SB2107

SECTION 1. Chapter 28, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§28- Special counsel; appointment. (a) The attorney general may appoint a special counsel pursuant to this section when the attorney general determines that:

(1) An investigation of a person or matter is warranted;

(2) The investigation or prosecution of, or any other legal or administrative action against that person or matter by the department may present a conflict of interest for the department; and

(3) Under the circumstances, it would be in the public interest to appoint an outside special counsel to assume responsibility for the matter.

(b) When matters are brought to the attention of the attorney general that may warrant consideration of appointment of a special counsel, the attorney general may:

(1) Appoint a special counsel;

(2) Direct that an initial investigation consisting of factual inquiries or legal research as the attorney general deems appropriate be conducted to better inform the attorney general's decision; or

(3) Conclude that, under the circumstances of the matter, the public interest would not be served by removing the investigation from the normal processes of the department and that the appropriate division of the department should handle the matter; provided that if the attorney general reaches this conclusion, the attorney general shall take appropriate steps to mitigate any conflicts of interest, including recusal of the attorney general or particular deputy attorney generals.

(1) Be a lawyer with a reputation for integrity and impartial decision-making ability and appropriate experience to ensure that the investigation will be conducted ably, expeditiously, and thoroughly, and that investigative and legal decisions will be supported by an informed understanding of the law and department policies;

(2) Be selected from outside the state government; and

(3) Agree that their responsibilities as special counsel shall take first priority in their professional lives and that it may be necessary to devote their full time to the investigation depending on its complexity and stage.

(d) The attorney general shall consult with the administrative services manager of the department to ensure an appropriate method of appointment and that the special counsel undergoes an appropriate background investigation and detailed review of ethics and conflicts of interest issues.

(e) The attorney general shall establish the jurisdiction of a special counsel and provide the special counsel with a specific factual statement of the matter to be investigated; provided that the jurisdiction of a special counsel:

(1) Shall include the authority to investigate and prosecute crimes committed in the course of, and with intent to interfere with, the special counsel's investigation, including perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses, and to conduct appeals arising out of the matter being investigated or prosecuted; and

(2) May include civil or administrative authority, which shall be specifically granted by the attorney general.

If the special counsel concludes during the investigation that additional jurisdiction is necessary to fully investigate and resolve the matters assigned or to investigate new matters that have become known, the special counsel shall consult with the attorney general, who shall determine whether to include the additional matters within the special counsel's jurisdiction or assign them elsewhere.

If the special counsel concludes during the investigation that administrative remedies, civil sanctions, or other governmental action outside the criminal justice system might be appropriate, the special counsel shall consult with the attorney general with respect to the appropriate division of the department to take any necessary action.

(f) All personnel in the department shall cooperate with the special counsel to the fullest extent possible, and the department shall:

(1) Provide the special counsel with the names, resumes, and other pertinent information of appropriate personnel available to assist the special counsel;

(2) Provide the special counsel with the resumes and other pertinent information of specific personnel requested by the special counsel;

(3) Make reasonable efforts to assign department employees and other personnel selected by the special counsel to assist the special counsel; and

(4) Hire or assign additional personnel or contract with persons outside of the department as needed, without regard to chapter 103D.

The special counsel shall assign the duties and supervise the work of assigned personnel and contracted persons while they are assigned to the special counsel.

(g) A special counsel shall exercise within the scope of their jurisdiction, the full power and independent authority of the attorney general or any deputy attorney general to perform all investigative and prosecutorial functions and determine whether and to what extent to inform or consult with the attorney general or others within the department regarding the conduct of their duties and responsibilities. A special counsel shall not be subject to the day-to-day supervision of any official of the department; provided that:

(1) A special counsel shall comply with the rules, procedures, practices, and policies of the department and consult with appropriate divisions within the department for guidance with respect to established rules, practices, policies, and procedures, including ethics and security rules and procedures; provided further that a special counsel may consult directly with the attorney general when the special counsel concludes that the extraordinary circumstances of any particular decision would render compliance with required departmental procedures inappropriate;

(2) The attorney general may request that a special counsel provide an explanation for any investigative or prosecutorial step, and after review, conclude that the action is so inappropriate or unwarranted under established departmental practices that it should not be pursued; provided further that in conducting the review, the attorney general shall give great weight to the views of the special counsel and if the attorney general concludes that a proposed action by the special counsel should not be pursued, report to the legislature as specified in subsection (j);

(3) A special counsel and staff shall be subject to disciplinary action for misconduct and breach of ethical duties pursuant to the same standards and extent as other employees of the department, and inquiries into these matters shall be handled through the appropriate division of the department upon the approval of the attorney general; and

(4) A special counsel may be disciplined or removed from office only by the attorney general for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of departmental policies; provided further that the attorney general shall inform the special counsel in writing of the specific reason for the disciplinary action or removal.

(h) The department shall provide the special counsel with all appropriate resources; provided that the special counsel shall:

(1) Develop a proposed budget for review and approval by the attorney general within a time-period agreed upon by the special counsel and the department following the special counsel's appointment; and

(2) Report to the attorney general the status of the investigation with a budget request pursuant to a schedule agreed upon by the special counsel and the department.

(i) The special counsel shall provide the attorney general with a confidential report at the conclusion of the investigation with the findings and explanation of the conclusions and decisions reached by the special counsel.

(j) The attorney general shall submit a report to the legislature, which shall include an explanation, upon each of the following actions:

(1) The appointment of a special counsel;

(2) The removal of any special counsel; and

(3) The conclusion of the special counsel's investigation,

including, to the extent consistent with applicable law, a description and explanation of instances, if any, in which the attorney general concluded that a proposed action by a special counsel was so inappropriate or unwarranted under established departmental practices that it should not be pursued; provided that the attorney general may toll the notification period in this subsection upon a finding that legitimate investigative or privacy concerns require confidentiality until the confidentiality is no longer needed.

(k) The attorney general may release the reports in subsection (j) to the public if the attorney general determines that the release would be in the public interest; provided that the release complies with applicable legal restrictions.

All other releases of information by any department employee, including the special counsel and staff, concerning matters handled by special counsels shall be governed by the generally applicable departmental guidelines concerning public comment with respect to investigations and relevant law.

(l) In cases in which the attorney general is recused, the responsibilities of the attorney general in this section shall be performed by the first deputy attorney general.

(m) No private right of action at law shall arise pursuant to this section.

(n) For purposes of this section:

"Department" means the department of the attorney general.

"Conflict of interest" includes instances in which the subject of an investigation pursuant to section 28-2.5 includes the state government or any public officer or public employee for whom the attorney general or the department is required to provide services under the law.

"State government" means any department, board, bureau, commission, division, office, council, or agency of the State, a public benefit corporation, or public authority having at least one member appointed by the governor."

SECTION 2. Section 28-2.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The attorney general shall investigate alleged violations of the law when directed to do so by the governor, or when the attorney general determines that an investigation would be in the public interest[.]; provided that the attorney general may appoint a special counsel pursuant to section 28- to assume the attorney general's powers and responsibilities over the investigation if the attorney general determines that the investigation would present a conflict of interest for the attorney general or the department of the attorney general. For the purposes of this subsection, "conflict of interest" has the same meaning as defined in section 28- ."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2107
THIRTY-SECOND LEGISLATURE, 2024
STATE OF HAWAII