Creates an office of the ombudsman for prisons and probation to be administratively attached to DPS to investigate prisoner complaints, deaths, and riots.

A BILL FOR AN ACT

SECTION 1. Chapter 353C, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part

§353C-A Definitions. As used in this part:

"Act" means any practice or procedure of the department or any act or omission of an employee. "Act" does not include any decision made by a court or the paroling authority.

"Employee" means any person employed or contracted by the department of public safety, including probation officers and community correctional center, correctional facility, or institution; out-of-state community correctional center, correctional facility, or institution; or any other facility used to house a person committed to the custody of the director of public safety.

"Office" means the office of the ombudsman for prisoners.

"Serious bodily injury" means bodily injury that creates a substantial risk of death or causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

§353C-B Ombudsman for prisoners. (a) There is established within the department, for administration purposes only, the office of the ombudsman for prisons and probation. The governor shall nominate and, with the advice and consent of the senate, appoint an ombudsman without regard to chapters 76 and 78.

(b) No person may serve as ombudsman within two years of the last day on which the person served as a member of the legislature, or while the person is a candidate for or holds any other state office, or while the person is engaged in any other occupation for reward or profit. The salary of the ombudsman shall be the same as the salary of the ombudsman under chapter 96. The salary of the ombudsman shall not be diminished during the ombudsman's term of office, unless by general law applying to all salaried officers of the State.

If the ombudsman dies, resigns, becomes ineligible to serve, or is removed or suspended from office, the first assistant to the ombudsman becomes the acting ombudsman until a new ombudsman is appointed for a full term.

§353C-C Assistance, staff, delegation, funding. The ombudsman shall appoint a first assistant and other officers and employees as may be necessary to carry out this part. All employees, including the first assistant, shall be hired by the ombudsman and shall serve at the ombudsman's pleasure. In determining the salary of each employee, the ombudsman shall consult with the department of human resources development and shall follow as closely as possible the recommendations of the department. The first assistant's salary shall be not more than eighty-seven per cent of the salary of the ombudsman. The ombudsman and the ombudsman's full-time staff shall be entitled to participate in any employee benefit plan.

The ombudsman may delegate to the ombudsman's appointees any of the ombudsman's duties except those specified in sections 353C-L and 353C-M; provided that during the absence of the ombudsman from the island of Oahu, or the ombudsman's temporary inability to exercise and discharge the powers and duties of the ombudsman's office, the powers and duties as contained in sections 353C-L and 353C-M shall devolve upon the first assistant during the ombudsman's absence or inability.

§353C-D Procedure. The ombudsman may establish procedures for receiving and processing complaints, conducting investigations, and reporting the ombudsman's findings. However, the ombudsman may not levy fees for the submission of investigations.

§353C-E Jurisdiction. The ombudsman has jurisdiction to investigate the acts of any employee and may exercise the ombudsman's power without regard to the finality of any act in question.

§353C-F Investigation of complaints. (a) The ombudsman may investigate any complaint which the ombudsman determines to be an appropriate subject for investigation under section 353C-H, including complaints submitted by a person held in custody by the department or the person's family member.

(b) The ombudsman may investigate on the ombudsman's own initiative if the ombudsman reasonably believes that an appropriate subject for investigation under section 353C-H exists.

§353C-G Notice to complainant and agency. If the ombudsman decides not to investigate, the ombudsman shall inform the complainant of that decision and shall state reasons for that decision.

If the ombudsman decides to investigate, the ombudsman shall notify the complainant of the decision and shall also notify the department of the intention to investigate.

§353C-H Subjects for investigation. (a) An appropriate subject for investigation is an act against a prisoner complained of by the prisoner, the prisoner's immediate family, or the department that is:

(b) The ombudsman shall investigate any incident where a death or riot occurred or a prisoner sustained serious bodily injuries as a result of actions taken by an employee or another person held in custody.

§353C-I Investigation procedures. (a) In an investigation, the ombudsman may make inquiries and obtain information as the ombudsman in the exercise of reasonable discretion deems appropriate; enter and inspect the premises of the department or any facility, center, or institution; conduct private interviews and meetings; and examine witnesses under oath.

(b) The ombudsman is required to maintain secrecy in respect to all matters and the identities of the complainants or witnesses coming before the ombudsman except so far as disclosures may be necessary to enable the ombudsman to carry out the ombudsman's duties and to support the ombudsman's recommendations.

§353C-J Powers. Subject to the privileges which witnesses have in the courts of this State, the ombudsman may:

The ombudsman may bring suit in an appropriate state court to enforce these powers.

§353C-K Procedure after investigation. If, after investigation, the ombudsman finds that:

the ombudsman shall report the ombudsman's opinion and recommendations to the department. The department shall notify the ombudsman, within thirty days, of the action taken on the ombudsman's recommendations.

§353C-L Publication of recommendations. After a reasonable time has elapsed, the ombudsman may present the ombudsman's opinion and recommendations to one or more of the following: the governor, the legislature, or the public. The ombudsman shall include with this opinion any reply made by the department.

§353C-M Notice to the complainant. After a reasonable time has elapsed, the ombudsman shall notify the complainant of the actions taken by the ombudsman and by the department.

§353C-N Misconduct by department personnel and contractors. If the ombudsman has a reasonable basis to believe that there may be a breach of duty or misconduct by any officer or employee of the department, or by any person or entity with whom the department has a contract, the ombudsman may refer the matter to the appropriate authorities without notice to that person.

§353C-O Annual report. The ombudsman shall submit to the governor, the legislature, and the public an annual report discussing the ombudsman's activities under this chapter.

§353C-P Judicial review, immunity. No proceeding or decision of the ombudsman may be reviewed in any court, unless it contravenes the provisions of this chapter. The ombudsman has the same immunities from civil and criminal liability as a judge of this State. The ombudsman and the ombudsman's staff shall not testify in any court with respect to matters coming to their attention in the exercise or purported exercise of their official duties except as may be necessary to enforce the provisions of this chapter.

§353C-Q Letters from the ombudsman. A letter to the ombudsman from a person held in custody by the department shall be forwarded immediately, unopened, to the ombudsman.

§353C-R Penalty for obstruction. A person who willfully hinders the lawful actions of the ombudsman or the ombudsman's staff or willfully refuses to comply with their lawful demands, shall be fined not more than $1,000."

SECTION 2. Section 96-1, Hawaii Revised Statutes, is amended by amending the definition of "agency" to read as follows:

""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:

SECTION 3. In codifying the new sections added by section 1 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

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.