STAND. COM. REP. NO. 3345

                                   Honolulu, Hawaii
                                                     , 2000

                                   RE:  H.B. No. 2098
                                        H.D. 2
                                        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 H.B. No.
2098, H.D. 2, entitled: 

     "A BILL FOR AN ACT RELATING TO CRIMINAL HISTORY,"

begs leave to report as follows:

     The purpose of this bill, as received by your Committee, is
to allow private schools to obtain national criminal history
record information on persons seeking employment in positions
that place them in close proximity to children, and to require
that the Hawaii Criminal Justice Data Center and the Hawaii
Association of Independent Schools serve as conduits for the
transfer of such information.

     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.  Furthermore, your
Committee notes that the Federal Bureau of Investigation,
pursuant to Public Law 92-544, will only conduct criminal history
record checks if a state statute specifically authorizes a state
or local government agency to conduct such searches for the

 
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purposes of employment or licensing, and is approved by the U.S.
Attorney General.

     Your Committee is aware that during the 2000 Regular
Session, a number of bills were introduced, and requests were
made, to carve out additional exceptions for criminal history
record checks.  Your Committee would like to highlight a few for
discussion purposes:

DEPARTMENT OF HEALTH:

     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.  Your Committee finds that it
is imperative for the Department to require criminal history
record checks because of the increasing number of Felix v.
Cayetano Consent Decree clients to whom the Department must
provide services.

PRIVATE SCHOOLS:

     H.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 to children.  While your Committee
appreciates the efforts of the Hawaii Association of Independent
Schools and the Hawaii Criminal Justice Data Center, your
Committee believes that H.B. 2098, H.D. 2 is an attempt to
circumvent the federal requirements of Public Law 92-544 and may
jeopardize any future State of Hawaii requests for national
criminal history record check information.  Although your
Committee realizes that the legislature can mandate that private
schools conduct criminal history record checks on employment
applicants, the Federal Bureau of Investigations cannot be
compelled by this legislature to provide the requested
information.  Your Committee firmly believes that all children,
regardless of where they attend school, are entitled to a safe
learning environment.  Therefore, your Committee strongly urges
the private schools to require that all applicants submit the
results of their national criminal history check as a condition
of the application process as permitted under section 378-3, HRS.
Your Committee heard testimony from the Hawaii Association of
Independent Schools and the Hawaii Criminal Justice Data Center
that any individual can submit their fingerprints to the Federal
Bureau of Investigations for a criminal history record check, and
that the results are released directly to the individual. 
VOLUNTEERS WITH THE DEPARTMENT OF EDUCATION:

 
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     Your Committee notes that this committee, as well as the
Committee on Education and Technology, has received several
requests to:  mandate that the Department of Education conduct
criminal history record checks on persons who volunteer to
provide services to the schools; or, at a minimum to require the
Department of Education to access the sex offender registration
information and conduct a search on the volunteers.  Your
Committee notes that the Department of Education already has
direct access to the sex offender registration information by the
Hawaii Criminal Data Center and that a website is in the process
of being created to allow people more access to such information.
However, your Committee agrees that a formal policy should be
adopted and implemented by the Board of Education to address
these concerns.

     While your Committee recognizes that persons who were once
convicted of an offense and have subsequently been rehabilitated
deserve access to employment opportunities, your Committee also
recognizes that there are many other occupations where an
employer should be made aware of an applicant or employee's
criminal history, especially if the employee would work closely
with vulnerable populations.  Your Committee strongly believes
that a comprehensive review of the issue of criminal history
record checks, rather than imposing requirements in a piecemeal
fashion, is necessary to ensure fair and consistent application.
Therefore, your Committee does not seek to establish a statewide
policy at this time and intends that the contents of this measure
serve only as temporary solutions.

     Testimony in support of the intent of this measure was
submitted by the Department of the Attorney General, the Hawaii
Association of Independent Schools, and the Sex Abuse Treatment
Center.

     Upon further consideration, your Committee has amended this
measure by:

     (1)  Deleting all provisions requiring private schools to
          conduct criminal history records checks;

     (2)  Inserting provisions requiring the Department of Health
          to conduct criminal history records checks for
          employees, subcontractors, and providers who are in
          positions that necessitates direct contact with clients
          when providing non-witnessed direct medical, mental
          health, or substance abuse services;

     (3)  Inserting provisions requiring the Legislative
          Reference Bureau to conduct a study on criminal history

 
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          records checks, including a review of the legal
          ramifications of requiring such checks and a review of
          existing federal, state, and county requirements;

     (4)  Adding a provision that the Legislative Reference
          Bureau consider the special circumstances of private
          school employers when reviewing the manner in which
          employers may conduct criminal history record checks
          during the requested study;

     (5)  Inserting provisions requiring the Board of Education
          to adopt and implement a policy that requires the
          Department of Education to access the sex offender
          registration information and conduct a search for
          persons who volunteer to provide services to the
          schools; and

     (6)  Making technical, non-substantive changes for the
          purposes of clarity and style.

     As affirmed by the record of votes of the members of your
Committee on Judiciary that is attached to this report, your
Committee is in accord with the intent and purpose of H.B. No.
2098, H.D. 2, as amended herein, and recommends that it pass
Third Reading in the form attached hereto as H.B. No. 2098, H.D.
2, 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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