Bill Text: HI HB2043 | 2024 | Regular Session | Amended
Bill Title: Relating To Education.
Spectrum: Partisan Bill (Democrat 24-0)
Status: (Engrossed - Dead) 2024-03-07 - Referred to EDU/LBT, WAM/JDC. [HB2043 Detail]
Download: Hawaii-2024-HB2043-Amended.html
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
2043 |
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THIRTY-SECOND LEGISLATURE, 2024 |
H.D. 3 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO EDUCATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that Hawaii's preschools and K-12 schools have increasingly served as safe havens for individuals who aim to exploit their positions at schools to carry out acts that harm children, violating the trust inherent in those positions. Recent investigations and reports indicate that offenses, including but not limited to sexual abuse, physical assault, and other forms of harassment, have been committed against students on various public and private preschools and K-12 campuses throughout the State. The school personnel involved in these offenses often seek to continue their reign of harming children by taking advantage of the inability of educational institutions to effectively share information with each other.
The legislature further finds that all too often, based on real or perceived legal restrictions, schools fail to provide vital information to one another to consider in rendering of their decisions. This lack of communication allows contact with students to these perpetrators and creates a revolving door for the perpetrators at preschools and K-12 schools in the State.
The legislature recognizes that it is essential to prevent the presence of these individuals on any preschool and K-12 campus and from serving in any capacity that requires interaction with or close proximity to students. Action is required to preserve the safety of both private and public preschools and K-12 campuses and bolster protections for students from harm.
The purpose of this Act is to create a registry for all preschools and K-12 educational institutions within the State that contains information on school employees, contractors, or volunteers for whom, as a result of an investigation, a final finding has been issued that the individual has inflicted harm on a student, with the goal of preventing those individuals from subsequently gaining employment in any other public or private preschools and K-12 institutions in Hawaii.
SECTION 2. Chapter 302A, Hawaii Revised Statutes, is amended by adding a new section to part IV, subpart B, to be appropriately designated and to read as follows:
"§302A- Harm
to students registry; requirements; due process; immunity. (a) The department shall establish
a harm to students registry, which shall be a compilation of employees found to
have inflicted harm on a student in the State.
The harm to students registry shall contain the full and legal name of
the person, including any prior names used, such as maiden name or married
names; date of birth; photograph; last known address; and the name of the
reporting institution.
(b) An
institution shall certify to the department that any employee name and information
transmitted to the department for inclusion on the harm to students registry
has been afforded appropriate due process, as set forth in this section.
(c) An
institution shall certify that there is a final finding, including the date of
the institution's final finding, resulting from the institution's investigation
into whether the institution's employee engaged in acts or omissions that
resulted in the infliction of harm to a student, notwithstanding whether the
employee was terminated, retired, resigned, or was banned from the school
pending completion of the investigation.
Each institution shall complete its investigation without regard to the
employment status of the employee under investigation or the status of the employee's
future involvement with the institution.
(d)
For purposes of this section, in order for an employee's name to be
placed on the harm to students registry, the investigation conducted by an
institution that rendered a final finding of infliction of harm to a student
shall involve, at a minimum:
(1) An investigator
who was not a party or witness in the investigation and does not report to a
complaining party or accused party;
(2) An opportunity
for the complaining party and accused party to provide information to the
investigator regarding the alleged misconduct or other circumstances that
caused initiation of the investigation;
(3) Representation
for the accused party if required by law or any applicable collective
bargaining agreement; provided that the department shall not provide
representation for an accused party that does not belong to a bargaining unit
that is not entitled to representation pursuant to a collective bargaining
agreement;
(4) Consideration
of the information provided by all parties and witnesses who participated in
the investigation; and
(5) Reasoned
findings based on the information gathered that support the conclusion, to at
least a preponderance of the evidence, that the accused party inflicted harm on
a student.
(e) An institution shall certify that the
employee whose name is transmitted to the department for inclusion on the harm
to students registry was given prior written notice of the institution's
decision to transmit the employee's name for such purpose, that the employee
was given the opportunity to appeal the decision, and that the employee either
waived the right to appeal or lost the appeal, before the employee's name and
other information is transmitted to the department. The department shall rely on an institution's
certification that the employee was provided due process in accordance with
this section.
(f)
Any institution in the State shall share the existence of any employee
investigations that include allegations of infliction of harm to a student,
including ongoing investigations, when requested by another institution.
(g) An
institution that provides information or an opinion about an employee's job
performance to a prospective employer institution is presumed to be acting in
good faith and shall have qualified immunity from civil or criminal liability
for disclosing the information and for the consequences of the disclosure.
(h) The
good faith presumption under subsection (g) shall be rebuttable upon a showing
by a preponderance of the evidence that the information or opinion disclosed
was:
(1) Knowingly
false; or
(2) Knowingly
misleading.
(i) Nothing
in subsections (g) and (h) shall affect the rights, obligations, remedies,
liabilities, or standards of proof under chapters 89, 92F, 368, and 378.
(j)
The harm to students registry shall be made accessible to any
institution within the State.
(k)
Any institution certifying the inclusion of an employee on the harm to
students registry shall defend and indemnify the department from any liability
resulting from any claim or cause of action relating to the employee's
inclusion on the harm to students registry.
(l) As
part of the procedures followed pursuant to section 302A-601.5, the department
shall consult the harm to students registry to determine whether a candidate
for employment is listed on the harm to students registry.
(m) The
department shall consult the harm to students registry before authorizing a
volunteer's assistance in a role that involves the volunteer's interaction with
or within close proximity to a student or students.
(n) If
a candidate for employment or a potential volunteer's name is listed on the
harm to students registry, the department shall cease to consider the candidate
for employment or shall prohibit the volunteer's assistance in a role that
involves interaction with or within close proximity to a student or students.
(o) The
harm to students registry shall be exempt from disclosure under chapter 92F.
"Employee"
means all individuals currently or formerly employed by the institution,
contractors, and volunteers of an institution.
"Final
finding" means the conclusion of an institution's investigation that
results in a determination by the institution.
"Harm
to students registry" means a list of employees and any related documents
compiled by the department that any institution certifies and transmits to the
department.
"Inflicted
harm on a student" or "infliction of harm on a student" means
the act of subjecting a student to abusive acts or sexual exploitation, whether
with, to, or in the presence of a student, including but not limited to any
sexual act; any solicitation of a sexual act, whether written, visual, verbal,
or physical; any inappropriate sexual contact or conduct, whether written,
visual, verbal, or physical; any act of child abuse; any intentional
solicitation, encouragement, or consummation of a romantic or physical
relationship, which includes dating a student; or any acts of abuse or
violence, including but not limited to assault, torture, or physical punishment
or restraint that results in serious bodily injury.
"Institution"
means any educational institution that services students in early learning
programs or schools, and from kindergarten through twelfth grade within the
State.
"Investigation" means any fact finding by an institution relating to an accusation of infliction of harm on a student that meets the requirements of subsection (d)."
SECTION 3. Chapter 302C, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
(b) A private school shall certify that the
employee whose name and information is transmitted to the department for
inclusion on the harm to students registry was given prior written notice of
the private school's decision to transmit the employee's name and information
for such purpose and the employee was given the opportunity to appeal the
decision before the transmission of the employee's name and information
occurs. The department shall rely on the
certification of the private school that the employee was provided due process
in accordance with this section.
(c) All private schools shall consult the harm to
students registry to determine whether a candidate for employment at their
school is listed on the harm to students registry.
(d) Private schools shall consult the harm to
students registry before authorizing a volunteer's assistance in a role that
involves the volunteer's interaction with or within close proximity to a
student or students.
(e) If a candidate for employment or a potential
volunteer's name is listed on the harm to students registry, the private school
shall cease to consider the candidate for employment or shall prohibit the
volunteer's assistance in a role that involves interaction with or within close
proximity to a student or students.
(f) All private schools shall share the existence
of any employee investigations that include allegations of infliction of harm
to a student, including ongoing investigations, when requested by another
institution.
(g) A private school that provides information or
opinion about an employee's job performance to a prospective employer
institution is presumed to be acting in good faith and shall have qualified
immunity from civil or criminal liability for disclosing the information and
for the consequences of the disclosure.
(h) The good faith presumption under subsection
(g) shall be rebuttable upon a showing by a preponderance of the evidence that
the information or opinion disclosed was:
(1) Knowingly false; or
(2) Knowingly misleading.
(i) Nothing in subsections (g) and (h) shall
affect the rights, obligations, remedies, liabilities, or standards of proof
under chapters 89, 92F, 368, and 378.
(j) A private school certifying the inclusion of
an employee on the harm to students registry shall defend and indemnify the
department from any liability resulting from any claim or cause of action
relating to the employee's inclusion on the harm to students registry.
(k) As used in this section:
"Department"
means the department of education.
"Employee"
has the same meaning as in section 302A- (p).
"Final
finding" has the same meaning as in section 302A- (p).
"Harm
to students registry" means a list of persons and any related documents
compiled by the department of education that any institution certifies and
transmits to the department for inclusion on the harm to students registry.
"Inflicted
harm on a student" or "infliction of harm on a student" has the
same meaning as in section 302A- (p).
"Institution"
has the same meaning as in section 302A- (p).
"Investigation"
has the same meaning as in section 302A- (p)."
SECTION 4. Chapter 302D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§302D- Investigation of misconduct; reporting to
the department of education; harm to students registry; due process; indemnity. (a)
Pursuant to the requirements of section 302A- , a
public charter school shall certify to the department any final finding
resulting from the public charter school's investigation that an employee
inflicted harm on a student, notwithstanding whether the employee was
terminated, retired, resigned, or was banned from the school pending completion
of the investigation. Each public
charter school shall complete its investigation without regard to the status of
employment of the individual under investigation or the status of the
individual's future involvement with the institution.
(b) A public charter school shall certify that
the employee whose name and information is transmitted to the department for
inclusion on the harm to students registry was given prior written notice of
the public charter school's decision to transmit the employee's name and information
for such purpose and the employee was given the opportunity to appeal the
decision before the transmission of the employee's name and information
occurs. The department shall rely on the
certification of the public charter school that the employee was provided due
process in accordance with this section.
(c) All public charter schools shall consult the
harm to students registry to determine whether a candidate for employment at
their school is listed on the harm to students registry.
(d) Public charter schools shall consult the harm
to students registry before authorizing a volunteer's assistance in a role that
involves the volunteer's interaction with or within close proximity to a
student or students.
(e) If a candidate for employment or a potential
volunteer's name is listed on the harm to students registry, the public charter
school shall cease to consider the candidate for employment or shall prohibit
the volunteer's assistance in a role that involves interaction with or within
close proximity to a student or students.
(f) All public charter schools shall share the
existence of any employee investigations that include allegations of infliction
of harm to a student, including ongoing investigations, when requested by
another institution.
(g) A public charter school that provides
information or opinion about an employee's job performance to a prospective
employer institution is presumed to be acting in good faith and shall have
qualified immunity from civil or criminal liability for disclosing the
information and for the consequences of the disclosure.
(h) The good faith presumption under subsection
(g) shall be rebuttable upon a showing by a preponderance of the evidence that
the information or opinion disclosed was:
(1) Knowingly
false; or
(2) Knowingly
misleading.
(i) Nothing in subsections (g) and (h) shall
affect the rights, obligations, remedies, liabilities, or standards of proof
under chapters 89, 92F, 368, and 378.
(j) Any public charter school certifying the inclusion
of an employee on the harm to students registry shall defend and indemnify the
department from any liability resulting from any claim or cause of action
relating to the employee's inclusion on the harm to students registry.
(k) As used in this section:
"Department" means
department of education.
"Employee" has the same
meaning as in section 302A- (p).
"Final finding" has the
same meaning as in section 302A- (p).
"Harm to students
registry" means a list of persons and any related documents compiled by
the department that any institution certifies and transmits to the department
for inclusion on the harm to students registry.
"Inflicted harm on a
student" or "infliction of harm on a student" has the same
meaning as in section 302A- (p).
"Institution" has the
same meaning as in section 302A- (p).
"Investigation" has the same meaning as in section 302A- (p)."
SECTION 5. Chapter 302L, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§302L- Investigation of misconduct; reporting to
the department of education; harm to students registry; due process; indemnity. (a)
Pursuant to the requirements of section 302A- , any
early learning program or school shall certify to the department of education
any final finding resulting from the early learning program or school's
investigation that an employee inflicted harm on a student, notwithstanding
whether the employee was terminated, retired, resigned, or was banned from the program
or school pending completion of the investigation. Each early learning program and school shall
complete its investigation without regard to the status of employment of the
individual under investigation or status of the individual's future involvement
with the institution.
(b) An early learning program or school shall
certify that the employee whose name and information is transmitted to the
department for inclusion on the harm to students registry was given prior
written notice of the early learning program or school's decision to transmit
the employee's name and information for such purpose and the employee was given
the opportunity to appeal the decision before the transmission of the
employee's name and information occurs.
The department shall rely on the certification of the early learning
program or school that the employee was provided due process in accordance with
this section.
(c) All early learning programs and schools shall
consult the harm to students registry to determine whether a candidate for
employment at their program or school is listed on the harm to students
registry.
(d) Early learning programs and schools shall
consult the harm to students registry before authorizing a volunteer's
assistance in a role that involves the volunteer's interaction with or within
close proximity to a student or students.
(e) If a candidate for employment or a potential
volunteer's name is listed on the harm to students registry, the early learning
program or school shall cease to consider the candidate for employment or shall
prohibit the volunteer's assistance in a role that involves interaction with or
within close proximity to a student or students.
(f) All early learning programs and schools shall
share the existence of any employee investigations that include allegations of
infliction of harm to a student, including ongoing investigations, when
requested by another institution.
(g) An early learning program or school that
provides information or opinion about an employee's job performance to a
prospective employer institution is presumed to be acting in good faith and
shall have qualified immunity from civil or criminal liability for disclosing
the information and for the consequences of the disclosure.
(h) The good faith presumption under subsection
(g) shall be rebuttable upon a showing by a preponderance of the evidence that
the information or opinion disclosed was:
(1) Knowingly
false; or
(2) Knowingly
misleading.
(i) Nothing in subsections (g) and (h) shall
affect the rights, obligations, remedies, liabilities, or standards of proof
under chapters 89, 92F, 368, and 378.
(j) Any early learning program or school
certifying the inclusion of an employee on the harm to students registry shall
defend and indemnify the department from any liability resulting from any claim
or cause of action relating to the employee's inclusion on the harm to students
registry.
(k) As used in this section:
"Department" means the
department of education.
"Employee" has the same
meaning as in section 302A- (p).
"Final finding" has the
same meaning as in section 302A- (p).
"Harm to students
registry" means a list of persons and any documents compiled by the
department that any institution certifies and transmits to the department for
inclusion on the harm to students registry.
"Inflicted harm on a
student" or "infliction of harm on a student" has the same
meaning as in section 302A- (p).
"Institution" has the
same meaning as in section 302A- (p).
"Investigation" has the same meaning as in section 302A- (p)."
SECTION 6. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2024-2025 for the establishment of full-time equivalent ( FTE) permanent positions within the department of education to manage the harm to students registry and carry out any other requirements pursuant to this Act.
The sum appropriated shall be expended by the department of education for the purposes of this Act.
SECTION 7. In accordance with section 9 of article VII of the Hawaii State Constitution and sections 37‑91 and 37‑93, Hawaii Revised Statutes, the legislature has determined that the appropriations contained in H.B. No. , will cause the state general fund expenditure ceiling for fiscal year 2024‑2025 to be exceeded by $ or per cent. In addition, the appropriation contained in this Act will cause the general fund expenditure ceiling for fiscal year 2024‑2025 to be further exceeded by $ or per cent. The combined total amount of general fund appropriations contained in only these two Acts will cause the state general fund expenditure ceiling for fiscal year 2024‑2025 to be exceeded by $ or per cent. The reasons for exceeding the general fund expenditure ceiling are that:
(1) The appropriation made in this Act is necessary to serve the public interest; and
(2) The appropriation made in this Act meets the needs addressed by this Act.
SECTION 8. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 9. New statutory material is underscored.
SECTION 10. This Act shall take effect on July 1, 3000.
Report Title:
Department of Education; Private Schools; Charter Schools; Prekindergarten Programs and Schools; Harm to Students Registry; Appropriation; Expenditure Ceiling
Description:
Establishes a harm to students registry for all early learning programs or schools and K-12 educational institutions within the State that contains information on school employees, contractors, or volunteers for whom, as result of an investigation, a final finding has been issued that the individual has inflicted harm on a student. Appropriates funds. Effective 7/1/3000. (HD3)
The summary description
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not legislation or evidence of legislative intent.
