REPORT TITLE:
UH; General Counsel


DESCRIPTION:
Creates procedure for service of process upon UH; establishes
that settlements in claims against UH are paid out of legislative
appropriations; and clarifies legal services provided by
university general counsel.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2061 
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT


RELATING TO THE UNIVERSITY OF HAWAII.



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

 1      SECTION 1.  Act 115, Session Laws of Hawaii 1998, authorized
 
 2 the University of Hawaii to appoint its own attorneys.  Based on
 
 3 this authorization, the university has established the office of
 
 4 the senior vice president for legal affairs and university
 
 5 general counsel.  The purpose of this Act is to establish a
 
 6 procedure for service of process upon the university; preserve
 
 7 the university's sovereign immunity by clarifying that
 
 8 settlements or judgments against the university are paid from
 
 9 legislative appropriations, and clarify that legal services to
 
10 the university shall be provided by the university general
 
11 counsel.
 
12      SECTION 2.  Chapter 304, Hawaii Revised Statutes, is amended
 
13 by adding a new section to part I to be appropriately designated
 
14 and to read as follows:
 
15      "304-    Service of process.  (a)  Service of process upon
 
16 the University of Hawaii shall be made by delivering a filed and
 
17 certified copy of the summons and of the complaint to the
 
18 university general counsel or to any university associate general
 
19 counsel.
 

 
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 1      (b)  Service of process upon an officer or employee of the
 
 2 University of Hawaii shall be made by serving the university and
 
 3 by delivering a copy of the summons and of the complaint to such
 
 4 officer or employee."
 
 5      SECTION 3.  Section 26-35.5, Hawaii Revised Statutes, is
 
 6 amended by amending subsections (e) and (f) to read as follows:
 
 7      "(e)  The attorney general, or in the case of the board of
 
 8 regents of the University of Hawaii, its university general
 
 9 counsel, shall represent and defend a member in any civil action
 
10 for which immunity is conferred under subsection (b), or when the
 
11 attorney general, or, if the action involves a member of the
 
12 board of regents, the university general counsel, determines that
 
13 indemnification is available to the member under subsection (c),
 
14 and the member against whom the action is brought has submitted a
 
15 written request for representation and has provided the attorney
 
16 general, or university general counsel, with all process or
 
17 complaint served upon the member within a reasonable period of
 
18 time, but no more than five days after being served with the
 
19 process or complaint.  The attorney general may terminate the
 
20 representation and defense of the member at any time if, after
 
21 representation and defense is accepted, the attorney general, or
 
22 university general counsel, determines that indemnification would
 
23 not be available to the member under subsection (c).
 

 
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 1      (f)  A member may retain counsel of the member's own choice
 
 2 at the member's own expense.  If the member chooses to retain
 
 3 counsel at the member's own expense, the State shall not
 
 4 indemnify the member even though the member would have been
 
 5 entitled to indemnification under subsection (c).  The attorney
 
 6 general, or the university general counsel in the case of a
 
 7 member of the board of regents, may enter an appearance in any
 
 8 action in which the member is represented by counsel of the
 
 9 member's own choice, even though no request for the appearance
 
10 has been made by the member."
 
11      SECTION 4.  Section 26-35.5, Hawaii Revised Statutes, is
 
12 amended by amending subsections (h) and (i) to read as follows:
 
13      "(h)  If the attorney general, or university general counsel
 
14 in the case of a member of the board of regents, denies
 
15 representation to the member under subsection (e) and the member
 
16 proceeds to judgment in the action for which representation was
 
17 denied, the member may commence an action against the State in
 
18 the circuit court to recover reasonable costs and fees incurred
 
19 by the member in defending against that action, including
 
20 attorney's fees, court costs, investigative costs, and expert
 
21 witness fees.  The State shall pay the judgment or reimburse the
 
22 member if the member has satisfied the judgment in an action for
 
23 which representation was denied; provided the member was found
 

 
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 1 not liable in that action or the member establishes by a
 
 2 preponderance of the evidence that the member is entitled to
 
 3 indemnification under subsection (c).  A finding of negligence
 
 4 against the member in the civil action for which representation
 
 5 was denied shall not be binding upon the circuit court in any
 
 6 action brought under this subsection.  The member shall commence
 
 7 any action under this subsection no later than two years after
 
 8 entry of judgment in the action for which the member was denied
 
 9 representation if no appeal is filed, or two years after the
 
10 conclusion of the final appeal from that judgment if an appeal is
 
11 filed.
 
12      (i)  If the attorney general, or the university general
 
13 counsel in the case of a member of the board of regents, denies
 
14 representation to the member under subsection (e) and the member
 
15 negotiates a compromise or settlement without an entry of
 
16 judgment in the action for which representation was denied, the
 
17 member may seek to introduce a bill in the legislature to secure
 
18 an appropriation to reimburse the member for the amount of the
 
19 settlement or that portion which constitutes a reasonable
 
20 settlement, and for reasonable costs and fees incurred by the
 
21 member in defending against that action, including attorney's
 
22 fees, court costs, investigative costs, and expert witness fees."
 
23      SECTION 5.  Section 40-82, Hawaii Revised Statutes, is
 

 
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 1 amended to read as follows:
 
 2      "40-82  Uncollectible accounts.(a)  The directors,
 
 3 boards, or executive heads of executive departments may from time
 
 4 to time prepare and submit for the review of the attorney general
 
 5 a list of all uncollectible accounts in their departments.  Such
 
 6 accounts as the attorney general finds to be uncollectible shall
 
 7 be entered in a special record and be deleted from the accounts
 
 8 receivable records of the departments, which shall thereupon be
 
 9 relieved from any further accountability for their collection;
 
10 provided that no account shall be so deleted until it shall have
 
11 been delinquent for at least two consecutive years.  Any account
 
12 entered in the special record shall be transferred back to the
 
13 current accounts receivable if the attorney general finds that
 
14 the facts as alleged and presented to the attorney general were
 
15 not true, or that the account has become collectible.
 
16      As used in this section, "uncollectible account" means an
 
17 account with regard to which:
 
18      (1)  The debtor or party causing damage to property
 
19           belonging to the State is no longer within the
 
20           jurisdiction of the State;
 
21      (2)  The debtor or party causing damage to property
 
22           belonging to the State cannot be located;
 
23      (3)  The party causing damage to property belonging to the
 

 
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 1           State is unknown or cannot be identified;
 
 2      (4)  The debtor has filed bankruptcy and has listed the
 
 3           State as a creditor; or
 
 4      (5)  Any other account as may be deemed by the attorney
 
 5           general to be uneconomical or impractical to collect.
 
 6      (b)  The judiciary may from time to time prepare lists of
 
 7 all delinquent fines and restitution, which in its judgment are
 
 8 uncollectible.  The fines or restitution that the judiciary finds
 
 9 to be uncollectible shall be entered in a special record and be
 
10 deleted from the other books kept by the judiciary, and the
 
11 judiciary shall thereupon be released from any further
 
12 accountability for their collection; provided that no account
 
13 shall be so deleted until it shall have been delinquent for at
 
14 least two years.  Any fines or restitution so written off may be
 
15 transferred back to the judiciary's accounts receivable if the
 
16 judiciary finds that the alleged facts as previously presented to
 
17 it were not true, or that the fines or restitution are in fact
 
18 collectible, or that the fines or restitution have become
 
19 collectible.  Nothing in this section shall preclude a person to
 
20 whom restitution is owed from pursuing collection of the debt.
 
21      (c)  The judiciary shall submit an annual report to the
 
22 legislature, no later than twenty days prior to the convening of
 
23 each regular session, which shall summarize the types and amounts
 

 
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 1 of uncollectible delinquent fines and restitution that either
 
 2 were:
 
 3      (1)  Entered in a special record and deleted from the
 
 4           judiciary's other books; or
 
 5      (2)  Transferred back to the judiciary's accounts
 
 6           receivable.
 
 7      (d)  The University of Hawaii may from time to time prepare
 
 8 for the review of the university general counsel a list of all
 
 9 uncollectible accounts.  All accounts the university general
 
10 counsel finds to be uncollectible shall be entered into a special
 
11 record and be deleted from the accounts receivable records of the
 
12 university, which shall thereupon be relieved from any further
 
13 accountability for their collection; provided that no account
 
14 shall be so deleted until it shall have been delinquent for at
 
15 least two consecutive years.  Any account entered in the special
 
16 record shall be transferred back to the current accounts
 
17 receivable if the university general counsel finds that the
 
18 account has become collectible."
 
19      SECTION 6.  Section 107-10, Hawaii Revised Statutes, is
 
20 amended to read as follows:
 
21      "107-10  Acquiring of real property; prior approval.  No
 
22 real property or any right, title, or interest therein shall be
 
23 acquired by agreement, purchase, gift, devise, eminent domain, or
 

 
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 1 otherwise, for any purpose, by the State or any department,
 
 2 agency, board, commission, or officer thereof, without the prior
 
 3 approval of the attorney general as to form, exceptions, and
 
 4 reservations.  This section shall not apply to the University of
 
 5 Hawaii."
 
 6      SECTION 7.  Section 304-6, Hawaii Revised Statutes, is
 
 7 amended by amending subsection (b) to read as follows:
 
 8      "(b)  The board of regents, upon the advice of its attorney,
 
 9 may arbitrate, compromise, or settle any claim, action, or suit
 
10 brought against the university pursuant to this section.  Any
 
11 claim compromised or settled under this subsection shall be
 
12 payable [solely] from the moneys [and property of the university
 
13 and shall not constitute a general obligation of the State, or be
 
14 secured directly or indirectly by the full faith and credit of
 
15 the State or the general credit of the State, or by any revenue
 
16 or taxes of the State.  Nothing in this subsection precludes the]
 
17 appropriated by the legislature.  The board of regents [from
 
18 requesting and securing] may request and secure legislative
 
19 appropriations to fund the settlement of any such claim or
 
20 judgment against the university, its regents, officers,
 
21 employees, or agents."
 
22      SECTION 8.  Section 304-6.5, Hawaii Revised Statutes, is
 
23 amended by amending subsection (c) to read as follows:
 

 
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 1      "(c)  Indemnification claims authorized by this section
 
 2 shall be payable [solely] from [the] moneys [and property of the
 
 3 university, and shall not constitute a general obligation of the
 
 4 State, or be secured directly or indirectly by the full faith and
 
 5 credit of the State or the general credit of the State, or by any
 
 6 revenues or taxes of the State.  The board of regents may obtain
 
 7 loss insurance to cover the liability of the university that may
 
 8 arise under this section; provided that loss insurance for the
 
 9 university shall be at the university's expense.] appropriated by
 
10 the legislature."
 
11      SECTION 9.  Statutory material to be repealed is bracketed.
 
12 New statutory material is underscored.
 
13      SECTION 10.  This Act shall take effect upon its approval.
 
14 
 
15                           INTRODUCED BY:  _______________________