Report Title:

Ombudsman; Complaints by Small Businesses

Description:

Expands the scope of the state ombudsman's jurisdiction and investigative authority to include pursuing complaints by small businesses against government agencies. Imposes a penalty on agencies for not complying with the opinion and recommendations of the ombudsman. Requires ombudsman to report annually on the number and nature of small business complaints received and the disposition of each complaint. (SD1)

THE SENATE

S.B. NO.

126

TWENTY-SECOND LEGISLATURE, 2003

S.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to economic development.

 

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

SECTION 1. The legislature finds that Hawaii's small businesses are the largest contributors to the State's economy, the primary generators of new jobs, and the leading innovators. Therefore, it is imperative that State government maintains a climate that encourages and facilitates the creation, sustainability, and growth of Hawaii's small businesses.

To this end, the legislature enacted Act 168, Session Laws of Hawaii 1998, which established the Hawaii Small Business Regulatory Flexibility Act and the small business defender. Both were recognized as initiatives that provided small businesses a viable voice in reducing unnecessary regulatory burdens and an advocate for small business as an integral part of state governance. Unfortunately, the small business defender position was never filled and was repealed in 2002. The legislature finds, however, that since small business owners are often unfamiliar with government, the office of ombudsman, which serves as a neutral independent intermediary between citizens and government agencies, would be the appropriate office to pursue complaints by small businesses against government agencies. In pursuing these complaints, the ombudsman will exercise its current powers and duties, including maintaining confidentiality, having subpoena powers available, possessing broad powers to resolve or modify agency actions, and enforcing these powers.

The purpose of this Act is to further define the scope of the state ombudsman's jurisdiction and investigative authority to include pursuing complaints by small businesses against government agencies. In addition, this Act imposes a penalty on agencies that do not comply with the opinion and recommendations of the ombudsman.

SECTION 2. Section 96-1, Hawaii Revised Statutes, is amended to read as follows:

"§96-1 Definitions. (a) "Agency" includes any permanent governmental entity, department, organization, or institution, and any officer, employee, or member thereof acting or purporting to act in the exercise of the officer's, employee's, or member's official duties, except:

(1) The judiciary and its staff;

(2) The legislature, its committees, and its staff;

(3) An entity of the federal government;

(4) A multistate governmental entity;

(5) The governor and the governor's personal staff;

(6) The lieutenant governor and the lieutenant governor's personal staff;

(7) The mayors of the various counties; and

(8) The councils of the various counties.

(b) "Administrative act" includes any action, omission, decision, recommendation, practice, or procedure, including acts relating to small businesses, but does not include the preparation or presentation of legislation.

(c) "Small business" means an independently owned business with less than fifty employees."

SECTION 3. Section 96-5, Hawaii Revised Statutes, is amended to read as follows:

"§96-5 Jurisdiction. The ombudsman has jurisdiction to [investigate the]:

(1) Investigate the administrative acts of agencies; and

(2) Pursue complaints by small business owners against an agency.

The ombudsman may exercise the ombudsman's powers without regard to the finality of any administrative act."

SECTION 4 Section 96-12, Hawaii Revised Statutes, is amended to read as follows:

"§96-12 Procedure after investigation. (a) 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;

the ombudsman shall report the ombudsman's opinion and recommendations to the agency. The ombudsman may request the agency to notify the ombudsman, within a specified time, of any action taken on the ombudsman's recommendations.

(b) If the ombudsman determines that an agency has not taken any appropriate action compliant with the opinion and recommendations within a time specified by ombudsman, the agency shall be fined not more $1,000 per day of noncompliance."

SECTION 5. Section 96-16, Hawaii Revised Statutes, is amended to read as follows:

"§96-16 Annual report. (a) The ombudsman shall submit to the legislature and the public an annual report discussing the ombudsman's activities under this chapter.

(b) The report shall include the number and nature of small business complaints received and the disposition of each complaint."

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

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