CONFERENCE COMMITTEE REPORT NO.112

                            Honolulu, Hawaii
                                            , 2000

                            RE:   S.B. No. 539
                                  S.D. 1
                                  H.D. 1
                                  C.D. 1




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

Honorable Calvin K.Y. Say
Speaker, House of Representatives
Twentieth State Legislature
Regular Session of 2000
State of Hawaii

Sir:

     Your Committee on Conference on the disagreeing vote of the
Senate to the amendments proposed by the House of Representatives
in S.B. No. 539, S.D. 1, H.D. 1, entitled:  

     "A BILL FOR AN ACT PROPOSING AN AMENDMENT TO ARTICLE X,
     SECTION 6, OF THE HAWAII CONSTITUTION, TO PROVIDE THE
     UNIVERSITY OF HAWAII WITH AUTONOMY IN ALL MATTERS RELATED TO
     THE UNIVERSITY," 

having met, and after full and free discussion, has agreed to
recommend and does recommend to the respective Houses the final
passage of this bill in an amended form.

     The purpose of this bill is to amend Article X, section 6 of
the Hawaii Constitution, to:

     (1)  Allow the University of Hawaii (University) to exercise
          greater internal control over the University by:

          (A)  Codifying many of the powers recently granted to
               the University through legislation; 


 
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          (B)  Providing that all internal structure, management,
               and operation decisions of the University are
               clearly the responsibility of the Board of
               Regents; and 

          (C)  Deleting the requirement that the Legislature
               first authorize the University to formulate policy
               and exercise control over the University before
               the University takes such action; and

     (2)  Reserve to the Legislature the exclusive jurisdiction
          to identify the laws of statewide concern, that the
          Legislature is currently empowered to enact.

     Your Committee on Conference finds that the Constitution
currently requires that before the Board of Regents of the
University can formulate policy or exercise control over the
University through its executive officer, legislation providing
and defining such powers must first be enacted. 

     The constitutional amendment proposed by this bill allows
the University to formulate policy and exercise control over its
internal operations without the Legislature first enacting
legislation to authorize such action.  The increasing complexity
of public higher education requires the University to be
responsive to the needs of the community on a timely basis, and
only autonomy over its internal affairs will allow the University
to accomplish this goal.  This measure will also enable the
University to be a major contributor to the economic development
of the State.  The experience in other regions of the country has
shown that a quality higher education system is an essential
element in any effort to successfully develop and sustain a
dynamic economy.

     Your Committee on Conference retained two amendments made to
this measure, both of which limit the scope and impact of this
constitutional amendment.

     First, your Committee on Conference makes special note of
the change in constitutional language from "The board shall have
exclusive jurisdiction over the internal organization and
management of the university" to "The board shall also have
exclusive jurisdiction over the internal structure, management,
and organization of the university".  This amendment is meant to
be stylistic only, and is not intended to reflect any substantive
change in the present constitutional provision.

     The second amendment makes clear that the Legislature shall
have exclusive jurisdiction to identify laws of statewide

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concern.  Such language is necessary because, if ratified, this
constitutional amendment will undoubtedly result in future
disputes and litigation, particularly when the Legislature enacts
a statute that is perceived to adversely impact the University.
A legislative determination that a law is of statewide concern
shall extinguish the controversy.

     The need to reserve the identification of laws of statewide
concern to the Legislature is necessary because the proposed
constitutional amendment is susceptible to misinterpretation.
The amendment's essential terms, i.e. "internal" and "statewide
concern," may be vague and overbroad.  This has already been
evidenced by the testimony presented at the hearings on this
measure.

     Testimony indicated that the amendment is necessary because
the University "is unable to make crucial decisions with respect
to those employed to work in the university system nor can the
Regents negotiate collective bargaining agreements covering the
various employment groups within the university system."  Such
testimony was presented notwithstanding House Standing Committee
Report No. 877-00 (noting that certain state employment laws are
of statewide concern) and the holdings in City & County v.
Ariyoshi, 67 Haw. 412 (1984) and Hawaii Government Employees'
Association v. County of Maui, 59 Haw. 65 (1978) (holding that
civil service and compensation matters are within the purview of
the legislature).

     The University will remain, as it is in the current law,
subject to laws of statewide concern, including, but not limited
to:

     (1)  The budgeting process of the Legislature;

     (2)  The Governor's ability to restrict funds;

     (3)  The Legislature's power to fund new initiatives
          concerning the University;

     (4)  The state employment laws found in Title 7, Hawaii
          Revised Statutes, (Civil Service/Collective
          Bargaining); and 

     (5)  Laws related to Hawaiian ceded land rights.

     Your Committee on Conference intends that this
constitutional amendment will memorialize the University's
existing statutory powers, without restricting the powers of the
Legislature in matters of statewide concern and without limiting

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the Governor's ability to restrict University funds.  In
addition, your Committee intends that this constitutional
amendment not preclude the Legislature's prerogative to fund or
not fund a specific University program.

     Your Committee has amended this measure by deleting the
July 1, 2050 effective date condition.

     As affirmed by the record of votes of the managers of your
Committee on Conference that is attached to this report, your
Committee on Conference is in accord with the intent and purpose
of S.B. No. 539, S.D. 1, H.D. 1, as amended herein, and
recommends that it pass Final Reading in the form attached hereto
as S.B. No. 539, S.D. 1, H.D. 1, C.D. 1.

                                   Respectfully submitted on
                                   behalf of the managers:

  ON THE PART OF THE HOUSE           ON THE PART OF THE SENATE




_____________________________     _______________________________
Rep. K. MARK TAKAI                Sen. DAVID Y. IGE
Co-Chair                          Co-Chair



_____________________________     _______________________________
Rep. SCOTT K. SAIKI               Sen. CAROL FUKUNAGA
Co-Chair                          Co-Chair



_____________________________     _______________________________
Rep. DWIGHT Y. TAKAMINE           Sen. ANDREW LEVIN
Co-Chair                          Co-Chair



                                  _______________________________
                                  Sen. AVERY B. CHUMBLEY
                                  Co-Chair

 
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