Bill Text: HI SB891 | 2021 | Regular Session | Amended
Bill Title: Relating To The Hawaiian Homes Commission Act.
Spectrum: Moderate Partisan Bill (Democrat 6-1)
Status: (Engrossed - Dead) 2021-03-24 - Passed Second Reading as amended in HD 1 and referred to the committee(s) on FIN with Representative(s) Okimoto voting aye with reservations; none voting no (0) and Representative(s) Quinlan excused (1). [SB891 Detail]
Download: Hawaii-2021-SB891-Amended.html
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THE SENATE |
S.B. NO. |
891 |
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THIRTY-FIRST LEGISLATURE, 2021 |
S.D. 2 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO THE HAWAIIAN HOMES COMMISSION ACT.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The Hawaiian Homes Commission Act, 1920, as amended, is amended by adding a new section to title 2 to be appropriately designated and to read as follows:
"§ .
Beneficiary consultations; applications; standards. (a)
A beneficiary consultation conducted pursuant to this section shall be a
meaningful and timely consultation with beneficiaries and shall promote trust,
partnership, and civic engagement. The
type of consultation conducted, whether comprehensive, place-based, or ad hoc,
shall be appropriate to the potential impact of the relevant decision or action
described in this section.
(b) A comprehensive consultation shall be
conducted with respect to:
(1) The preparation and amendment of the department's general plan, which shall establish statewide polices that guide land management and programs;
(2) The preparation and amendment of any program plan, which shall inform or carry out general plan statewide policies for specific functional areas, including affordable housing, native Hawaiian development, energy, disaster preparedness, community resiliency, agriculture, and water resources; and
(3) The adoption of rules.
A
comprehensive consultation shall occur on a statewide basis. Notice shall be provided to all existing
homesteaders, all native Hawaiians who have applied for leases of homestead
lands and are waiting to be awarded leases, and other native Hawaiians who have
registered with the department. The
notice shall describe the proposed action and the date, time, and place of a
public meeting to be held on each island.
(c) A place-based consultation shall be conducted
with respect to:
(1) The preparation and amendment of any island
plan, which shall be prepared for each island in which there are more than one
hundred acres of Hawaiian home lands, and which, at minimum, shall apply
criteria to identify lands for homestead use and non-homestead use, prioritize
development or redevelopment, identify infrastructure requirements, and identify
potential impacts on department land use and infrastructure;
(2) The preparation and amendment of any
regional plan, which, within a region, at minimum, shall plan to build a sense
of community and capacity, stimulate partnerships for development and
improvements, facilitate beneficiary participation in issues and areas of concern,
and identify priority projects within existing and planned homestead areas;
(3) The preparation and amendment of any area
development plan, which, at minimum, shall provide more detail for specific
projects in an island plan for purposes of establishing feasibility, budget,
and schedule; and
(4) Proposed projects that require an
environmental assessment or environmental impact statement.
A
place-based consultation shall occur within the applicable geographic
area. Notice shall be provided to all existing
homesteaders, all native Hawaiians who have applied for leases of homestead
lands and are waiting to be awarded leases, and other native Hawaiians who have
registered with the department; provided that they are associated with the
geographic area impacted by the proposed action. The chairperson shall determine the
appropriate scope of the notice. The
notice shall describe the proposed action and the date, time, and place of a
public meeting to be held within the geographic area.
(d) An ad hoc consultation may be conducted for
the preparation and amendment of any plan or implementing action described in
this section. The chairperson may form
an advisory body, subject to consultation and ratification by the commission,
that provides input to the department for the preparation or amendment of any
plan or implementation of an action. Any
ad hoc consultation for the preparation and amendment of plans may supplement,
but not replace, any comprehensive or place-based consultation required by this
section. The chairperson may select an
ad hoc body for an implementing action."
SECTION 2. Section 202, Hawaiian Homes Commission Act, 1920, as amended, is amended to read as follows:
"§202. Department officers, staff, commission,
members, compensation[.]; quarterly reports; inter-agency council. (a)
There shall be a department of Hawaiian home lands, which shall
be headed by an executive board to be known as the Hawaiian homes commission. The members of the commission shall be
nominated and appointed in accordance with section 26‑34, Hawaii Revised
Statutes. The commission shall be
composed of nine members, as follows:
three shall be residents of the city and county of Honolulu; two shall
be residents of the county of Hawaii, one of whom shall be a resident of
east Hawaii and the other a resident of west Hawaii; two shall be residents of
the county of Maui, one of whom shall be a resident from the island of Molokai;
one shall be a resident of the county of Kauai; and the ninth member shall be
the [chairman] chairperson of the Hawaiian homes commission. All members shall have been residents of the
State at least three years prior to their appointment and at least [four]
five of the members shall be descendants of not less than one-fourth
part of the blood of the races inhabiting the Hawaiian Islands previous to 1778[.]
or beneficiaries of the trust; provided that the beneficiary members shall
be on the waitlist for Hawaiian home lands at the time of their appointment.
The members of the commission shall serve
without pay, but shall receive actual expenses incurred by them in the
discharge of their duties as [such] members. The governor shall appoint the [chairman]
chairperson of the commission from among the commission members [thereof].
The commission may delegate to the [chairman
such] chairperson any duties, powers, and authority, or so
much thereof, as may be lawful or proper for the performance of the functions
vested in the commission. The [chairman]
chairperson of the commission shall serve in a full-time capacity. [He shall, in such] In that capacity,
the chairperson shall perform [such] duties[,] and
exercise [such] powers and authority, or so much thereof, as may be
delegated to [him] the chairperson by the commission as herein
provided above.
(b)
The provisions of section 76-16, Hawaii Revised Statutes, shall apply to
the positions of first deputy and private secretary to the [chairman] chairperson
of the commission. The department may hire
temporary staff on a contractual basis not subject to chapters 76 and 78, Hawaii
Revised Statutes, when the services to be performed will assist in carrying out
the purposes of the Act. These positions
may be funded through appropriations for capital improvement program projects
and by the administration account, operating fund, or native Hawaiian
rehabilitation fund. No contract shall be
for a period longer than two years, but individuals hired under contract may be
employed for a maximum of six years; provided that the six-year limitation
shall not apply if the department, with the approval of the governor, determines
that [such] these contract individuals are needed to provide critical
services for the efficient functioning of the department. All other positions in the department shall
be subject to chapter 76, Hawaii Revised Statutes.
All vacant and new civil service positions covered by chapter 76, Hawaii Revised Statutes, shall be filled in accordance with section 76-22.5, Hawaii Revised Statutes; provided that the provisions of these sections shall be applicable first to qualified persons of Hawaiian extraction.
(c) The department shall distribute by email or its
website a quarterly report to the beneficiaries, registered homestead associations,
and the legislature. The report shall identify
each land disposition and lease cancellation, including:
(1) The land instrument used;
(2) The amount of land, under which section of the
Act the disposition or cancellation is authorized; and
(3) Whether the disposition or cancellation was
made on behalf of a beneficiary or non-beneficiary.
The quarterly report shall also identify all trust
fund receipts and expenditures.
(d) The commission may recommend that the governor establish an inter-agency council to address the purposes of this Act. The recommendation may address council membership and other specifics regarding the council. The governor may establish the inter-agency council based on the commission's recommendation. The inter-agency council, if established, shall meet at least three times per year."
SECTION 3. Section 213.6, Hawaiian Homes Commission Act, 1920, as amended, is amended to read as follows:
"§213.6.
Hawaiian home lands trust fund. There is established a trust fund to be known
as the Hawaiian home lands trust fund, into which shall be deposited all appropriations
by the state legislature specified to be deposited therein. Moneys of the Hawaiian home lands trust fund
shall be expended by the department, as provided by law, upon approval by the
commission and shall be used for capital improvements and other purposes
undertaken in furtherance of the Act.
The department shall have a fiduciary responsibility toward the trust
fund and shall provide annual reports therefor to the legislature and to the
beneficiaries of the trust. Each annual
report shall include a full accounting of all Act 14, Special Session Laws of Hawaii
1995, funding receipts and expenditures.
The commission may deposit moneys from the trust fund into depositories other than the state treasury and may manage, invest, and reinvest moneys in the trust fund. The commission may hold, purchase, sell, assign, transfer, or dispose of any securities and investments in which any of the moneys have been invested, as well as the proceeds of the investments. Moneys from the trust fund that are deposited into depositories other than the state treasury shall be exempt from the requirements of chapters 36 and 38. Any interest or other earnings arising out of investments from the trust fund shall be credited to and deposited into the trust fund."
SECTION 4. Section 216, Hawaiian Homes Commission Act, 1920, as amended, is amended to read as follows:
"§216.
Insurance by borrowers; acceleration of loans; lien and enforcement
thereof[.]; loan servicing manual; requirements. (a)
The department may require the borrower to insure, in such amount as the
department may prescribe, any livestock, aquaculture stock, swine, poultry,
fowl, machinery, equipment, dwellings, and permanent improvements purchased or
constructed out of any moneys loaned or assured by the department; or, in lieu
thereof, the department may directly take out such insurance and add the cost
thereof to the amount of principal payable under the loan.
(b) Whenever the department has reason to believe
that the borrower has violated any condition enumerated in paragraph (2), (4),
(5), or (6) of section 215 of this Act, the department shall give due notice
and afford opportunity for a hearing to the borrower or the successor or
successors to his interest, as the case demands. If upon such hearing the department finds
that the borrower has violated the condition, the department may declare all
principal and interest of the loan immediately due and payable notwithstanding
any provision in the contract of loan to the contrary[.], subject to the
policies and procedures provided in the loan servicing manual developed pursuant
to subsection (e).
(c) The department shall have a first lien upon
the borrower's or lessee's interest in any lease, growing crops, aquacultural
stock, either on his tract or share in any collective contract or program,
livestock, swine, poultry, fowl, aquaculture stock, machinery, and equipment
purchased with moneys loaned by the department, and in any dwellings or other
permanent improvements on any leasehold tract, to the amount of all principal
and interest due and unpaid and of all taxes and insurance and improvements
paid by the department, and any other indebtedness of the borrower, the payment
of which has been assured by the department.
Such lien shall have priority over any other obligation for which the
property subject to the lien may be security.
(d) The department [may], subject to this
Act and procedures established by rule, may enforce any lien by
declaring the borrower's interest in the property subject to the lien to be
forfeited, any lease held by the borrower canceled, and shall thereupon order
such leasehold premises vacated and the property subject to the lien
surrendered within a reasonable time.
The right to the use and occupancy of the Hawaiian home lands contained
in such lease shall thereupon revest in the department, and the department may
take possession of the premises covered therein and the improvements and
growing crops or improvements and aquaculture stock thereon; provided that the
department shall pay to the borrower any difference which may be due him after
the appraisal provided for in section 209 has been made.
(e) The department shall develop and implement a loan
servicing manual, subject to approval by the commission, that adopts loan mitigation
policies, procedure, and methods, including financial counseling, loan loss mitigation
analysis, loan modification, sale or transfer, and other options to ensure lessees
and borrowers, or their successors, avoid default, cure delinquencies, and avoid
cancellation or foreclosure; provided that the loan servicing manual shall incorporate
all appropriate federal rules and regulations, including those that protect active
military service members; provided further that the department shall document all
loan loss mitigation activities between the borrower and the department pursuant
to the loan servicing manual."
SECTION 5. Section 222, Hawaiian Homes Commission Act, 1920, as amended, is amended by amending subsection (a) to read as follows:
"(a) The department may make [such]
expenditures and shall adopt rules in accordance with chapter 91, Hawaii
Revised Statutes, as are necessary for the efficient execution of the functions
vested in the department by this Act.
All expenditures of the department and all moneys necessary for loans
made by the department, in accordance with [the provisions of] this Act,
shall be allowed and paid upon the presentation of itemized vouchers approved
by the [chairman] chairperson of the commission or the [chairman's]
chairperson's designated representative.
The department shall make an annual report to the legislature of the State
upon the first day of each regular session and [such] any special
reports as the legislature may from time to time require. The [chairman] chairperson and
members of the commission shall give bond as required by law. The sureties upon the bond and the conditions
thereof shall be approved annually by the governor."
SECTION 6. Section 228 of the Hawaiian Homes Commission Act, 1920, as amended, is amended by amending subsection (b) to read as follows:
"(b) Prior to the disposition of available land through a request for proposals for an initial lease for a commercial or multipurpose project, the department shall consult with beneficiaries of the trust in the master planning of the available lands. The process of beneficiary consultation shall be as established by the department and shall:
(1) Engage beneficiaries and beneficiary-serving organizations;
(2) Provide for the timely
dissemination of information about the proposed project and the gathering of
input; [and]
(3) Allow for a
reasonable time and reasonable access to relevant information for evaluation
and consideration[.]; and
(4) Comply with section , to the extent applicable."
SECTION 7. Section 28-8.3, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) No department of the
State other than the attorney general may employ or retain any attorney, by
contract or otherwise, for the purpose of representing the State or the department
in any litigation, rendering legal counsel to the department, or drafting legal
documents for the department; provided that the foregoing provision shall not
apply to the employment or retention of attorneys:
(1) By the public utilities commission, the labor
and industrial relations appeals board, and the Hawaii labor relations board;
(2) By any court or judicial or legislative office
of the State; provided that if the attorney general is requested to provide
representation to a court or judicial office by the chief justice or the chief
justice's designee, or to a legislative office by the speaker of the house of
representatives and the president of the senate jointly, and the attorney general
declines to provide such representation on the grounds of conflict of interest,
the attorney general shall retain an attorney for the court, judicial, or legislative
office, subject to approval by the court, judicial, or legislative office;
(3) By the legislative reference bureau;
(4) By any compilation commission that may be
constituted from time to time;
(5) By the real estate commission for any action involving
the real estate recovery fund;
(6) By the contractors license board for any action
involving the contractors recovery fund;
(7) By the office of Hawaiian affairs;
(8) By the department of commerce and consumer
affairs for the enforcement of violations of chapters 480 and 485A;
(9) As grand jury counsel;
(10) By the Hawaii health systems corporation, or
its regional system boards, or any of their facilities;
(11) By the auditor;
(12) By the office of ombudsman;
(13) By the insurance division;
(14) By the University of Hawaii;
(15) By the Kahoolawe island reserve commission;
(16) By the division of consumer advocacy;
(17) By the office of elections;
(18) By the campaign spending commission;
(19) By the Hawaii tourism authority, as provided
in section 201B-2.5;
(20) By the division of financial institutions;
(21) By the office of information practices; [or]
(22) By the department of Hawaiian home lands; provided
that:
(A) The
department of Hawaiian home lands may use the services of the attorney general from
time to time when the interests of the State and the department of Hawaiian home
lands are aligned; and
(B) Legal
fees owed to independent counsel shall be paid by the State; or
[(22)] (23) By a department, if the attorney general, for
reasons deemed by the attorney general to be good and sufficient, declines to employ
or retain an attorney for a department; provided that the governor waives the
provision of this section."
2. By amending subsection (c) to read:
"(c) Every attorney employed by
any department on a full-time basis, except an attorney employed by the public
utilities commission, the labor and industrial relations appeals board, the
Hawaii labor relations board, the office of Hawaiian affairs, the Hawaii health
systems corporation or its regional system boards, the department of commerce
and consumer affairs in prosecution of consumer complaints, insurance division,
the division of consumer advocacy, the University of Hawaii, the Hawaii tourism
authority as provided in section 201B-2.5, the office of information practices,
or the department of Hawaiian home lands, or as grand jury counsel,
shall be a deputy attorney general."
SECTION 8. (a) The legislative reference bureau shall conduct a study on the potential consequences of creating a position for the director of Hawaiian home lands that is separate from the chairperson of the Hawaiian homes commission. In conducting the study, the bureau shall assume that:
(1) The governor shall appoint the director of Hawaiian home lands under section 26-17, Hawaii Revised Statutes;
(2) The director of Hawaiian home lands would be a member of the Hawaiian homes commission;
(3) The director of Hawaiian home lands would not be eligible to be considered as the chairperson of the Hawaiian homes commission;
(4) The members of the Hawaiian homes commission shall choose the chairperson amongst their own members; and
(5) The director of Hawaiian home lands would have the authority to veto major policy and budgetary decisions of the Hawaiian homes commission with written justification.
(b) The study shall consider the effectiveness, cost, potential conflicts of interests (such as in contested case hearings), and other issues that may arise from the proposed change in the governance structure of the department of Hawaiian home lands.
(c)
The legislative reference bureau shall submit a report of its
findings and recommendations, including any proposed legislation, to the
legislature no later than twenty days prior to the convening of the regular
session of 2022.
SECTION 9. Any sitting Hawaiian homes commission member whose term of office has not expired on the effective date of this Act and who does not qualify to be a member of the Hawaiian homes commission under the amendments made by this Act may continue to serve on the commission until that member's term expires.
SECTION 10. The provisions of the amendments made by this Act to the Hawaiian Homes Commission Act, 1920, as amended, are declared to be severable, and if any section, sentence, clause, or phrase, or the application thereof to any person or circumstances is held ineffective because there is a requirement of having the consent of the United States to take effect, then that portion only shall take effect upon the granting of consent by the United States and effectiveness of the remainder of these amendments or the application thereof shall not be affected.
SECTION 11. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 12. This Act shall take effect on July 1, 2050.
Report Title:
Hawaiian Homes Commission Act; Beneficiaries; Department of Hawaiian Home Lands; Inter-agency Council; Legal Counsel
Description:
Establishes requirements for Hawaiian home lands beneficiary consultation. Requires that a majority of the members of the Hawaiian homes commission be beneficiaries or on the waitlist for Hawaiian homestead lands. Requires quarterly reporting to the legislature and beneficiaries on land dispositions made during the quarter. Authorizes the governor to establish an inter-agency council, based on a recommendation from the Hawaiian homes commission. Requires an annual accounting of Act 14, Special Session Laws of Hawaii 1995, expenditures. Requires the department of Hawaiian home lands to develop and implement a loan servicing manual. Allows the Hawaiian homes commission to retain separate counsel from the attorney general to provide service to the commission and beneficiaries. Requires the legislative reference bureau to conduct a study on the potential effects of creating a position for the director of Hawaiian home lands that is separate from the chairperson of the Hawaiian homes commission. Effective 7/1/2050. (SD2)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
