Editor’s note: Civil Beat reporters and editors met Thursday with five of the seven members who served on the recently ended State Salary Commission: Chair Colleen Hanabusa, Vice Chair Wes Machida and commissioners Susan Arnett, Pankaj Bhanot and Margery Bronster.

The commissioners explained their reasons for voting earlier this month to award pay raises ranging from 35% to 48% over the next six years for top state executives, lawmakers and judges. The raises automatically take effect July 1 unless both the House and Senate vote to reject them during the session that concludes May 2. Pay increases for legislators would not go into effect until 2027.

The interview was edited for length and clarity and an eye toward future reporting. Hanabusa began by explaining the context for the commission’s work.

Hanabusa: The Salary Commission was created by constitutional amendment, which was passed in 2006, and the first commission, I believe, was formed in 2007. What made this commission different was the fact that prior to this time, what people may not have known is that there were two other salary commissions. One was for judicial and one was for legislative. We never had an executive branch salary commission.

I was judiciary chair (at the time), and (Chief Justice) Ronald Moon came to see me, and he says, “You’ve got to include judiciary with this group, because if you don’t, you and the Legislature are going to probably OK everyone else’s (pay raises) and you’re going to kill ours.”

And just by way of background, when I first got elected, there was this thing about the judiciary having pay raises. There was a judge that I really respected who left Hawaiʻi because of salary, and his name was Dan Healy. So Dan Healy came to see me and said, “I can’t do it anymore. I can’t raise my family on the salary, so I’m just going to leave Hawaiʻi.” And we had members of the Legislature who just would not approve judicial pay raises. I don’t know why, but they just wouldn’t do it.

So in 2006 we did join all three branches of government (under the salary commission). Since then, they’ve met three times. We’re the fourth one.

The thing that makes it interesting and different from, for example, the City Council (pay raises), is that the legislative branch is unable to take a pay raise until there’s an intervening election — the idea being that people will have a right to vote us out if they didn’t like the fact that we approved it.

This is not an approval process. This is a disapproval process. In other words, the Legislature must pass a resolution concurrently disapproving our report. They got to say, “Nah-nah, we’re not going to go with you guys.” And that’s going to determine whether or not there is a pay raise under the law. If it’s voted like that, there is no approval, they will have no pay raise (for six years) for the judiciary and executive and (eight years) for the Legislature.

The Attorney General’s Office has an opinion that says that you folks must dissolve (the commission). The statutory language that says you can come back a year after a (legislative) disapproval is invalid. Is that what you’re saying?

Bronster: Well, it’s worse than that. Although the law was passed saying that that we could come back in a year, the attorney general has issued a formal attorney general’s opinion saying that that is unconstitutional. And if you look at the Constitution, we agree that that is unconstitutional. So there is no mechanism for coming back in a year — unless there were another constitutional amendment. I mean, that’s how serious it is, that this is not something that can simply be adjusted.

So the Legislature itself can’t come back in a year and say, “Okay, we took the first level of raises, but we’re not going to do it again.”

Hanabusa: Well, you know, they did something similar during Covid, and we as a commission in our report have taken issue with that. We don’t believe that that was “constitutional.” And we actually had the attorney general’s representatives, and we kept saying, “Oh, you know, we don’t think this is possible.”

And they used every conceivable excuse. One was it’s moot. The second one was, “It’s not an issue that’s really ripe for discussion.” But it was all good intentions. It was Covid. Everyone wanted to say we shouldn’t have pay raises. We agree on the optics of it.

But then, when you also look at the optics of it, if you go back and look at the collectively bargained (employees), they didn’t necessarily lose pay. Matter of fact, teachers and UH professors were protected under the 2020 CARES Act. So it’s not necessarily true that no one else got (a raise), but we respectfully disagreed.

So your position now, though, is if they accept it, it goes forward as you laid it out, and they can’t change it for another six years.

Bronster: If they do nothing or have no vote at all, it becomes effective.

Arnett: See, we’re a very different group than a lot of the legislative groups or executive branch groups. We, like the Judicial Selection Commission, are a constitutional commission, so we’re not supposed to be subject to being regulated by either the Legislature or the executive branch. We have our very small little charge, and it’s to set these salaries, and then we go away, and if they are rejected, then there is no increase.

But if the Legislature was to say, “We’re going to do what we did before because of a new crisis,” and your argument is they can’t, they don’t have that power, who would step in and say, “OK, I hereby sue you.” You know what I mean?

Arnett: Well, I think practically the way it might come up is that if the Legislature decided that they didn’t want it, they would have to do it across the board, because they couldn’t do it only for themselves, right?

Bronster: The members of the executive branch, the members of the judiciary, would all have standing, I believe, to take that up. The members of the commission might have standing to take that up. There are a lot of places where it could be brought up.

Arnett: In the discussions for the judicial pay raise, we had statistics of the decrease in applications for judicial vacancies, the number of judges who are coming up for being eligible for retirement under the number of years and age, which is roughly a third of the judiciary. The fact that, for example, the position for the chief judge in Kona position has been vacant for over a year because they can’t get qualified applicants for it. And judiciary did not get a raise in 2019. If the raises this year are voted down, they will not have had a raise for 12 years by the time 2031 rolls around. And it’s going to have a huge negative effect on judges’ retention.

Machida: They did get a smaller raise, but it was less than 1%. It wasn’t a straight zero.

Bronster: It was pretty close.

Machida: When you look at it historically, too, I think it was between 12 and 14 years from 1993 that all three branches didn’t get any increases. For over half of that time period, they didn’t get any increases.

Hanabusa: The reason why Wes is so important to this commission is because no one understands, to me, the numbers the way Wes does. Remember, Wes was also head of the Employees’ Retirement System, and he sits on the Employer-Union Health Benefits Trust Fund board, plus he was chair of the Department of Budget and Finance for the state. So no one, in my opinion, has such a clear understanding of money and what it means in terms of pay and so forth.

And like Margery said, we were a very interesting commission, because we not only had Wes with that money experience, Margery of course a former attorney general, and we have Susan, she’s been a long-term public defender and they’re covered (by state benefits), and Pankaj and Cathy Betts (ran state agencies). And so they have a different kind of perspective on everything. And Beth Amaro was on the last commission. So she also had a different perspective.

We know the Judiciary’s position of what exactly wasn’t done last time. Beth’s commission was more interested in quote, unquote, leveling the playing field. So one of the things that Wes did was he really looked at all of the monies. We uniformly believe, because we put it into the report, that one of the most critical arguments that we have had is, look at the public sector unions, and we think what would be comparable would be probably Unit 13 of the Hawaiʻi Government Employees Association, which is all your technical, vocational and professional people. What Wes did was he went back historically, and you will find that the amount of pay raise Unit 13 got over the period of time exceeded all of the three branches. And that set the tone for everybody else.

Machida: My belief is that the previous commission tried to make sure everything was equalized over a longer period of time, and that’s why they did what they did back in the 2019 commission. It’s correct that, unfortunately, judges got less than 1% during that six-year period. But when you go back to the previous two commissions, it looks like they tried to equalize it so that there be more parity in the long run and in terms of the increases.

Bronster: And just to let you know, there was not full agreement on that point, in fact, there was a lot of spirited discussion. So there are some of some of us, and I’m only speaking for myself now, who believed that what the last commission did was not fair to judges, and it had a very adverse impact on the judiciary, because there was a serious feeling that the judges were not appreciated, and it was a huge problem for retention and recruitment. And I think that problem still exists today, and there was some effort to try and and fix that.

And even the Supreme Court (search) list has been extended. The Judicial Selection Commission did not get adequate applicants for the chief justice position, and so they had to repost it. And so they’re looking to try and get more people to come forward.

There’s this perception that perhaps you’re somewhat tone deaf to the idea that you’re making these pay increases at this time, given what’s going on. The economists say we’re not completely out of Covid. Here locally, we’re seeing what’s happening on the national front. How would you respond to that criticism that it’s too much too soon?

Hanabusa: The one thing I did learn from my stint in the Legislature is you don’t pass anything unless you have at least the majority agreeing with you. I can’t go around and say, “Hey, you know, we’re going to do this. And if you don’t do this, this is going to happen.”

As Margery says, we had extremely spirited discussions, and everyone participated in it, and it was really a matter of, “OK what do we want to see?” We had retention and recruitment as issues for the judiciary. We also had the same arguments raised for the executive branch. “What is it that makes people want to become department heads? What is it that’s motivating them all to do it? What is it that we want to see?”

But we also believe that public service was an important component for part of this. Doesn’t a legislator have the right to have a living wage? I’m taking the words from Susan — she always says they need a living wage. And as much as people like to think that the Legislature is not a full-time operation, if you were to compute all the days that the Legislature is in session, it’s probably more days than what the City Council puts in in a year. And in addition to that, for most of the legislators, this is their full-time gig.

Of course, each of us comes in with a different set of priorities. Well, who appointed us? Margery was appointed by the judiciary. Wes and I were appointed by the House. Pankaj and Cathy were appointed by the executive branch, and Susan and Beth were appointed by the Senate. So everyone kind of comes in knowing who your appointing authority is, and we are all advocating somewhat for our appointing authority.

Machida: I struggled with this, because you talk about the timing and the dollars and what’s happening currently, but when you look at it historically, too, almost every decade from the 1990s on, there’s either been a recession or something has occurred. This is an eight-year period for the Legislature, six years for the judiciary and six years for the executive. Do we wait?

“There was a serious feeling that the judges were not appreciated, and it was a huge problem for retention and recruitment. And there was some effort to try and and fix that.”

Margery Bronster

Because every year, every decade since the 1990s, in my opinion, something has happened where the budget was strained or something had occurred. You had the Maui fires, recently, Covid, you had recessionary periods over the last three decades or so. So the question I struggled with is, “Do we wait? And how long do we wait?”

Bronster: We can’t wait for a year or two. That’s not our choice.

Bhanot: And I think the other thing was, that there was a consensus on that as well, that we wanted to correct the base pay. I think there were too many disparities, and we wanted to correct that. And what we wanted to also make sure was that, once it’s corrected, we felt that in the first three years it will be corrected, and then the following three years for the executive and judiciary will follow inflation, which actually it came out to 4%, roughly the Consumer Price Index for all urban consumers. We compared it across the country as well in similar positions and found that, particularly in the judges’ cases, it was woefully at the lowest levels when you compare the judiciaries and other jurisdictions.

And same thing with the executive staff. There are no minimum qualifications. They are nominated and then they are actually confirmed by the Senate. You need very qualified people, and especially if you look at those with young children, salaries are not enough to survive in Hawaiʻi.

Arnett: I think that’s one of the hardest things to explain, is that we were looking at different factors for each of the three categories that we were responsible for coming up with a salary level for. But particularly, if you look at executive branch and particularly the judiciary — what we’re missing out on now because of the low salary for lawyers, is mid-level, people with 10 or 15 years’ experience who might then want to go into the judiciary. We have plenty of applicants who meet the minimum requirement of — I think it’s five years for District Court — and then we have some applicants who are toward the end of their career and have made their money, and maybe their kids are close to finishing high school or in college, and so they’re willing to take that. But the mid-level is sorely lacking.

And same thing with the executive branch, when you look at the budgets of these departments that they’re being asked to head, I was blown away. I’m probably the most naive person here, but it was shocking. And even I’m aware of the level of federal compliance required to hand out all those monies and be in charge of them.

So it’s not enough to say, “Let’s offer salaries at what the average person in Hawaiʻi makes. That would be fair.” Well, we wouldn’t get people with the training and experience to head the executive departments, and we wouldn’t get people who could be quality judges on the bench. So our rationale for that was, “Our citizens deserve the best, so let’s pay an amount that will draw these people to apply and gives us the opportunity to give them the best on the legislative side.”

I didn’t want people leaving the Legislature, as some have done, because they could not make enough money to support their families. I’m a big believer in public education. So what that they can’t send their kids to private school? But I also believe in each person’s right to get the education for their kids that they would like to. So I don’t think they should be eliminated from that possibility, especially if they live in certain geographic areas where the schools may not have as good statistics as schools in more affluent areas.

So it was a desire, and partly based on what we were asked to do by a group of legislators, to try to come closer to the average medium. We did pay a lot of attention to that and try to do that, but it really was a desire to give them a livable wage, so that people who might not consider running for the Legislature because it would not be enough to support their families, could now consider it.

As Colleen said, on the Senate side, it was over half who did not have employment outside of the Legislature. Some of them had spouses who were lawyers or worked for big firms and may have earned a larger paycheck doing that. But many of them, it was the family farm or whatever that the spouse worked on. So it’s not going to make up some large difference. It was a desire to deliver to our citizens the best people that we can in all these positions, and make it available to as many people as possible.

Let me focus for a second on legislative raises, because I think that’s kind of where you see most of the bitterness and the grumbling so far, at least. Did you as a group feel you provided them with a living wage? And if you did, does that mean it’s time to restrict their outside activities in some way, to say, “Hey, you want to be paid like a full-time legislator. Act like a full-time legislator.”

Hanabusa: You know, we actually almost hit it on the mark. I was surprised when (legislators) came forward, and it’s in our report, they actually came up with a figure very close to what we came up with.

Bronster: Today’s rate is $74,000. That will be the same rate next year. It will also be the same rate in the third year. So there’ll be three years of $74,000 and it’s not until 2027 that it goes up to $97,000.

And what’s the ending figure?

Bronster: $114,000.

Arnett: The question on the full-time Legislature, it got brought up, but we didn’t answer it because we weren’t essentially called upon to answer it. It’s a larger issue to look at, a full-time Legislature. What does that mean? Does that mean the actual sessions will be spread out over a year’s time? Will it still be concentrated in the four and a half months, etc.? So we didn’t say we’re giving this raise, and this should cover if they become formally a full-time Legislature.

Hanabusa: And according the National Conference of State Legislatures, when you look at it by an independent assessment, Hawaiʻi’s state Legislature is full time.

Machida: There are 10 states that they classify as full time, and Hawaiʻi is one of the 10. For myself, every time I wanted a meeting with a legislator off-session, I got one. I see them all the time off-session too. And a lot of time the bills, they don’t just start in January. There’s a lot of bill drafting that occurs earlier on, and there’s a lot of post-session occurrences.

Arnett: The task forces are during non-legislative session.

Bhanot: And a lot of the conversations, because (the Department of Human Services) invited both the money committees and the subject matter committees during fall, a couple of months after the session, after we settled with our budget and everything, to really talk about next legislative session as to our legislative priorities and also introduce them to the complexity of what we are dealing with and why we want to legislate certain things, and take them out on tours of our different facilities and have them meet with our staff. This is all happening between August and November. Then it starts to get busy during holiday season.

But I think what the public sees is that it’s crammed in to January to the first week in May. Everything gets thrown together in conference committees that are not public. There’s no time for people to figure out what’s going on. So I think at least for our purposes, when we think of full-time Legislature, we don’t really think about them meeting with you guys. We think, “Well, can’t the process just play out much more slowly so that there’s time for people to consider what’s happening? There’s more meetings on things, there’s more hearings on things.” Because they really do shut down from the public perspective in May. And maybe they’re meeting with folks in their districts or whatever, but that’s not doing the business.

Hanabusa: As somebody who’s watched how we’ve evolved over the years, you’re talking about the single largest budget in the state of Hawaiʻi. You’re talking about an entity that is the largest single employer with all its sub-parts and a budget of $20 billion now. You want people who are there who are going to challenge the system, raise issues and see whether we’re going in the right way. You’ve got to pay for that. I think it’s not unreasonable to say you want the best people.

Bronster: As we went through this whole process, we spent a lot more time than our predecessor commissions did trying to get information about a whole array of things, both brain drain from Hawaiʻi, cost of living, what the private sector pays, the equivalencies. We called on a lot of resources to try and give us that information. And one of the problems that we came up with was that there were a lot of questions that said, “Well, what about requiring full time in exchange for this? Or what about changing retirement in exchange for this?” And those were all things that we had no authority about, right? We may have opinions about things, but it doesn’t mean that we are charged with any of that.

And so I think as the Legislature goes forward, as the public goes forward, I think that’s something that they can look at and say, “This is what the salary commission did, and now we’re going to call upon the Legislature to do A, B or C, or the executive branch to do what they want.” But we were really stymied, because there’s a lot that we can’t touch.

But can you use your position as the salary commission in sort of a public relations way, and say, “We don’t have any authority to require the full-time legislature, but we really think you guys should do that.”

Bronster: I think each of us individually have the ability to do that, and that’s something that we’ve all talked about — things we’d like to see changed about the state. But in this little piece, we did what we felt was the way to go.

Should the Legislature hold public hearings on the pay raises, or do you see this outreach by the salary commission as a replacement for that?

Bronster: Well, let me just say, not only did we have outreach to a lot of different departments, a lot of different people, but we had public testimony, both written and oral testimony, at many of our hearings.

Machida: Written testimony was (from) over 135-plus (people).

Bronster: And it’s all either part of the report or available online. So there is a lot of public statements, and I will say that there were a lot of people who were against the pay raises that were being discussed. In fact, the earliest numbers that were discussed were significantly higher than the ending numbers. So I think that we did consider a lot of the public statements, but I also think that a lot of the public statements reflected some lack of understanding, because there was a suggestion that this was all happening in year one on day one, that we could just wait for a couple of years. “Why now?” was a question that a lot of people asked. We were stymied, and we were following the constitutional mandate that we had.

Bhanot: We did take into account a lot of the testimony that came up, and if you look at the first numbers that were published — that’s our on the site — what we eventually agreed on is ranging from 35% over six years to 42% over six years, 42% in the cases of Circuit Court judges.

Arnett: I’m sure there are some people who think we did not heed what they said, right? But that’s probably because what they said was either not correct or impossible to know and the testimony often was almost verbatim, from letter to letter, email to email, so they were getting their information from the same source. Their percentages were wrong as we went on.

But also they were like, “Why can’t you put this money toward teachers buying supplies for the classroom?” We have no ability to do that. And also, this is for 218 people’s salaries, and it is less than 1% of the state budget. So the ills that the letter writers thought could be addressed with this money, really, that would not be a sufficient amount of money to address what they were raising.

Bhanot: And they also thought that we were somehow a legislative committee appointed by the Legislature. It’s as if we are hearing a bill.

In fact, you’re a volunteer group.

Bhanot: Yes, unpaid.

“The one thing I did learn from my stint in the Legislature is you don’t pass anything unless you have at least the majority agreeing with you.”

Colleen Hanabusa

Do you think, irregardless of all the public testimony you took, should the Legislature hold public hearings on the salary increases?

Hanabusa: It’s up to them. They’ve got to offer a concurrent resolution to say that you should not take the pay raise or that our report should be declined. Technically, that’s what it is. And if there is no mechanism like that, there really is no public hearing.

But that’s been introduced, yeah? Republicans have introduced resolutions, concurrent resolutions, saying that the Legislature should decline the raises.

Hanabusa: Right.

In a recent essay for Civil Beat, Colin Moore from UH wrote that he was very respectful of you guys. He called you “an elite group of public sector officials,” but he said that he thought that you could have used the viewpoint of a private business person and/or a public employees union official. Do you think that the salary commission membership was diverse enough?

Bhanot: I think I’ll start with answering this. When I viewed the 2019 report where there was a business representation, but there was no representation from the exact people with executive experience. So this time, they corrected that, and Cathy and I got appointed with executive experience, and that was lacking. And now the concern is being raised about not having a union person and others. I think (that is) something to think about, because with the seven appointees you can have diversity, or increase the number.

Hanabusa: But I think if you’re going to dictate who should compose the salary commission, you would probably need at the very minimum have to consider whether you do it by constitutional amendment.
But at the same time that the constitutional amendment was passed (last time), there was what I call the enabling legislation. So there was an Hawaiʻi Revised Statute section. Arguably, there might be a room for that, but it would take a legislative act to in order to do that.

And then I’m not sure that the Legislature will do something like dictate who would be the right demographics to do that. I think they would probably just say, “Hey, I don’t want them telling me who to appoint, so I’m just going to appoint who I want, and the executive branch can appoint who they want, and the judiciary can appoint who they want.” Because what they’re looking for, I think, more than anything else is an advocate, especially the judiciary. I think when they appointed Margery, they were looking for an advocate, given the position that they were put in by the last (commission).

I don’t know if you guys have addressed this or not, but how would you split it so that the each of the executive, the legislative and the judicial branch would have separate commissions, so that it’s not all or nothing, like just to get the judges their money but not worry so much about all of them.

Bronster: I think the concern was that if the judiciary were split apart, then the Legislature — and there are many legislators who have a beef with the judiciary or have had beefs with the judiciary over the years — would simply reject it. It would make it too easy to reject it entirely. And so that was why the concept was, you know, put it together so that everybody sinks or swims together.

Arnett: It took the politics out of it a little bit.

Bronster: A little bit. But still, if you look at it, there are four appointees by the Legislature, two by the Senate and two by the House. So on our commission, the majority are legislative appointees.

Democratic majority, not minority party appointments, like they do for some of the other commissions, correct?

Hanabusa: Correct, but there are (five) lawyers on this one.

Bronster: But only one by the judiciary. If we did them separately, I think that that it would have been simply too easy for the Legislature to say, “We’re going to say no to the executive, or maybe yes to the executive, no to the judiciary.”

Hanabusa: Remember, that’s how we started, we started separately.