Report Title:

Public schools; BOE; DOE; Public lands; Asset management

Description:

Establishes the authority of the Board of Education and Department of Education to own and administer all lands under Hawaii's public schools.

HOUSE OF REPRESENTATIVES

H.B. NO.

3088

TWENTY-THIRD LEGISLATURE, 2006

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to asset management.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The purpose of this Act is to establish the authority of the board of education and department of education to own and administer all of the lands under Hawaii's public schools. Accordingly, this Act transfers all public lands used for public school facilities to the department of education. This Act also empowers the board of education and department of education to acquire, sell, lease, transfer, hypothecate, develop, and enter into agreements for the improvement of lands under its control for the support of the public schools.

SECTION 2. Chapter 302A, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART   . ASSET MANAGEMENT

§302A-A Legislative findings. The legislature finds that section 5(f) of the Admissions Act provides that public lands and the proceeds and income therefrom shall be held as a public trust and managed and disposed of for purposes including but not limited to support of the public schools. The legislature also finds that article X, section 3, of the State Constitution establishes that "the board of education shall have the power, as provided by law, to formulate policy and to exercise control over the public school system." The legislature further finds that under article XI, section 5, of the State Constitution, "legislative power over the lands owned by or under the control of the State and its political subdivisions shall be exercised only by general laws." Therefore, the legislature believes that public lands appropriately classified by the department of land and natural resources and used for public school facilities should be transferred to the department of education, with the approval of the board of land and natural resources and the board of education, for purposes and in a manner consistent with the State Constitution.

The purpose of this chapter is to ensure the most productive use of public lands classified or set aside by the department of land and natural resources for public school facilities by allowing these lands to be transferred to and managed by the department of education.

§302A-B Definitions. As used in this part, unless the context otherwise requires:

"Board" means the board of education as defined in section 302A-101.

"Department" means the department of education as defined in section 302A-101.

"Public schools" has the same meaning as in section 302A-101.

"Public school facilities" has the same meaning as in section 302A-1506.

§302A-C Transfer and management of public school lands and related facilities to the department of education. (a) Upon mutual agreement and approval of the board and the board of land and natural resources:

(1) The department may accept the transfer of and manage certain qualifying public school lands; and

(2) Certain assets, including position counts, related to the management of existing encumbered and unencumbered public school lands and related facilities shall be transferred to the department.

(b) The department shall administer a program to manage the transferred public school lands under rules adopted by the board pursuant to chapter 91. The transfer of public school lands shall be done in a manner to be determined by the board and may include more than one parcel; provided that these parcels are geographically adjacent to one another.

(c) For any public school lands to be transferred to the department that are not being used or required for the public purpose stated, the order setting aside the lands shall be withdrawn and the lands shall be returned to the department of land and natural resources.

§302A-D Conversion of qualified and encumbered public school lands. The department shall establish criteria and rules pursuant to chapter 91 and subject to approval by the board to convert qualified and encumbered public school lands to department leases or other forms of encumbrance.

§302A-E Extension of public school lands encumbered by permit and transferred to and managed by the department. Notwithstanding chapter 171, the board shall establish criteria and rules to allow the cancellation, renegotiation, and extension of transferred encumbrances by the department. Notwithstanding any law to the contrary, leases of encumbered public school lands transferred to the department shall not have their respective length of term or rents reduced over the remaining fixed term of the leases.

§302A-F Rules. The board shall adopt rules pursuant to chapter 91 to effectuate the purposes of this part.

§302A-G Aquisition, use, and disposition of property. (a) The board may acquire any real or personal property or interest therein by purchase, exchange, gift, grant, lease, or other means from any person or government to provide sites for public school facilities. Exchange of real property shall be in accordance with section 171-50.

(b) The board may own or hold real property. All real property owned or held by the board shall be exempt from mechanics' or materialmen's liens and also from levy and sale by virtue of an execution, and no execution or other judicial process shall issue against the same nor shall any judgment against the board be a charge or lien upon its real property; provided that this subsection shall not apply to or limit the right of obligees to foreclose or otherwise enforce any mortgage of the board or the right of obligees to pursue any remedies for the enforcement of any pledge or lien given by the board on its rents, fees, or revenues. The board and its property shall be exempt from all taxes and assessments.

(c) The board may lease or rent all or a portion of any public school site and establish and revise the rents or charges therefor. The board may sell, exchange, transfer, assign, or pledge any property, real or personal, or any interest therein to any person or government.

(d) The board may insure or provide for the insurance of its property or operations against risks as it deems advisable.

§302A-H Development of property. (a) The board, in its own behalf or on behalf of any government, may:

(1) Clear, improve, and rehabilitate property;

(2) Plan, develop, construct, and finance public school projects; and

(3) In cooperation with the housing and community development corporation of Hawaii and the department of accounting and general services, plan educational facilities and related infrastructure as a necessary and integral part of public housing projects using all its innovative powers towards achieving that end expeditiously and economically; provided that the educational facilities comply with the department's educational specifications, timelines, and siting requirements.

(b) The board may develop public land in an agricultural district subject to the prior approval of the land use commission, when developing lands greater than five acres in size, and public land in a conservation district subject to the prior approval of the board of land and natural resources. The board shall not develop state monuments, historical sites, or parks. When the board proposes to develop public land, it shall file with the department of land and natural resources a petition setting forth such purpose. The petition shall be conclusive proof that the intended use is a public use superior to that which the land has been appropriated.

(c) The board may develop or assist in the development of federal lands with the approval of appropriate federal authorities.

(d) The board shall not develop any public land where the development may:

(1) Endanger the receipt of any federal grant;

(2) Impair the eligibility of any public body for a federal grant;

(3) Prevent the participation of the federal government in any government program; or

(4) Impair any covenant between the government and the holder of any bond issued by the government.

§302A-I Development of property; additional powers. Notwithstanding any provision to the contrary, whenever the bids submitted for any public school development or rehabilitation project exceed the amount of funds available for that project, the board, with the approval of the governor, may disregard the bids and enter into an agreement to carry out the project, or undertake the project or participate in the project under the agreement; provided that the total cost of the agreement and the board's participation, if any, shall not exceed the amount of funds available for the project; and provided further that if the agreement is with a non-bidder, the scope of the project under agreement shall remain the same as that for which bids were originally requested.

§302A-J Eminent domain, exchange or use of public property. (a) The board may acquire any real property, including fixtures and improvements, or interest therein:

(1) Through voluntary negotiation;

(2) Through exchange of land in accordance with section 171-50; provided that the public land to be exchanged need not be of like use to that of the private land; or

(3) By the exercise of the power of eminent domain which it deems necessary by the adoption of a resolution declaring that the acquisition of the property described therein is in the public interest and required for public use.

(b) The board shall exercise the power of eminent domain granted by this section in the same manner and procedure as is provided by chapter 101, and otherwise in accordance with all applicable provisions of the general laws of the State; provided that condemnation of parcels greater than fifteen acres shall be subject to legislative disapproval expressed in a concurrent resolution adopted by majority vote of the senate and the house of representatives in the first regular or special session following the date of condemnation. No award of compensation shall be increased by reason of any increase in the value of real property caused by the designation of a public school facility site, or the actual or proposed acquisition, use, or disposition of any other real property by the board.

(c) The board may acquire by the exercise of the power of eminent domain property already devoted to a public use; provided that no property belonging to any government may be acquired without its consent, and that no property belonging to a public utility corporation may be acquired without the approval of the public utilities commission, and subject to legislative disapproval expressed in a concurrent resolution adopted by majority vote of the senate and the house of representatives in the first regular or special session following the date of condemnation. Such property shall not thereafter be taken for any other public use without the consent of the board.

§302A-K Use of public lands; acquisition of state lands. (a) Chapter 171 to the contrary notwithstanding, the governor may transfer lands located within a public school facility project area to the board for its use.

(b) If state lands under the control and management of other public agencies are required by the board for its purposes, the agency having the control and management of those required lands, upon request by the board and with the approval of the governor, shall lease the lands to the board upon such terms and conditions as may be agreed to by the parties.

(c) Subsection (b) to the contrary notwithstanding, no public lands shall be leased to the board if the lease would impair any covenant between the State or any county, or any department or board thereof, and the holders of bonds issued by the State or the county, department, or board.

§302A-L Public works contracts. The board may make, execute, and carry out contracts for, or in connection with, any public school facility project in the manner provided in chapter 103D and section 103-53. With regard to contracts entered into as prescribed in this section, the term "officers", as used in chapter 103D, shall mean the department or officer authorized by the department to act as its contracting officer. Unless made and executed in the name of the State, each contract made and executed as authorized in this section shall state therein that it is so made and executed.

§302A-M Quitclaim deeds. Unless otherwise provided by law, the board shall issue quitclaim deeds and leases whenever it conveys, transfers, sells, or assigns any property developed, constructed, or sponsored under this chapter.

§302A-N Acquisition of real property from a county. Any provision of law or charter to the contrary notwithstanding, any county, by resolution of its local governing body, may, without public auction, sealed bids, or public notice, sell, lease for a term not exceeding sixty-five years, grant or convey to the board any real property owned by it which the board certifies to be necessary for its purposes. The sale, lease, grant, or conveyance shall be made with or without consideration and upon such terms and conditions as may be agreed upon by the county and the board. Certification shall be evidenced by a formal request from the board. Before the sale, lease, grant, or conveyance may be made to the board, a public hearing shall be held by the governing body of the county to consider the same. Notice of the hearing shall be published at least ten days before the date set for the hearing in such publication and in such manner as may be designated by such governing body.

§302A-O Sale or lease of public school sites. (a) The board may, without recourse to public auction, sell, or lease for a term not exceeding sixty-five years, all or any portion of the real or personal property constituting a public school facility to any person, upon such terms and conditions as may be approved by the board, if the board finds that the sale or lease is in conformity with the six-year program and financial plan.

(b) In the case of public school redevelopment projects, the terms of the sale shall provide for the repurchase of the property by the board at its option, in the event that the purchaser, if other than a state agency, desires to sell the property within ten years; provided that this requirement may be waived by the board if the authority determines that a waiver will not be contrary to the purpose of this part. The board shall establish at the time of original sale a formula setting forth a basis for a repurchase price based on market considerations including but not limited to interest rates, land values, construction costs, and federal tax laws.

(c) If the purchaser of a public school site is a state agency, the authority may include as a term of the sale a provision for the repurchase of the property in conformance with this section.

§302A-P Public land trust. All funds derived from the sale or lease or other disposition of public school lands shall be appropriated by the laws of the State; provided that all proceeds and income from the sale, lease, or other disposition of lands ceded to the United States by the Republic of Hawaii under the joint resolution of annexation, approved July 7, 1898 (30 Stat. 750), or acquired in exchange for lands so ceded, and returned to the State of Hawaii by virtue of section 5(b) of the Act of March 18, 1959 (73 Stat. 6), and all proceeds and income from the sale, lease, or other disposition of lands retained by the United States under sections 5(c) and 5(d) of the Act and later conveyed to the State under section 5(e) shall be held as a public trust for the support of the public schools."

SECTION 3. Section 171-2, Hawaii Revised Statutes, is amended to read as follows:

"§171-2 Definition of public lands. "Public lands" means all lands or interest therein in the State classed as government or crown lands previous to August 15, 1895, or acquired or reserved by the government upon or subsequent to that date by purchase, exchange, escheat, or the exercise of the right of eminent domain, or in any other manner; including accreted lands not otherwise awarded, submerged lands, and lands beneath tidal waters which are suitable for reclamation, together with reclaimed lands which have been given the status of public lands under this chapter, except:

(1) Lands designated in section 203 of the Hawaiian Homes Commission Act, 1920, as amended;

(2) Lands set aside pursuant to law for the use of the United States;

(3) Lands being used for roads and streets;

(4) Lands to which the United States relinquished the absolute fee and ownership under section 91 of the Hawaiian Organic Act prior to the admission of Hawaii as a state of the United States unless subsequently placed under the control of the board of land and natural resources and given the status of public lands in accordance with the State Constitution, the Hawaiian Homes Commission Act, 1920, as amended, or other laws;

(5) Lands to which the University of Hawaii holds title;

(6) Lands to which the housing and community development corporation of Hawaii in its corporate capacity holds title;

(7) Lands to which the Hawaii community development authority in its corporate capacity holds title;

(8) Lands to which the department of agriculture holds title by way of foreclosure, voluntary surrender, or otherwise, to recover moneys loaned or to recover debts otherwise owed the department under chapter 167;

(9) Lands which are set aside by the governor to the Aloha Tower development corporation; lands leased to the Aloha Tower development corporation by any department or agency of the State; or lands to which the Aloha Tower development corporation holds title in its corporate capacity;

(10) Lands which are set aside by the governor to the agribusiness development corporation; lands leased to the agribusiness development corporation by any department or agency of the State; or lands to which the agribusiness development corporation in its corporate capacity holds title; [and]

(11) Lands to which the high technology development corporation in its corporate capacity holds title[.]; and

(12) Lands to which the department of education holds title."

SECTION 4. Section 302A-1111, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Under policies established by the board, the superintendent shall be designated as the chief executive officer of the public school system having jurisdiction over the internal organization, operation, and management of the public school system, as provided by law[;], including but not limited to the acquisition, ownership, development, management, and disposition of public lands for public schools, and shall administer programs of education and public instruction throughout the State, including education at the preschool, primary, and secondary school levels, and such other programs as may be established by law."

SECTION 5. Section 302A-1128, Hawaii Revised Statutes, is amended to read as follows:

"§302A-1128 Department powers and duties. (a) The department shall have entire charge and control and be responsible for the conduct of all affairs pertaining to public instruction, including operating and maintaining the capital improvement and repair and maintenance programs for department and school facilities. The department may establish and maintain schools for secular instruction at such places and for such terms as in its discretion it may deem advisable and the funds at its disposal may permit. The schools may include high schools, kindergarten schools, schools or classes for pregrade education, boarding schools, Hawaiian language medium education schools, and evening and day schools. The department may also maintain classes for technical and other instruction in any school where there may not be pupils sufficient in number to justify the establishment of separate schools for these purposes.

(b) The department shall regulate the courses of study to be pursued in all grades of public schools and classify them by methods the department deems proper; provided that:

(1) The course of study and instruction shall be regulated in accordance with the statewide performance standards established under section 302A-201;

(2) All pupils shall be progressively competent in the use of computer technology; and

(3) The course of study and instruction for the first twelve grades shall provide opportunities for all students to develop competency in a language in addition to English.

The department shall develop statewide educational policies and guidelines based on this subsection without regard to chapter 91.

For the purposes of this subsection, the terms "progressively competent in the use of computer technology" and "competency in a language in addition to English" shall be defined by policies adopted by the board. The board shall formulate statewide educational policies allowing the superintendent to exempt certain students from the requirements of paragraphs (2) and (3) without regard to chapter 91.

(c) Nothing in this section shall interfere with those persons attending a summer school.

(d) The department shall have entire charge and control and be responsible for the acquisition, ownership, development, management, and disposition of public lands for public schools, and for the construction, operation, maintenance, and repair of public school facilities."

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 7. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 8. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 10. This Act shall take effect upon its approval.

INTRODUCED BY:

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