STAND. COM. REP. NO. 3070

                                   Honolulu, Hawaii
                                                     , 2000

                                   RE:  S.C.R. No. 122
                                        S.D. 1




Honorable Norman Mizuguchi
President of the Senate
Twentieth State Legislature
Regular Session of 2000
State of Hawaii

Sir:

     Your Committee on Judiciary, to which was referred S.C.R.
No. 122 entitled:

     "SENATE CONCURRENT RESOLUTION REQUESTING THE LEGISLATIVE
     REFERENCE BUREAU TO CONDUCT A STUDY CONCERNING CRIMINAL
     HISTORY RECORD CHECKS,"

begs leave to report as follows:

     The purpose of this concurrent resolution is to request that
the Legislative Reference Bureau conduct a study on criminal
history records checks, including a review of the legal
ramifications of requiring such checks and a review of existing
federal, state, and county requirements.

     Your Committee finds that section 378-2, Hawaii Revised
Statutes (HRS), prohibits discriminatory employment practices on
the basis of a person's arrest and court record.  However,
section 378-2.5, HRS, permits an employer limited inquiry into
and consideration of criminal conviction information, if it bears
a rational relationship to the duties and responsibilities of a
position for which a conditional offer of employment has been
made.  To further complicate matters, various exceptions
presently exist in the law that either permit or mandate criminal
history records checks in select instances, including but not
limited to: employees in public and private schools; operators
and employees in child caring institutions or foster homes and
adult foster homes; correctional or detention facilities; private
investigators and guards; and condominium employees.  


 
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     Furthermore, your Committee notes that the Federal Bureau of
Investigations will only conduct criminal history checks if a
state statute specifically authorizes a state or local government
agency to conduct such searches for the purposes of employment or
licensing.

     Your Committee is aware that a number of bills introduced
during the 2000 Regular Session attempt to carve out additional
exceptions for criminal history record checks.  For example, S.B.
2876, S.D. 1, requires the Department of Health to develop
procedures for obtaining verifiable information, including
criminal history record checks, regarding the criminal history of
persons seeking employment with the Department, its providers, or
its subcontractors.  S.B. 2098, H.D. 2, requires private schools,
in cooperation with the Hawaii Criminal Justice Data Center, to
conduct criminal history verifications of employment applicants
to positions involving close proximity with children.  

     While your Committee recognizes that persons who were once
convicted of an offense and have been rehabilitated deserve equal
access to employment opportunities, your Committee also
recognizes that there are many occupations where an employer
should be made aware of an applicant or employee's criminal
history, especially if the position works closely with vulnerable
populations.  Your Committee does not seek to establish a
statewide policy at this time, but your Committee believes that a
comprehensive review of the issue of criminal record checks is
necessary in order to ensure fair and consistent application,
rather than continuing to impose requirements in a piecemeal
fashion.

     Testimony in support of this measure was submitted by the
Department of the Attorney General, the American Association of
Retired Persons, and the Sex Abuse Treatment Center.  The
Legislative Reference Bureau orally testified in support of this
measure and expressed its willingness to undertake such an
important task.  One individual submitted comments.

     Upon further consideration, your Committee has amended this
concurrent resolution by adding that the Legislative Reference
Bureau research the feasibility of making Hawaii an open records
state, which would allow the general public, including non-
criminal justice agencies, to receive state non-conviction
information.

     As affirmed by the record of votes of the members of your
Committee on Judiciary that is attached to this report, your
Committee concurs with the intent and purpose of S.C.R. No. 122,
as amended herein, and recommends that it be referred to the

 
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Committee on Ways and Means, in the form attached hereto as
S.C.R. No. 122, S.D. 1.

                                   Respectfully submitted on
                                   behalf of the members of the
                                   Committee on Judiciary,



                                   ______________________________
                                   AVERY B. CHUMBLEY, Co-Chair



                                   ______________________________
                                   MATTHEW M. MATSUNAGA, Co-Chair

 
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