Report Title:

Department of Education; Attorneys


Allows the department of education to utilize and hire attorneys other than the attorney general.


S.B. NO.









relating to the department of education.



SECTION 1. The legislature finds that the previous administration vetoed a critical measure enacted by the legislature during the 2002 regular session that would have authorized the board of education to retain its own attorneys without requiring the approval of the attorney general. The legislature further finds that the reasons given by the previous administration for the veto are generally irrelevant and with little or no consideration of the highly specialized world of education.

The legislature finds that it is critical that the board and the department of education be able to develop their own legal expertise to address the urgent and specialized issues that confront the department and the board. The legislature further finds that, in its ponderous efforts to juggle and weigh the board's interests against those of the rest of state government, it is conceivable that the attorney general will have difficulties in resolving legal matters completely and within the stringent time requirements required by the department.

The purpose of this Act is to again enact the measure passed by the legislature in 2002 and vetoed by the governor to authorize the board of education to retain its own attorneys without approval by the attorney general.

SECTION 2. Chapter 302A, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"302A- Department attorneys. (a) The department may appoint or retain by contract one or more attorneys who are independent of the attorney general, to provide legal services for the department, including:

(1) Representation for the department in civil actions to which the department is a party, either directly or through the acts or omissions of its officers or employees;

(2) Advice and assistance to ensure the lawful and efficient administration and operation of the department; and

(3) Other legal services specified by the board.

The board may fix the compensation of the attorneys appointed pursuant to this section. Attorneys appointed or retained by contract shall be exempt from chapters 76 and 89.

(b) Nothing in this section precludes the board from requesting and securing legal services from the attorney general and the department of the attorney general, for the department, for the board or its members, or for the department's officers and employees, upon mutual agreement."

SECTION 3. Section 28-8.3, Hawaii Revised Statutes, is amended:

1. By amending subsection (a) to read as follows:

"(a) No department of the State other than the attorney general may employ or retain any attorney, by contract or otherwise, for the purpose of representing the State or the department in any litigation, rendering legal counsel to the department, or drafting legal documents for the department; provided that the foregoing provision shall not apply to the employment or retention of attorneys:

(1) By the public utilities commission, the labor and industrial relations appeals board, and the Hawaii labor relations board;

(2) By any court or judicial or legislative office of the State;

(3) By the legislative reference bureau;

(4) By any compilation commission that may be constituted from time to time;

(5) By the real estate commission for any action involving the real estate recovery fund;

(6) By the contractors license board for any action involving the contractors recovery fund;

(7) By the trustees for any action involving the travel agency recovery fund;

(8) By the office of Hawaiian affairs;

(9) By the department of commerce and consumer affairs for the enforcement of violations of chapters 480 and 485;

(10) As grand jury counsel;

(11) By the Hawaiian home lands trust individual claims review panel;

(12) By the Hawaii health systems corporation or any of its facilities;

(13) By the auditor;

(14) By the office of ombudsman;

(15) By the insurance division;

(16) By the University of Hawaii;

(17) By the Kahoolawe island reserve commission;

(18) By the division of consumer advocacy; [or]

(19) By the department of education; or

[(19)] (20) By a department, in the event the attorney general, for reasons deemed by the attorney general good and sufficient, declines, to employ or retain an attorney for a department; provided that the governor thereupon waives the provision of this section."

2. By amending subsection (c) to read as follows:

"(c) Every attorney employed by any department on a full-time basis, except an attorney employed by the public utilities commission, the labor and industrial relations appeals board, the Hawaii labor relations board, the office of Hawaiian affairs, the Hawaii health systems corporation, the department of commerce and consumer affairs in prosecution of consumer complaints, insurance division, the division of consumer advocacy, the department of education, the University of Hawaii, the Hawaiian home lands trust individual claims review panel, or as grand jury counsel, shall be a deputy attorney general."

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.