Report Title:

Public safety; ombudsman

 

Description:

Clarifies that the Office of Ombudsman has the authority to investigate acts of facilities with which the Department of Public Safety has contracted to hold individuals committed to the custody of the Director of Public Safety.

 


HOUSE OF REPRESENTATIVES

H.B. NO.

1440

TWENTY-FOURTH LEGISLATURE, 2007

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT


 

 

Relating to PUblic Safety.

 

 

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

 


     SECTION 1.  Section 96-1, Hawaii Revised Statutes, is amended by adding two new definitions to be appropriately inserted and to read as follows:

     ""Contracted facility" means any correctional facility or institution with which the department of public safety has contracted to hold persons committed to the custody of the director of public safety.

     "Serious bodily injury" means bodily injury that creates a substantial risk of death or causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."

     SECTION 2.  Section 96-5, Hawaii Revised Statutes, is amended to read as follows:

     "§96-5  Jurisdiction.  The ombudsman has jurisdiction to investigate the administrative acts of agencies, and the ombudsman may exercise the ombudsman's powers without regard to the finality of any administrative act.  The ombudsman also has jurisdiction to investigate the acts of any contracted facility and may exercise the ombudsman's power without regard to the finality of any act in question."

     SECTION 3.  Section 96-6, Hawaii Revised Statutes, is amended to read as follows:

     "§96-6  Investigation of complaints.  (a)  The ombudsman may investigate any complaint [which] that the ombudsman determines to be an appropriate subject for investigation under section 96-8.

     (b)  The ombudsman may investigate on the ombudsman's own motion if the ombudsman reasonably believes that an appropriate subject for investigation under section 96-8 exists.

     (c)  The ombudsman shall investigate any complaint submitted by:

     (1)  A person held in the custody of the department of public safety, including a person held at a contracted facility; or

     (2)  The family member of a person in paragraph (1).

     (d)  As used in this section, family member means a spouse, parent, child who is at least eighteen years old, grandparent, or sibling."

     SECTION 4.  Section 96-7, Hawaii Revised Statutes, is amended to read as follows:

     "§96-7  Notice to complainant and agency.  If the ombudsman decides not to investigate, [he] the ombudsman shall inform the complainant of that decision and shall state [his] the reasons.

     If the ombudsman decides to investigate, [he] the ombudsman shall notify the complainant of [his] the decision and [he] shall also notify the agency of [his] the intention to investigate.

     If the ombudsman decides to investigate a complaint against a contracted facility, the ombudsman shall notify the complainant of the decision and shall also notify the department of public safety.  The department of public safety shall be responsible for providing notice of the decision to the contracted facility."

     SECTION 5.  Section 96-8, Hawaii Revised Statutes, is amended to read as follows:

     "§96-8  Appropriate subjects for investigation.  (a)  An appropriate subject for investigation is an administrative act of an agency [which] or contracted facility that might be:

     (1)  Contrary to law;

     (2)  Unreasonable, unfair, oppressive, or unnecessarily discriminatory, even though in accordance with law;

     (3)  Based on a mistake of fact;

     (4)  Based on improper or irrelevant grounds;

     (5)  Unaccompanied by an adequate statement of reasons;

     (6)  Performed in an inefficient manner; or

     (7)  Otherwise erroneous.

     The ombudsman may investigate to find an appropriate remedy.

     (b)  The ombudsman shall investigate any incident where death or riot occurred in a correctional facility or where a person committed to the custody of the director of public safety, including a person held at a contracted facility, sustained serious bodily injury as a result of actions taken by an officer or employee of the department of public safety, an officer or employee of a contracted facility, or another person held in custody.

     (c)  The ombudsman may investigate to find an appropriate remedy."

     SECTION 6.  Section 96-9, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  In an investigation, the ombudsman may make inquiries and obtain information as the ombudsman thinks fit, enter without notice to inspect the premises of an agency, and hold private hearings.  The ombudsman may do the same with a contracted facility to the extent authorized by agreement between the State and the contracted facility."

     SECTION 7.  Section 96-11, Hawaii Revised Statutes, is amended to read as follows:

     "§96-11  Consultation with agency[.]; notice to the department of public safety.  (a)  Before giving any opinion or recommendation that is critical of an agency or person, the ombudsman shall consult with that agency or person.

     (b)  Before giving any opinion or recommendation from an investigation arising out of section 96-6(b) that is critical of the department of public safety or a contracted facility, the ombudsman shall provide notice to the department of public safety regarding the opinion or recommendation prior to making the opinion or recommendation available under section 96-13."

     SECTION 8.  Section 96-12, Hawaii Revised Statutes, is amended to read as follows:

     "§96-12  Procedure after investigation.  If, after investigation, the ombudsman finds that:

     (1)  A matter should be further considered by the agency;

     (2)  An administrative act should be modified or cancelled;

     (3)  A statute or regulation on which an administrative act is based should be altered;

     (4)  Reasons should be given for an administrative act; or

     (5)  Any other action should be taken by the agency[;] or contracted facility,

the ombudsman shall report the ombudsman's opinion and recommendations to the agency.

     If the investigation involved a contracted facility or officer or employee of a contracted facility, the ombudsman shall provide the opinion and recommendations to the department of public safety.  The department of public safety shall provide a copy of the opinion and recommendations to the contracted facility.

     The ombudsman may request the agency to notify the ombudsman, within a specified time, of any action taken on the ombudsman's recommendations.  For investigations involving a contracted facility or officer or employee of a contracted facility, the department of public safety shall be responsible for notifying the ombudsman within a specified time of any action taken by the department of public safety or the contracted facility pursuant to the ombudsman's recommendations."

     SECTION 9.  Section 96-13, Hawaii Revised Statutes, is amended to read as follows:

     "§96-13  Publication of recommendations.  After a reasonable time has elapsed, the ombudsman may present the ombudsman's opinion and recommendations to the governor, the legislature, the public, or any of these.  The ombudsman shall include with this opinion any reply made by the agency[.] or contracted facility."

     SECTION 10.  Section 96-14, Hawaii Revised Statutes, is amended to read as follows:

     "§96-14  Notice to the complainant.  After a reasonable time has elapsed, the ombudsman shall notify the complainant of the actions taken by the ombudsman and by the agency[.] or contracted facility."

     SECTION 11.  Section 96-15, Hawaii Revised Statutes, is amended to read as follows:

     "§96-15  Misconduct by agency or contracted facility personnel.  If the ombudsman has a reasonable basis to believe that there may be a breach of duty or misconduct by any officer or employee of an agency[,] or contracted facility, the ombudsman may refer the matter to the appropriate authorities without notice to that person."

     SECTION 12.  Section 96-18, Hawaii Revised Statutes, is amended to read as follows:

     "§96-18  Agencies may not open letters to ombudsman[.]; contracted facilities.  A letter to the ombudsman from a person held in custody by an agency shall be forwarded immediately, unopened, to the ombudsman.  The contract between the State and a contracted facility shall similarly provide that a letter to the ombudsman from an inmate in the contracted facility shall be forwarded immediately, unopened, to the ombudsman."

     SECTION 13.  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 2007-2008 and the same sum, or so much thereof as may be necessary for fiscal year 2008-2009 for any expenses or staffing needs resulting from the expansion of jurisdiction to administrative acts relating to the department of public safety and contracted facilities.

     The sums appropriated shall be expended by the office of ombudsman for the purposes of this Act.

     SECTION 14.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 15.  This Act shall take effect on July 1, 2007, and shall apply to investigations of contracted facilities with which the department of public safety has entered into a contract or with which the department has renewed a contract, after its effective date.

 

INTRODUCED BY:

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