HOUSE OF REPRESENTATIVES

H.B. NO.

2402

TWENTY-NINTH LEGISLATURE, 2018

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO DEPARTMENT OF TRANSPORTATION'S OFFICE OF SECURITY AND LAW ENFORCEMENT.

 

 

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

 


     SECTION 1.  Current events such as terrorism, active shooter, insider threat, human smuggling and trespassing impact our airports, harbors, and highways and require a single program entity under a unified command structure to strengthen the specialized law enforcement and security required for Hawaii's unique transportation systems for its airports, harbors, and highways, while ensuring the freedom of movement for people and commerce.  Hawaii's isolation and geographic location as an island state necessitates that the department of transportation possess the ability and statutory authority to establish an office of security and law enforcement specifically for its transportation systems.  Currently, the department's programs for security and law enforcement for its transportation systems are split under various memorandum of understandings, agreements, and contracts reporting to their own command.  To better improve security and law enforcement with a single program entity to address security, accountability, health, and safety concerns in aviation and maritime and at highway facilities, the consolidation of these specialized operations under a unified command structure with statutory authority would better allow the department under its director to comply with all federal, state, and local law enforcement and security requirements.  The purpose of this Act is to provide the director of transportation with the statutory authority to establish and direct an office of security and law enforcement for transportation systems.

     SECTION 2.  The failure to approve the establishment of the office of security and law enforcement will require the department to place greater reliance on private contractors to maintain the security and law enforcement of its critical infrastructures, with less direct supervision over the different programs and personnel, which will result in inefficiency, conflicts, and an unsafe environment.  Noncompliance with applicable regulations and requirements could subject the department to violations and noncompliance with federal airports, harbors, and highways regulations and result in penalties, fines, and demand for immediate remedial action(s).

     SECTION 3.  The Hawaii Revised Statutes is amended by adding a new chapter under Title 15 Transportation and Utilities to be appropriately designated and to read as follows:

"CHAPTER

OFFICE OF SECURITY AND LAW ENFORCEMENT

     §    -1  Definitions.  As used in this chapter:

     "Aeronautics" shall have the same meaning as defined in section 261-1.

     "Airport" shall have the same meaning as defined in section 261-1.

     "Airport security plan" means the plan for the safety and security of persons and property against criminal violence, aircraft piracy, and the introduction of an unauthorized weapon, explosive, or incendiary devise onto an aircraft that airports are required to adopt and establish under 49 Code of Federal Regulations part 1542.  This plan must be approved by Transportation Security Administration and an airport operator cannot operate an airport unless the airport adopts and carries out the provision of the plan.  This document contains information that is classified as a Security Sensitive Information.

     "Assistant security manager" means the assistant chief of the office of security and law enforcement under the department with law enforcement powers and authority as delegated under chapter 261 as amended.

     "Commercial harbor" shall have the same meaning as defined in section 266-1.

     "Deputy sheriff II" means an individual duly authorized and charged with enforcement of state laws for all premises and property within the premises controlled by the State of Hawaii.

     "Deputy sheriff III" means an individual duly authorized and charged with enforcement of state laws for all premises and property within the premises controlled by the State of Hawaii with supervisory authority over Deputy sheriffs II.

     "Deputy sheriff IV" means an individual duly authorized and charged with enforcement of state laws for all premises and property within the premises controlled by the State of Hawaii with supervisory authority over deputy sheriffs III.

     "Department" means the department of transportation.

     "Director" means the director of transportation.

     "Facility security plan" means the plan for safety and security of persons and property that harbors are required to adopt and establish under the Maritime Security Act of 2002.  The security requirements are also used to meet security requirements during various Maritime Security levels.  This plan must be approved by United States Coast Guard and a harbor operator cannot operate a harbor unless the harbor adopts and carries out the provision of the plan.  This document contains information that is classified as Sensitive Security Information.

     "Investigators" means a law enforcement officer with prior training and experience in conducting criminal and civil investigations and designated by the director of transportation with the authority to conduct these investigations.

     "Law enforcement powers for airports" shall mean the powers described in section 261-17(a).

     "Law enforcement powers for harbors" shall mean the powers described in section 266-24(a).

     "Law enforcement powers for highways" shall be as directed by or be at the discretion of the security manager.

     "Office of security and law enforcement" means the special program authorized under section 76-11.6 reporting to the director of transportation.

     "Public highways and trails" shall mean such highways and trails as described in section 264-1.

     "Security manager" means the chief of the office of security and law enforcement under the department of transportation with law enforcement powers and authority as delegated under chapter 261 as amended.

     "Transportation sectors" means the premises, property and facilities owned and operated by the State of Hawaii under the department of transportation and further identified as transportation sectors (airports, harbors, and highways).

     "Transportation sector federal agencies" means the federal agency authorized to regulate security plans and measures to prevent terrorism (i.e., Transportation Security Administration-airport; United States Coast Guard-harbors; Customs and Border Protection-international arrivals area of transportation sectors (airports, harbors, and highways); Federal Aviation Administration-regulates movement areas of transportation sectors (airports, harbors, and highways); and United States Department of Agricultural; etc.) with authority to impose violation notice(s).

     "Trusted individual" means an employee designated as a law enforcement, investigator, or security official assigned to and part of the office of law enforcement and security for transportation systems whose official duties require and authorize the employee to have access to security sensitive information on a need to know basis to perform their duties.  Each individual with this designation will be held accountable for any unauthorized disclosure or release of security sensitive information to unauthorized individuals.

     §    -2  The office of law enforcement and security for transportation systems; establishment; appointment of officers.

     (a)  There is established in the department of transportation the office of security and law enforcement which reports directly to the director and will consist of three positions:  security manager, assistant security manager, and secretary.

     (b)  Under the general direction of the director, the

office shall be responsible for providing security and law enforcement and administrative services to all persons and property on the premises of the department statewide facilities (airports, harbors, and highways) and surrounding appurtenances and property under the jurisdiction and management of the department.

     (c)  The general duties of the security manager are to

provide executive direction, manage operations and administration, provide direct control and command of all security and law enforcement personnel at the department, its facilities, and land in accordance to and in compliance with all applicable local, state, and federal laws.  The security manager shall serve to uphold the standards of law enforcement and security.

     (d)  This office will have authority to control, manage and

administer security and law enforcement at the department and its divisions, branches, units, programs and personnel.

     (e)  This office will work closely with federal, state,

and local officials, and the private sector to ensure that proper procedures are established to protect critical infrastructure under the jurisdiction of the department and applicable federal agencies to improve security and law enforcement operations.

     (f)  This office will also include component programs to

respond to enforcement of laws relating to the department's jurisdiction; identify the need to enhance emergency management operations at the department; and identify the need to create and support internal criminal and administrative investigations at the department.

     §    -3  The office of law enforcement and security for transportation system – finances; duration; conversion; and reports.  (a)  This office shall be entirely special-funded.

     (b) The duration of this office shall be from August 1, 2017 to July 31, 2022, but may be converted to permanent status from special project provided that it meets the goals in performance and effectiveness in providing a safe and secure environment.  The criteria to determine its performance and effectiveness will include, but not be limited to, whether enforcement and security efficiencies increased, as well as, development and maintenance of systems and personnel.

     (c) This office shall submit an annual report to the legislature with annual statistics, reports, and records to reflect this office's operation.

     §    -4  Enforcement of laws.  (a)  The director shall administer the public safety program of the department and shall be responsible for the formulation and implementation of state goals and objectives for law enforcement and security programs, including but not limited to all of the transportation sectors under the department ensuring full compliance with applicable federal regulations and requirements to the maximum extent practicable to allow freedom of movement of people and commerce.  In the administration of these programs, the director may:

(1) Preserve the public peace, prevent crime, detect and detain and arrest offenders against the law, protect the rights of persons and property, and enforcement and prevent violation of all laws and administrative rules of the State and the federal government as the director deems to be necessary or desirable or upon request, to assist other federal, state officers or agencies that have primary administrative responsibility over specific subject matter or programs;

(2)  Train, equip, maintain, and supervise the force of public safety officers, including law enforcement and designated security personnel, and other employees of the department;

(3)  Serve process both in civil and criminal proceedings;

(4)  Perform other duties as may be required by law;

(5)  Adopt, pursuant to chapter 91 and other applicable chapters associated with transportation sectors (airports, harbors, and highways), harbors and highways, rules that are necessary or desirable for the administration of public safety programs; and

(6)  Enter into contracts in behalf of the department and take actions deemed necessary and appropriate for the proper and efficient administration of the department.

     (b)  The director may appoint officers, and employees of the department to be public safety officers who shall have all of the powers of police officers; provided that the director may establish and assign the employees to positions or categories of positions that may have differing titles, special duties, and limitations upon the exercise of police powers;

     (c)  The director may appoint officers, and employees of the department and every state and county officer charged with the enforcement of state laws and ordinances, shall enforce and assist in the enforcement of this chapter and of all rules and orders issued pursuant thereto and of all other laws of the State; and in that connection each of the person's may inspect and examine at reasonable hours any premises, and the buildings and other structures thereon, where transportation sectors (airports, harbors, and highways), or other facilities or activities as deemed appropriate by the director is operated or conducted.  In aid of the enforcement of this chapter, the rules and orders issued pursuant thereto, and all other laws of the State, the powers of police officers are conferred upon the director, and such of the officers, employees, agents, and representatives of the department as may be designated by the director to exercise such powers, including the power to serve and execute warrants and arrest offenders, and the power to serve notices and orders.  For the purposes of this subsection the term "trusted agents and trusted representatives" includes persons performing services at transportation sectors (airports, harbors and highways) under contract with the department.

     (d)  The director may appoint, designate, and commission other personnel such as security officers without law enforcement powers as necessary to carry out the functions of the department.  Persons appointed and commissioned under this subsection may be exempt from chapter 76.

     (e)  The director may appoint, designate, and commission one or more investigators as the exigencies of the public service may require.  Persons appointed and commissioned under this section shall have and may exercise all of the powers and authority and the benefits and privileges of a deputy sheriff.  These investigators shall consist of personnel whose primary duty is to conduct investigations as directed by the director.  Persons appointed and commissioned under this section may be exempt from chapter 76.

(7)  Investigators shall also have and may exercise all of the powers and authority and benefits and privileged of a police officer and/or a duty sheriff.

(8)  The director may adopt rules pursuant to chapter

91 to implement this section.

     (f)  No person shall provide or be hired to provide armed or unarmed security services at transportation sectors (airports, harbors and highways) within the  State without first submitting statements signed under penalty of false swearing by the person indicating whether the person has ever been convicted of a crime which, by law, would preclude the person from carrying or using a firearm in the course of the person's employment, including a felony conviction in the State or elsewhere, and providing consent to the department to have a criminal history record check conducted by the Federal Bureau of Investigation to obtain criminal history record information.  The person shall also be fingerprinted for the purpose of a Federal Bureau of Investigation criminal history record check.  The Hawaii criminal justice data center may also assess the existing providers of armed security services at transportation sectors (airports, harbors, and highways) within the State, or their employees or applicants for employment, or any applicant for employment to provide armed security services at the department of transportation facilities within the State, a reasonable fee for each criminal history record check performed by the Federal Bureau of Investigation.  In addition, if applicable persons' providing armed security service shall be subject to Federal transportation sector requirements background clearance requirements (security threat assessment).

     (g)  The department may, in the name of the State, enforce this chapter and the rules and orders issued pursuant thereto by injunction or other legal process in the courts of the State.

     §    -5  Arrest or citation.  Except when required by state law to take immediately before a district judge a person arrested for a violation of any provision of this chapter, including any rule or regulation adopted and promulgated pursuant to this chapter, any person authorized to enforce the provisions of this chapter, hereinafter referred to as enforcement officer, upon arresting a person for violation of any provision of this chapter, including any rule or regulation adopted and promulgated pursuant to this chapter shall, in the discretion of the enforcement officer, either;

(1)  Issue to the purported violator a summons or citation, printed in the form hereinafter described, warning the purported violator to appear and answer to the charge against the purported violator at a certain place and at a time within seven days after such arrest, or;

(2)  Take the purported violator without unnecessary delay before a district judge.  The summons or citation shall be printed in a form comparable to the form of other summonses and citations used for arresting offenders and shall be designed to provide for inclusion of all necessary information.  The form and content of such summons or citation shall be adopted or prescribed by the district courts.

The original of a summons or citation shall be given to the purported violator and the other copy or copies distributed in the manner prescribed by the district courts; provided that the district courts may prescribe alternative methods of distribution for the original and any other copies.

Summonses and citations shall be consecutively numbered and the carbon copy of each shall bear the same number.  Any person who fails to appear at the place and within the time specified in the summons or citation issued to the person by the enforcement officer, upon the person's arrest for violation of any provision of this chapter, including any rule or regulation promulgated pursuant to this chapter, shall be guilty of a misdemeanor and, on conviction, shall be fined not more than $1,000, or be imprisoned not more than six months, or both.  In the event any person fails to comply with a summons or citation issued to such person, or if any person fails or refuses to deposit bail as required, the enforcement officer shall cause a complaint to be entered against such person and secure the issuance of a warrant for the person's arrest.

     SECTION 4.  Section 26-19, Hawaii Revised Statutes, is amended to read as follows:

     "§26-19 Department of transportation.  The department of transportation shall be headed by a single executive to be known as the director of transportation.

     The department shall establish, maintain, and operate transportation facilities of the State, including highways, airports, harbors, and such other transportation facilities and activities as may be authorized by law.

     The department shall plan, develop, promote, and coordinate various transportation systems management programs that shall include, but not be limited to, security, law enforcement, alternate work and school hours programs, bicycling programs, and ridesharing programs.

     The department shall develop and promote ridesharing programs which shall include but not be limited to, carpool and vanpool programs, and may assist organizations interested in promoting similar programs, arrange for contracts with private organizations to manage and operate these programs, and assist in the formulation of ridesharing arrangements.  Ridesharing programs include informal arrangements in which two or more persons ride together in a motor vehicle.

     The functions and authority heretofore exercised by the department of public works with respect to highways are transferred to the department of transportation established by this chapter.

     On July 1, 1961, the Hawaii aeronautics commission, the board of harbor commissioners and the highway commission shall be abolished and their remaining functions, duties, and powers shall be transferred to the department of transportation.

     Upon the abolishment of the Hawaii aeronautics commission, the board of harbor commissioners, and the highway commission, there shall be established within the department of transportation a commission to be known as the commission on transportation which shall sit in an advisory capacity to the director of transportation on matters which the jurisdiction of the department of transportation.  The commission on transportation shall consist of not more than eleven members, with the number of members from each county insofar as practicable being approximately proportional to the population of the respective counties to the population of the State; provided that each of the four counties shall be represented by at least one member.

     The department of transportation shall be responsible for the formulation and implementation of state policies and objectives for law enforcement and security, civil and criminal investigations, and public safety purposes and functions, for the administration and maintenance of all public transportation system facilities and services, for service of process and issuance of administrative subpoenas and the security of department of transportation statewide transportation system facilities to ensure freedom of movement of people and commerce."

     SECTION 5.  Section 76-77, Hawaii Revised Statutes, is amended to read as follows:

     "§76-77  Civil service and exemptions.  The civil service to which this part applies comprises all positions in the public service of each county, now existing or hereafter established, and embraces all personal services performed for each county, except the following:

     (1)  Positions in the office of the mayor; provided that the positions shall be included in the classification systems;

     (2)  Positions of officers elected by public vote, positions of heads of departments, and positions of one first deputy or first assistant of heads of departments;

     (3)  Positions of deputy county attorneys, deputy corporation counsel, deputy prosecuting attorneys, and law clerks;

     (4)  Positions of members of any board, commission, or agency;

     (5)  Positions filled by students; positions filled through federally funded programs which provide temporary public service employment such as the federal Comprehensive Employment and Training Act of 1973; and employees engaged in special research or demonstration projects approved by the mayor, for which projects federal funds are available;

     (6)  Positions of district judges, jurors, and witnesses;

     (7)  Positions filled by persons employed by contract where the personnel director has certified that the service is special or unique, is essential to the public interest, and that because of the circumstances surrounding its fulfillment, personnel to perform the service cannot be recruited through normal civil service procedures; provided that no contract pursuant to this paragraph shall be for any period exceeding one year;

     (8)  Positions of a temporary nature needed in the public interest where the need does not exceed ninety days; provided that before any person may be employed to render temporary service pursuant to this paragraph, the director shall certify that the service is of a temporary nature and that recruitment through normal civil service recruitment procedures is not practicable; and provided further that the employment of any person pursuant to this paragraph may be extended for good cause for an additional period not to exceed ninety days upon similar certification by the director;

     (9)  Positions of temporary election clerks in the office of the county clerk employed during election periods;

     (10) Positions specifically exempted from this part by any other state statutes;

     (11) Positions of one private secretary for each department head; provided that the positions shall be included in the classification systems;

     (12) Positions filled by persons employed on a fee, contract, or piecework basis who may lawfully perform their duties concurrently with their private business or profession or other private employment, if any, and whose duties require only a portion of their time, where it is impracticable to ascertain or anticipate the portion of time devoted to the service of the county and that fact is certified by the director;

     (13) Positions filled by persons with a severe disability who are certified by the state vocational rehabilitation office as able to safely perform the duties of the positions;

     (14) Positions of the housing and community development office or department of each county; provided that this exemption shall not preclude each county from establishing these positions as civil service positions;

     (15) The following positions in the office of the prosecuting attorney:  private secretary to the prosecuting attorney, secretary to the first deputy prosecuting attorney, and administrative or executive assistants to the prosecuting attorney; provided that the positions shall be included in the classification systems; and

     (16) Positions or contracts for personal services with private persons or entities for services lasting no more than one year and at a cost of no more than $750,000; provided that the exemption under this paragraph shall apply to contracts for building, custodial, and grounds maintenance services with qualified community rehabilitation programs, as defined in section 103D-1001, lasting for no more than a year and at a cost of no more than $850,000.

     (17) Positions or contracts for personal service with private persons or entities for security services in accordance with and pursuant to 49 CFR 152 (Airport Security Plan) for all airports under the ownership of the Airports Division to meet the various levels of security under the Homeland Security Advisory System and in accordance with and pursuant to the Maritime Transportation Security Act of 2002 (Facility Security Plan) for all harbors under the ownership of the Harbors Division, Department of Transportation to meet security requirements in the Federal Security Plan during various Maritime Security levels."

     SECTION 6.  New statutory material is underscored.

     SECTION 7.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

_____________________________

 

 

BY REQUEST


 


 

Report Title:

Security; Law Enforcement; Transportation

 

Description:

Establishes the Office of Law Enforcement and Security for Transportation Systems in the Department of Transportation.

 

 

 

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