REPORT TITLE:
Managed Competition


DESCRIPTION:
Establishes a process for managed competition pursuant to section
6 of Act 230, Session Laws of Hawaii 1998, to allow the State and
counties to contract with private sector vendors for the
provision of government services, or to allow those service to be
performed in-house, as appropriate.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        1868
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT
RELATING TO THE PROCESS FOR MANAGED COMPETITION SPECIFIED IN ACT
   230, SESSION LAWS OF HAWAII 1998.



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

 1      SECTION 1.  The purpose of this Act is to establish a
 
 2 process for managed competition to enhance government's ability
 
 3 to provide services it needs or is required to perform more
 
 4 efficiently and economically.  It is a response to both the
 
 5 Hawaii supreme court's decision in Konno v. County of Hawaii, 85
 
 6 Haw. 61 (1997), and the legislature's enactment of Act 230,
 
 7 Session Laws of Hawaii 1998.
 
 8      In Konno, the Hawaii Supreme Court invalidated a contract
 
 9 between the County of Hawaii and a private landfill developer and
 
10 operator after concluding that under the State's civil service
 
11 laws, only civil servants could perform the services and fill the
 
12 positions historically and customarily provided or filled by
 
13 civil servants.  Consequently, state and county agencies, in some
 
14 instances, were precluded from entering into service contracts
 
15 with private providers to obtain the services they needed, reduce
 
16 direct labor, material, and equipment costs, and take advantage
 
17 of indirect savings through contractual provisions for insurance
 
18 and indemnification against third-party and regulatory liability
 
19 claims.
 

 
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 1      Act 230, Session Laws of Hawaii 1998, established a
 
 2 committee to make government more efficient and cost-effective by
 
 3 authorizing state and county agencies to contract with the
 
 4 private sector for the provision of government services, and at
 
 5 the same time ensure that when government decides to seek
 
 6 services from the private sector, agencies rely on accurate
 
 7 assessments of government's financial condition, make informed
 
 8 and responsible cost comparisons, and make every effort to
 
 9 minimize the impact of their decisions on public employees.
 
10      The process for managed competition which is set out in
 
11 section 2 of this Act was developed by the committee for managed
 
12 competition that the legislature formed in section 6 of Act 230.
 
13 Except to preserve the exceptions from the civil service and
 
14 collective bargaining laws that the legislature has already
 
15 established, the process rejects categorical inclusions and
 
16 exclusions and opts instead for individualized evaluations of
 
17 whether government or the private sector can provide needed
 
18 services more efficiently and economically.  The process
 
19 recognizes that line-level agencies are most familiar with both
 
20 the nature of the services needed and what it takes to provide
 
21 them, and leaves it to them to determine whether public agencies
 
22 or contractors should provide needed services.  Contracts with
 

 
 
 
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 1 providers selected by agency determinations made pursuant to the
 
 2 process are valid as a matter of law and cannot be challenged as
 
 3 violative of the civil service or collective bargaining laws.  In
 
 4 addition, all provisions of all collective bargaining agreements
 
 5 entered into after the effective date of this Act by public
 
 6 employers and the exclusive collective bargaining representatives
 
 7 of public employees are required to be consistent with the
 
 8 process for managed competition established by this Act.
 
 9      Although this Act sets up a single process for managed
 
10 competition that all state and county agencies must follow, it
 
11 specifies a decentralized scheme for implementing and supporting
 
12 the process' requirements.  The State and each of its counties
 
13 are authorized and responsible for establishing the support
 
14 structures for the process:  a system for identifying and
 
15 quantifying the costs associated with providing the services
 
16 government needs or is required to provide in-house; standards of
 
17 performance and other objective measures of accountability for
 
18 maintaining efficiencies and economies; mechanisms to encourage
 
19 management and employee collaboration; and employee training,
 
20 retraining, reassignments, reorganization, and benefit programs
 
21 and procedures.
 
22      The process neither requires nor prohibits public employee
 

 
 
 
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                                     H.B. NO.           
                                                        
                                                        

 
 1 layoffs.  It recognizes that efficiencies and economies may
 
 2 require the release of public employees but leaves it to each
 
 3 jurisdiction to determine whether public employees will be laid
 
 4 off.
 
 5      It is understood that structures and organization to support
 
 6 the process need to be developed and that it may be necessary to
 
 7 make technical revisions to procurement and other laws to assure
 
 8 that existing laws do not contradict or undermine the process or
 
 9 the provisions of this Act.
 
10      Finally, the provisions of this Act are effective upon
 
11 approval.  However, to avoid impairment of contract challenges
 
12 under the federal constitution, state and county agencies may use
 
13 the process for managed competition during the term of any
 
14 collective bargaining agreement in effect at the time the act is
 
15 approved, only if the process' use is consistent with the
 
16 provisions of all applicable collective bargaining agreements.
 
17      SECTION 2.  The Hawaii Revised Statutes are amended by
 
18 adding a new chapter to be appropriately designated and to read
 
19 as follows:
 
20                             "CHAPTER
 
21                  PROCESS FOR MANAGED COMPETITION
 
22      §   -1  Purpose.  The purpose of this chapter is to make
 

 
 
 
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                                     H.B. NO.           
                                                        
                                                        

 
 1 government operations more efficient and economical by
 
 2 establishing a managed competition process which in the first
 
 3 instance encourages government agencies to maximize the
 
 4 efficiency and economy of their operations, but also permits them
 
 5 to acquire services from contractors without violating civil
 
 6 service and collective bargaining laws when additional economies
 
 7 and efficiencies can be achieved by contracting with the private
 
 8 sector.
 
 9      The process is premised on the assumption that efficiencies
 
10 and economies are more likely to be realized when:
 
11      (1)  Public agencies are permitted to choose between
 
12           securing the services they need or are required to
 
13           perform from the public or private sector; and
 
14      (2)  The public and private sectors are given the
 
15           opportunity to compete against each other to provide or
 
16           deliver those services.
 
17 To achieve efficiencies and economies, agencies must be permitted
 
18 to determine on an individualized basis whether services they
 
19 need are best performed in- or out-of-house.
 
20      The process for managed competition is intended to further
 
21 the following interests:
 
22      (1)  Agency self-assessment to improve efficiencies and
 

 
 
 
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 1           economies, and reduce the cost of government;
 
 2      (2)  Competition between public employees and the private
 
 3           sector to secure the services government needs or is
 
 4           required to provide or perform;
 
 5      (3)  Reasoned decision making; and
 
 6      (4)  Public-private partnerships.
 
 7      §   -2  Establishment of process for managed competition;
 
 8 exceptions.(a)  There is established a process for managed
 
 9 competition that state and county agencies shall use to obtain
 
10 the services they need or are required to provide.  The process
 
11 for managed competition shall consist of:
 
12      (1)  Agency determinations made at least annually with
 
13           contributions from agency employees, to identify
 
14           whether services an agency needs or is required to
 
15           provide are performed more efficiently and economically
 
16           in-house by public employees or out-of-house by
 
17           contractors;
 
18      (2)  Agency formulation of objective performance
 
19           specifications and evaluation criteria for selecting a
 
20           service provider competitively; and
 
21      (3)  Selection of a service provider from among public
 
22           agency and private sector participants, utilizing the
 

 
 
 
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 1           specifications and criteria developed pursuant to
 
 2           subsection (a)(2), and the procurement procedures of
 
 3           chapter 103D or 103F.
 
 4      (b)  To maximize the effectiveness of the process for
 
 5 managed competition, and to allow state and county agencies to
 
 6 realize the efficiencies and economies the process is designed to
 
 7 help them achieve,
 
 8      (1)  The directors of finance of the State and each of the
 
 9           counties shall:
 
10           (A)  Establish a single, uniform system which all
 
11                agencies within their respective jurisdictions
 
12                shall use to identify, analyze, assign, and
 
13                quantify relevant costs attendant to using public
 
14                employees to perform the services an agency needs
 
15                or is required to provide;
 
16           (B)  Specify the amounts of those direct and indirect
 
17                costs that are common to all agencies within their
 
18                respective jurisdictions that the agencies shall
 
19                use to measure efficiencies and economies under
 
20                subsection (a)(1) and (3); and
 
21           (C)  Prescribe performance standards and quality
 
22                measures and procedures to monitor the
 

 
 
 
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                                     H.B. NO.           
                                                        
                                                        

 
 1                effectiveness of agency determinations to use
 
 2                agency employees or private contractors to perform
 
 3                the services an agency needs.
 
 4      (2)  The State and each of the counties may use the layoff
 
 5           provisions of the civil service laws and the respective
 
 6           collective bargaining contracts to release employees
 
 7           displaced from their positions by the process for
 
 8           managed competition.  Prior to implementing any layoff
 
 9           provision of the civil service laws or a collective
 
10           bargaining contract, the State and each of the counties
 
11           shall use their resources for placing, retraining, and
 
12           providing voluntary severance incentives for displaced
 
13           employees.  Resources that may be used to minimize or
 
14           avoid the adverse effects of an agency's decision to
 
15           secure needed services from contractors may include:
 
16           (A)  Coordination with the private service provider
 
17                awarded the contract under subsection (a)(3) to
 
18                continue a displaced employee's employment as an
 
19                employee of the contractor;
 
20           (B)  Reassignment to another position the employee is
 
21                qualified to fill;
 
22           (C)  Retraining to qualify the employee for
 

 
 
 
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                                     H.B. NO.           
                                                        
                                                        

 
 1                reassignment; and
 
 2           (D)  Severance incentives;
 
 3      (3)  Agencies, employees, and exclusive collective
 
 4           bargaining representatives may propose alternatives for
 
 5           performing or providing services an agency needs or is
 
 6           required to perform more efficiently and economically.
 
 7           Proposals must be made in writing.  Agency and employee
 
 8           proposals shall be submitted to all affected exclusive
 
 9           collective bargaining representatives, and proposals
 
10           from exclusive collective bargaining representatives
 
11           shall be submitted to all affected agencies.  Agencies,
 
12           employees, and the employees' exclusive collective
 
13           bargaining representatives shall be available to
 
14           discuss proposals.  All discussions shall be completed
 
15           in forty-five working days after receipt of a written
 
16           proposal by the agency or the exclusive collective
 
17           bargaining representative, unless the time limit is
 
18           mutually extended.  Upon completion of these
 
19           discussions, alternatives proposed and discussed and
 
20           the costs associated with each shall be considered by
 
21           the agency in determining whether needed services will
 
22           be provided in- or out-of-house; and
 

 
 
 
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 1      (4)  On an on-going basis, agencies are encouraged to
 
 2           regularly identify and monitor costs, establish
 
 3           performance and quality standards to measure
 
 4           efficiencies and economies, and make reasonable
 
 5           efforts, including competitiveness collaboration and
 
 6           training, job skills retraining, reorganizing the
 
 7           workforce, and revising procedures, to enhance the
 
 8           ability of employees to compete, enhance in-house
 
 9           effectiveness and efficiency, and generally modernize
 
10           agency operations.
 
11      (c)  The process for managed competition established by this
 
12 section need not be used to obtain a service an agency needs or
 
13 is required to provide, if a statute, county charter or
 
14 ordinance, or administrative rule authorizes the service to be
 
15 performed or provided by non-civil servants including
 
16 contractors, or by persons holding positions exempt from the
 
17 civil service.
 
18      §   -3 Managed competition determinations.(a)  Each state
 
19 and county agency shall have exclusive and sole discretion to
 
20 determine whether a service it needs or is required to provide
 
21 will be performed by its employees, or obtained from other public
 
22 agencies or private contractors.  In making this determination,
 

 
 
 
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                                     H.B. NO.           
                                                        
                                                        

 
 1 the agency should consider:
 
 2      (1)  The nature of the service the agency needs, including
 
 3           whether the service is self-contained or part of a
 
 4           larger service delivery system, geographically
 
 5           dispersed, a core or ancillary government service, or
 
 6           one for which in-house resources are available or
 
 7           needed; and whether government control is necessary,
 
 8           government accountability can be shared, or
 
 9           government's authority will be diluted;
 
10      (2)  The potential for achieving cost savings, including the
 
11           need to abandon or repurchase capital improvements or
 
12           equipment that are not fully depreciated, the extent to
 
13           which the service is available in the private sector
 
14           marketplace, the extent to which federal or state
 
15           restrictions may reduce interest in competing to
 
16           provide or perform the needed or required service;
 
17      (3)  Impact upon existing employees;
 
18      (4)  The extent to which the services that are needed or
 
19           required, and the criteria to select a service provider
 
20           competitively can be described in objective
 
21           specifications; and
 
22      (5)  The risk of contract breaches, default, or cost
 

 
 
 
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 1           overruns; and complications attendant to transferring
 
 2           and resuming operations at the start and end of a
 
 3           contract.
 
 4      (b)  Agency employees may develop and make recommendations
 
 5 to improve the way they perform the services an agency needs or
 
 6 is required to provide.  These recommendations shall be
 
 7 considered by the agency in identifying and determining which
 
 8 services are more efficiently and economically performed in-house
 
 9 or out-of-house under section    -2.  Agencies shall also utilize
 
10 the costs assigned by the director of finance of their respective
 
11 jurisdictions to make the determinations described in this
 
12 section and section    -2.  In addition, agencies shall use their
 
13 resources for placing, retraining, and providing incentives for
 
14 voluntary severance before any layoff provision of the civil
 
15 service law or a collective bargaining contract is applied.
 
16      (c)  An agency's determination shall be final and no suit
 
17 may be brought under any law, including the laws relating to
 
18 civil service, collective bargaining, public contracts, or
 
19 procurement, to challenge an agency's determination once a
 
20 determination is made."
 
21      SECTION 3.  Section 46-33, Hawaii Revised Statutes, is
 
22 amended to read as follows:
 

 
 
 
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                                     H.B. NO.           
                                                        
                                                        

 
 1      "§46-33  Exemption of certain county positions.  In any
 
 2 county with a population of 500,000 or more, the civil service to
 
 3 which this section refers is comprised of all positions in the
 
 4 public service of [such] that county, now existing or hereafter
 
 5 established, and embraces all personal services performed for
 
 6 such county, except the following:
 
 7      (1)  Positions of officers elected by public vote; positions
 
 8           of heads of departments; position of the clerk;
 
 9           position of the manager of the board of water supply
 
10           and position of the chief of police[.];
 
11      (2)  Positions in the office of mayor, but such positions,
 
12           except those of the heads of the offices of information
 
13           and complaint and budget director, shall be included in
 
14           the position classification plan.  Employees of the
 
15           municipal library and of the offices of information and
 
16           complaint and budget director, other than the heads of
 
17           such offices, however, shall not be exempted from civil
 
18           service[.];
 
19      (3)  Positions of deputies of the corporation counsel,
 
20           deputies of the prosecuting attorney, and law
 
21           clerks[.];
 
22      (4)  Positions of members of any board, commission, or
 

 
 
 
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                                     H.B. NO.           
                                                        
                                                        

 
 1           equivalent body[.];
 
 2      (5)  Positions filled by inmates, patients, or students in
 
 3           city institutions or in the schools[.];
 
 4      (6)  Positions of district magistrates, jurors, and
 
 5           witnesses[.];
 
 6      (7)  Personal services obtained by contract where the
 
 7           director of civil service has certified that the
 
 8           service is special or unique, is essential to the
 
 9           public interest and that, because of circumstances
 
10           surrounding its fulfillment, personnel to perform such
 
11           service cannot be obtained through normal civil service
 
12           recruitment procedures.  Any such contract may be for
 
13           any period not exceeding one year[.];
 
14      (8)  Personal services of a temporary nature needed in the
 
15           public interest where the need for the same does not
 
16           exceed ninety days, but before any person may be
 
17           employed to render such temporary service the director
 
18           of civil service shall certify that the service is of a
 
19           temporary nature and that recruitment through normal
 
20           civil service recruitment procedures is not
 
21           practicable.  The employment of any person for service
 
22           of a temporary nature may be extended for good cause
 

 
 
 
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                                     H.B. NO.           
                                                        
                                                        

 
 1           for an additional period not to exceed ninety days upon
 
 2           similar certification by the director subject to
 
 3           approval of the civil service commission[.];
 
 4      (9)  Personal services performed on a fee, contract or
 
 5           piecework basis by persons who may lawfully perform
 
 6           their duties concurrently with their private business
 
 7           or profession or other private employment, if any, and
 
 8           whose duties require only a portion of their time,
 
 9           where it is impracticable to ascertain or anticipate
 
10           the portion of time devoted to the service of the city
 
11           and such fact is certified to by the director of civil
 
12           service[.];
 
13     (10)  Positions of temporary election clerks in the office of
 
14           the clerk employed during the election periods, but the
 
15           positions filled by such employees shall be included in
 
16           the position classification plan[.];
 
17     (11)  Positions of one first deputy and private secretaries
 
18           to heads of departments and their first deputies, but
 
19           private secretarial positions shall be included in the
 
20           position classification plan.  The first deputy in the
 
21           department of civil service, however, shall not be
 
22           exempt from civil service[.]; and
 

 
 
 
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                                     H.B. NO.           
                                                        
                                                        

 
 1     (12)  Services provided pursuant to contracts for the
 
 2           construction of capital improvement projects authorized
 
 3           by the capital budget and program enactments of the
 
 4           county legislative body.
 
 5 The director of civil service shall determine the applicability
 
 6 of this section to specific positions."
 
 7      SECTION 4.  Section 76-16, Hawaii Revised Statutes, is
 
 8 amended to read as follows:
 
 9      "§76-16  Civil service and exemptions.  The civil service to
 
10 which this part applies shall comprise all positions in the State
 
11 now existing or hereafter established and embrace all personal
 
12 services performed for the State, except the following:
 
13      (1)  Commissioned and enlisted personnel of the Hawaii
 
14           national guard as such, and positions in the Hawaii
 
15           national guard that are required by state or federal
 
16           laws or regulations or orders of the national guard to
 
17           be filled from those commissioned or enlisted
 
18           personnel;
 
19      (2)  Positions filled by persons employed by contract where
 
20           the director of human resources development has
 
21           certified that the service is special or unique or is
 
22           essential to the public interest and that, because of
 

 
 
 
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                                     H.B. NO.           
                                                        
                                                        

 
 1           circumstances surrounding its fulfillment, personnel to
 
 2           perform the service cannot be obtained through normal
 
 3           civil service recruitment procedures.  Any such
 
 4           contract may be for any period not exceeding one year;
 
 5      (3)  Positions of a temporary nature needed in the public
 
 6           interest where the need for the position does not
 
 7           exceed one year, but before any person may be employed
 
 8           to render the temporary service, the director shall
 
 9           certify that the service is of a temporary nature and
 
10           that recruitment through normal civil service
 
11           recruitment procedures is not practicable;
 
12      (4)  Positions filled by the legislature or by either house
 
13           or any committee thereof;
 
14      (5)  Employees in the office of the governor and household
 
15           employees at Washington Place;
 
16      (6)  Positions filled by popular vote;
 
17      (7)  Department heads, officers, and members of any board,
 
18           commission, or other state agency whose appointments
 
19           are made by the governor or are required by law to be
 
20           confirmed by the senate;
 
21      (8)  Judges, referees, receivers, masters, jurors, notaries
 
22           public, land court examiners, court commissioners, and
 

 
 
 
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 1           attorneys appointed by a state court for a special
 
 2           temporary service;
 
 3      (9)  One bailiff for the chief justice of the supreme court
 
 4           who shall have the powers and duties of a court officer
 
 5           and bailiff under section 606-14; one secretary or
 
 6           clerk for each justice of the supreme court, each judge
 
 7           of the intermediate appellate court, and each judge of
 
 8           the circuit court; one secretary for the judicial
 
 9           council; one deputy administrative director of the
 
10           courts; three law clerks for the chief justice of the
 
11           supreme court, two law clerks for each associate
 
12           justice of the supreme court and each judge of the
 
13           intermediate appellate court, one law clerk for each
 
14           judge of the circuit court, two additional law clerks
 
15           for the civil administrative judge of the circuit court
 
16           of the first circuit, two additional law clerks for the
 
17           criminal administrative judge of the circuit court of
 
18           the first circuit, one additional law clerk for the
 
19           senior judge of the family court of the first circuit,
 
20           two additional law clerks for the civil motions judge
 
21           of the circuit court of the first circuit, two
 
22           additional law clerks for the criminal motions judge of
 

 
 
 
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                                     H.B. NO.           
                                                        
                                                        

 
 1           the circuit court of the first circuit, and two law
 
 2           clerks for the administrative judge of the district
 
 3           court of the first circuit; and one private secretary
 
 4           for the administrative director of the courts, the
 
 5           deputy administrative director of the courts, each
 
 6           department head, each deputy or first assistant, and
 
 7           each additional deputy, or assistant deputy, or
 
 8           assistant defined in paragraph (16);
 
 9     (10)  First deputy and deputy attorneys general, the
 
10           administrative services manager of the department of
 
11           the attorney general, one secretary for the
 
12           administrative services manager, an administrator and
 
13           any support staff for the criminal and juvenile justice
 
14           resources coordination functions, and law clerks;
 
15     (11)  Teachers, principals, vice-principals, district
 
16           superintendents, chief deputy superintendents, other
 
17           certificated personnel, and not more than twenty
 
18           noncertificated administrative, professional, and
 
19           technical personnel not engaged in instructional work
 
20           in the department of education, the special assistant
 
21           to the state librarian, one secretary for the special
 
22           assistant to the state librarian, and members of the
 

 
 
 
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                                     H.B. NO.           
                                                        
                                                        

 
 1           faculty of the University of Hawaii, including research
 
 2           workers, extension agents, personnel engaged in
 
 3           instructional work, and administrative, professional,
 
 4           and technical personnel of the university;
 
 5     (12)  Employees engaged in special, research, or
 
 6           demonstration projects approved by the governor;
 
 7     (13)  Positions filled by inmates, kokuas, patients of state
 
 8           institutions, persons with severe physical or mental
 
 9           handicaps participating in the work experience training
 
10           programs, and students and positions filled through
 
11           federally funded programs that provide temporary public
 
12           service employment such as the federal Comprehensive
 
13           Employment and Training Act of 1973;
 
14     (14)  A custodian or guide at Iolani Palace, the Royal
 
15           Mausoleum, and Hulihee Palace;
 
16     (15)  Positions filled by persons employed on a fee,
 
17           contract, or piecework basis, who may lawfully perform
 
18           their duties concurrently with their private business
 
19           or profession or other private employment and whose
 
20           duties require only a portion of their time, if it is
 
21           impracticable to ascertain or anticipate the portion of
 
22           time to be devoted to the service of the State;
 

 
 
 
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                                     H.B. NO.           
                                                        
                                                        

 
 1     (16)  Positions of first deputies or first assistants of each
 
 2           department head appointed under or in the manner
 
 3           provided in section 6, Article V, of the State
 
 4           Constitution; three additional deputies or assistants
 
 5           either in charge of the highways, harbors, and airports
 
 6           divisions or other functions within the department of
 
 7           transportation as may be assigned by the director of
 
 8           transportation, with the approval of the governor; four
 
 9           additional deputies in the department of health, each
 
10           in charge of one of the following:  behavioral health,
 
11           environmental health, hospitals, and health resources
 
12           administration, including other functions within the
 
13           department as may be assigned by the director of
 
14           health, with the approval of the governor; an
 
15           administrative assistant to the state librarian; and an
 
16           administrative assistant to the superintendent of
 
17           education;
 
18     (17)  Positions specifically exempted from this part by any
 
19           other law; provided that all of the positions defined
 
20           by paragraph (9) shall be included in the position
 
21           classification plan;
 
22     (18)  Positions in the state foster grandparent program and
 

 
 
 
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                                     H.B. NO.           
                                                        
                                                        

 
 1           positions for temporary employment of senior citizens
 
 2           in occupations in which there is a severe personnel
 
 3           shortage or in special projects;
 
 4     (19)  Household employees at the official residence of the
 
 5           president of the University of Hawaii;
 
 6     (20)  Employees in the department of education engaged in the
 
 7           supervision of students during lunch periods and in the
 
 8           cleaning of classrooms after school hours on a less
 
 9           than half-time basis;
 
10     (21)  Employees hired under the tenant hire program of the
 
11           housing and community development corporation of
 
12           Hawaii; provided that not more than twenty-six per cent
 
13           of the corporation's work force in any housing project
 
14           maintained or operated by the corporation shall be
 
15           hired under the tenant hire program;
 
16     (22)  Positions of the federally funded expanded food and
 
17           nutrition program of the University of Hawaii that
 
18           require the hiring of nutrition program assistants who
 
19           live in the areas they serve;
 
20     (23)  Positions filled by severely handicapped persons who
 
21           are certified by the state vocational rehabilitation
 
22           office that they are able to perform safely the duties
 

 
 
 
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                                     H.B. NO.           
                                                        
                                                        

 
 1           of the positions;
 
 2     (24)  One public high school student to be selected by the
 
 3           Hawaii state student council as a nonvoting member on
 
 4           the board of education as authorized by the State
 
 5           Constitution;
 
 6     (25)  Sheriff, first deputy sheriff, and second deputy
 
 7           sheriff; [and]
 
 8     (26)  A gender and other fairness coordinator hired by the
 
 9           judiciary[.]; and
 
10     (27)  Services provided pursuant to contracts for the
 
11           construction of capital improvement projects authorized
 
12           by the legislature.
 
13      The director shall determine the applicability of this
 
14 section to specific positions.
 
15      Nothing in this section shall be deemed to affect the civil
 
16 service status of any incumbent as it existed on July 1, 1955."
 
17      SECTION 5.  Section 76-77, Hawaii Revised Statutes, is
 
18 amended to read as follows:
 
19      "§76-77  Civil service and exemptions.  The civil service to
 
20 which this part applies comprises all positions in the public
 
21 service of each county, now existing or hereafter established,
 
22 and embraces all personal services performed for each county,
 

 
 
 
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                                     H.B. NO.           
                                                        
                                                        

 
 1 except the following:
 
 2      (1)  Positions in the office of the mayor; provided that the
 
 3           positions shall be included in the position
 
 4           classification plan;
 
 5      (2)  Positions of officers elected by public vote, positions
 
 6           of heads of departments, and positions of one first
 
 7           deputy or first assistant of heads of departments;
 
 8      (3)  Positions of deputy county attorneys, deputy
 
 9           corporation counsel, deputy prosecuting attorneys, and
 
10           law clerks;
 
11      (4)  Positions of members of any board, commission, or
 
12           agency;
 
13      (5)  Positions filled by students; positions filled through
 
14           federally funded programs which provide temporary
 
15           public service employment such as the federal
 
16           Comprehensive Employment and Training Act of 1973; and
 
17           employees engaged in special research or demonstration
 
18           projects approved by the mayor, for which projects
 
19           federal funds are available;
 
20      (6)  Positions of district judges, jurors, and witnesses;
 
21      (7)  Positions filled by persons employed by contract where
 
22           the personnel director has certified and where the
 

 
 
 
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                                     H.B. NO.           
                                                        
                                                        

 
 1           certification has received the approval of the
 
 2           commission that the service is special or unique, is
 
 3           essential to the public interest, and that because of
 
 4           the circumstances surrounding its fulfillment,
 
 5           personnel to perform the service cannot be recruited
 
 6           through normal civil service procedures; provided that
 
 7           no contract pursuant to this paragraph shall be for any
 
 8           period exceeding one year;
 
 9      (8)  Positions of a temporary nature needed in the public
 
10           interest where the need does not exceed ninety days;
 
11           provided that before any person may be employed to
 
12           render temporary service pursuant to this paragraph,
 
13           the director shall certify that the service is of a
 
14           temporary nature and that recruitment through normal
 
15           civil service recruitment procedures is not
 
16           practicable; and provided further that the employment
 
17           of any person pursuant to this paragraph may be
 
18           extended for good cause for an additional period not to
 
19           exceed ninety days upon similar certification by the
 
20           director and approval of the commission;
 
21      (9)  Positions of temporary election clerks in the office of
 
22           the county clerk employed during election periods;
 

 
 
 
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 1     (10)  Positions specifically exempted from this part by any
 
 2           other state statutes;
 
 3     (11)  Positions of one private secretary for each department
 
 4           head; provided that the positions shall be included in
 
 5           the position classification plan;
 
 6     (12)  Positions filled by persons employed on a fee,
 
 7           contract, or piecework basis who may lawfully perform
 
 8           their duties concurrently with their private business
 
 9           or profession or other private employment, if any, and
 
10           whose duties require only a portion of their time,
 
11           where it is impracticable to ascertain or anticipate
 
12           the portion of time devoted to the service of the
 
13           county and that fact is certified by the director;
 
14     (13)  Positions filled by persons with a severe disability
 
15           who are certified by the state vocational
 
16           rehabilitation office as able to safely perform the
 
17           duties of the positions;
 
18     (14)  Positions of the housing and community development
 
19           office or department of each county; provided that this
 
20           exemption shall not preclude each county from
 
21           establishing these positions as civil service
 
22           positions; [and]
 

 
 
 
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 1     (15)  The following positions in the office of the
 
 2           prosecuting attorney:  private secretary to the
 
 3           prosecuting attorney, secretary to the first deputy
 
 4           prosecuting attorney, and administrative or executive
 
 5           assistants to the prosecuting attorney; provided that
 
 6           the positions shall be included in the position
 
 7           classification plan[.]; and
 
 8     (16)  Services provided pursuant to contracts for the
 
 9           construction of capital improvement projects authorized
 
10           by the capital budget and program enactments of the
 
11           county legislative body.
 
12      The director shall determine the applicability of this
 
13 section to specific positions and shall determine whether or not
 
14 positions excluded by paragraphs (7) and (8) shall be included in
 
15 the position classification plan.
 
16      Nothing in this section shall be deemed to affect the civil
 
17 service status of any incumbent private secretary of a department
 
18 head who held that position on May 7, 1977."
 
19      SECTION 6.  Section 89-19, Hawaii Revised Statutes, is
 
20 amended to read as follows:
 
21      "§89-19  Chapter takes precedence, when.  [This] (a)  Except
 
22 as provided in subsection (b), this chapter shall take precedence
 

 
 
 
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 1 over all conflicting statutes concerning this subject matter and
 
 2 shall preempt all contrary local ordinances, executive orders,
 
 3 legislation, or rules adopted by the State, a county, or any
 
 4 department or agency thereof, including the departments of human
 
 5 resources development or of personnel services or the civil
 
 6 service commission.
 
 7      (b)  All provisions of all collective bargaining agreements
 
 8 entered into pursuant to this chapter after the effective date of
 
 9 Act    , Session Laws of Hawaii 2000, shall be consistent with
 
10 the process for managed competition established in chapter    ."
 
11      SECTION 7.  The State and the several counties shall develop
 
12 the cost system, performance and quality standards, employee
 
13 collaboration, competitiveness training, employee reassignment
 
14 and retraining, incentive programs, and procedures necessary to
 
15 support the process for managed competition established by this
 
16 Act.
 
17      SECTION 8.  Until all collective bargaining agreements in
 
18 effect when the governor approves this measure expire by their
 
19 own terms, state and county agency determinations made pursuant
 
20 to the chapter added to the Hawaii Revised Statutes by section 2
 
21 of this Act may be made only if they are consistent with the
 
22 provisions of all applicable collective bargaining agreements.
 

 
 
 
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 1      SECTION 9.  Statutory material to be repealed is bracketed.
 
 2 New statutory material is underscored.
 
 3      SECTION 10.  This Act shall take effect upon its approval.
 
 4 
 
 5                    INTRODUCED BY: _______________________________
 
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