BOE; attorneys

Allows the board of education to employ or retain its own
attorneys without the approval of the attorney general for issues
involving Felix compliance.  (SD1)

HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 1
TWENTIETH LEGISLATURE, 1999                                S.D. 1
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  In 1994, Felix v. Waihee determined that
 2 qualified handicapped children of the State of Hawaii were not
 3 receiving necessary educational and mental health services in
 4 violation of the Individuals with Disabilities Education Act and
 5 the Rehabilitation Act of 1973.  Since that time, the department
 6 of education has been unable to obtain sufficient legal
 7 assistance to meet the growing legal needs due to the influx of
 8 law suits against the special education division.  The
 9 legislature finds that the current legal assistance in the
10 department of education is insufficient.  
11      The purpose of this Act is to allow the board of education
12 to hire its own legal counsel for the purposes of assisting the
13 department of education in issues involving children with
14 disabilities.
15      SECTION 2.  Chapter 302A, Hawaii Revised Statutes, is
16 amended by adding a new section to be appropriately designated
17 and to read as follows:
18      "302A-    Department of education attorneys.  The board of
19 education may appoint or retain by contract one or more attorneys

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 1 who are independent of the attorney general, to provide legal
 2 services to the department of education for issues involving
 3 children with disabilities, including advice and assistance to
 4 ensure the lawful and efficient administration and operation of
 5 the department of education in the area of children with
 6 disabilities.  The board of education may fix the compensation of
 7 the attorneys appointed pursuant to this section.  Attorneys
 8 appointed or retained by contract shall be exempted from chapters
 9 76, 77, and 89."
10      SECTION 3.  Section 28-8.3, Hawaii Revised Statutes, is
11 amended as follows:
12      1.  By amending subsection (a) to read:
13      "(a)  No department of the State other than the attorney
14 general may employ or retain any attorney, by contract or
15 otherwise, for the purpose of representing the State or the
16 department in any litigation, rendering legal counsel to the
17 department, or drafting legal documents for the department;
18 provided that the foregoing provision shall not apply to the
19 employment or retention of attorneys:
20      (1)  By the public utilities commission, the labor and
21           industrial relations appeals board, and the Hawaii
22           labor relations board;
23      (2)  By any court or judicial or legislative office of the

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                                     H.B. NO.           H.D. 1
                                                        S.D. 1

 1           State;
 2      (3)  By the legislative reference bureau;
 3      (4)  By any compilation commission that may be constituted
 4           from time to time;
 5      (5)  By the real estate commission for any action involving
 6           the real estate recovery fund;
 7      (6)  By the contractors license board for any action
 8           involving the contractors recovery fund;
 9      (7)  By the trustees for any action involving the travel
10           agency recovery fund;
11      (8)  By the office of Hawaiian affairs;
12      (9)  By the department of commerce and consumer affairs for
13           the enforcement of violations of chapters 480 and 485;
14     (10)  As grand jury counsel;
15     (11)  By the Hawaiian home lands trust individual claims
16           review panel;
17     (12)  By the Hawaii health systems corporation or any of its
18           facilities;
19     (13)  By the auditor;
20     (14)  By the office of ombudsman;
21     (15)  By the insurance division;
22     (16)  By the University of Hawaii; [or]
23     (17)  By the board of education as provided by section

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                                     H.B. NO.           H.D. 1
                                                        S.D. 1

 1           302A-   ; or
 2    [(17)] (18)  By a department, in the event the attorney
 3           general, for reasons deemed by the attorney general
 4           good and sufficient, declines, to employ or retain an
 5           attorney for a department; provided that the governor
 6           thereupon waives the provision of this section."
 7      2.  By amending subsection (c) to read:
 8      "(c)   Every attorney employed by any department on a full-
 9 time basis, except an attorney employed by the public utilities
10 commission, the labor and industrial relations appeals board, the
11 Hawaii labor relations board, the office of Hawaiian affairs, the
12 Hawaii health systems corporation, the department of commerce and
13 consumer affairs in prosecution of consumer complaints, insurance
14 division, the University of Hawaii, the board of education, the
15 Hawaiian home lands trust individual claims review panel, or as
16 grand jury counsel, shall be a deputy attorney general."
17      SECTION 4.  Statutory material to be repealed is bracketed.
18 New statutory material is underscored.
19      SECTION 5.  This Act shall take effect upon its approval.