffer gathered but didn’t present in writing to UH. And the firm presented very little information in writing, according to Meisenzahl’s email.

Under “general conditions” the contract says the university has “complete ownership of all reports, plans, evaluations, applications, resume data, and related material, both finished and unfinished, which are received, developed, prepared, assembled, or conceived” by WittKieffer. In addition, the contract requires WittKieffer to give everything to UH upon completion of the contract.

But a “special condition” at the end of the contract carves out a large exception.

It says WittKieffer’s “internal notes and work papers, and any candidate information shall remain the exclusive property of the Contractor.” 

That’s a departure from previous contracts the university has had with WittKieffer, which has worked on searches for UH for more than a decade. For example, in 2022 UH paid WittKieffer $86,750 to find a new dean for UH’s Nancy Atmospera-Walch School of Nursing. Like previous contracts between UH and WittKieffer, the nursing school contract gave WittKieffer ownership of its “internal notes and work papers.” But it didn’t hand over to WittKieffer “any candidate information,” as the 2024 contract does.

Two Federal Discrimination Suits Name Hensel

The contract makes it impossible to know what information WittKieffer discovered through its candidate background checks and what the firm passed on to the Board of Regents before the board selected Hensel to succeed David Lassner as UH president.

Civil Beat has previously reported on accusations by a law professor at Georgia State University, where Hensel was provost before going to CUNY, as well as a grievance filed by a business professor at CUNY last year. Hensel and the regents have insisted that no formal allegations have ever been filed that include Hensel.  

“The fact remains that there have been no formal allegations, complaints or lawsuits regarding discrimination or harassment brought against Ms. Hensel at Georgia State (with over 5,000 employees),” Board of Regents Chair Gabe Lee wrote in November. “Furthermore, there is no filed or adjudicated complaint of discrimination or harassment against Ms. Hensel personally at Georgia State.”

Since then, two federal discrimination suits naming Hensel have surfaced. 

Provided copies of the suits, which were filed in U.S. District Court in Atlanta and subsequently settled, Meisenzahl said the regents had been aware of one of the suits and subsequently determined the second one was “not relevant to the Board’s decision.” 

WittKieffer also says it did a good job with the search.

“We stand by our due diligence conducted regarding President Hensel as a candidate, which found no past instances of her engaging in discrimination or harassment, and included media checks, reference checks, interviews, and harassment and discrimination inquiries,” the company said in a statement. 

But, as the Public First Law Center’s Black notes, there are no public records showing WittKieffer performed some of the work it was required to do under the contract. And the special condition in the contract even precludes UH from asking for that material.

“There’s just nothing,” Black said. “If you were to wait five years and say, ‘How did we hire this person?’ there wouldn’t be anything” showing how.

One solution, he said, would be to tighten Hawaii’s public records law so public agencies can’t block access to public information by outsourcing functions to private contractors. 

According to the Council of State Governments, as of April open records statutes in 19 states included provisions for non-governmental entities. Some use functional guidelines, such as whether the private contractor is performing work normally done by the government.

In other instances, state courts have defined certain private contractors as public entities for open records purposes, the council reported. Hawaii is among the states where the courts and lawmakers haven’t stepped in.

The result, Black said, is there’s no way for the public to see how the Board of Regents came to choose Hensel over other candidates.

“All we know,” he said. “is the outcome.”

Read the UH contract with WittKieffer:

Read UH’s response to Civil Beat’s public records request for contract materials: