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THE SENATE |
S.B. NO. |
2475 |
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THIRTY-SECOND LEGISLATURE, 2024 |
S.D. 2 |
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STATE OF HAWAII |
H.D. 1 |
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A BILL FOR AN ACT
RELATING TO EDUCATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
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. (HD1)
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