SB1139 SD1

PART I

SECTION 1. The legislature finds that the call for random drug testing for department of education employees has been recently renewed after the arrest on December 4, 2006, of two public middle school teachers for allegedly smoking marijuana before reporting for work. The issue first arose in October, 2006, after the arrest of a public high school teacher on charges of selling crystal methamphetamine. These cases are evidence of a possible drug abuse problem among public school employees that is more than isolated or aberrational.

An article in The Honolulu Advertiser of December 6, 2006, quotes the department of education as being committed to maintaining a drug-free workplace, and that drug screening is something the department may look into. Current law does not provide for compulsory drug testing for new department of education hires or for random drug screening. However, current law does provide for criminal history background checks.

The legislature finds that drug screening of department of education employees, including public library employees, when hired and random drug testing thereafter is appropriate. Teachers teach our children, who are innocent. The legislature believes that establishing a random drug screening program for department of education employees is in the public interest, promotes the safety of students, and would set an example by adults who influence the children most outside of the family.

The purpose of this part is to establish a random drug screening program for all department of education and public library employees.

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

"§302A‑ Employees of the department and teacher trainees in any public school; random substance abuse testing; employee assistance. (a) The department, including the Hawaii state public library system, shall develop procedures for random substance abuse testing to obtain verifiable information regarding use of controlled substances under chapter 329, by persons who are employed or seeking employment in any position, including teacher trainees, that places them in close proximity to children. These procedures shall comply with chapter 329B.

Information obtained pursuant to this subsection shall be used exclusively by the employer or prospective employer for the purpose of determining whether a person is suitable for working in close proximity to children.

An employee who refuses to submit to drug testing under this subsection shall be placed on mandatory administrative leave of days.

(b) If the test results under subsection (a) are positive, the employer or prospective employer may refuse to employ, or may impose the following sanctions:

(1) Refuse to issue a teaching or other educational certificate;

(2) Revoke the teaching or other educational certificate;

(3) Refuse to allow or continue to allow participation in teacher training;

(4) Terminate the employment of any employee or deny employment to an applicant; or

(5) Impose other administrative sanctions, including but not limited to, administrative leave,

if the employer or prospective employer finds by reason of the nature and circumstances of the use of controlled substances that the person poses a risk to the health, safety, or well‑being of children, or otherwise negatively influences children by setting a detrimental example. Refusal to employ and sanctions under this subsection may occur only after appropriate investigation and notification to the employee or applicant for employment of the results and planned action, and after the employee or applicant for employment is given an opportunity to meet and rebut the finding. Nothing in this subsection shall abrogate any applicable appeal rights under chapter 76 or 89, or administrative rule of the department.

(c) In addition to the sanctions under subsection (b), the department, by adoption of rules pursuant to chapter 91, shall provide for substance abuse assessment, treatment, and counseling, and referral to the employee assistance program under subsection (e) if suitable, if the department determines to retain the employee; provided that evidence of clinical discharge from substance abuse treatment or substance abuse counseling shall be a prerequisite to continued employment.

(d) Notwithstanding any other law to the contrary, for purposes of this section, the department need not conduct investigations, notifications, or hearings under this section in accordance with chapter 91.

(e) The department shall establish an employee assistance program to provide help to employees of the department, including the Hawaii state public library system, who may have substance abuse problems that interfere with daily living and functioning in the work place. The employee assistance program shall be open to referrals made under subsection (c) and to other employees who voluntarily request to be in the program. The department may contract with a private provider of service for purposes of this subsection, or may utilize substance abuse services provided by the department of health.

(f) This section shall not apply to volunteers or other non‑remunerated personnel providing support services at individual schools or any employee subject to a substance abuse testing policy under a valid collective bargaining agreement."

SECTION 3. The department of education shall report to the legislature no later than twenty days prior to the convening of the regular sessions of 2008 and 2009 on the implementation of this Act, including but not limited to, costs of the testing, impediments to implementation, and recommendations for any statutory amendments.

SECTION 4. There is appropriated out of the general revenues of the State of Hawaii the sum of $ , or so much thereof as may be necessary for fiscal year 2007-2008, and the same sum, or so much thereof as may be necessary for fiscal year 2008-2009, to implement random substance abuse testing pursuant to this part.

The sums appropriated shall be expended by the department of education.

PART II

SECTION 5. The legislature finds that Hawaii currently faces a drug crisis, with drug use reaching epidemic proportions. During the 1990s, an elected official was found to be using drugs at or near the time of the expiration of his elected service. In addition, because of the high rate of drug usage in the State, it is possible that at least some current elected officials are using illegal drugs during their terms of office. Hawaii's immediate drug crisis knows no economic or social boundaries—the most powerful and wealthy are affected just as are the lame and the poor. This part is necessary because of the past history of drug use by elected officials and the rising numbers of drug users in the general population who may be elected to public office.

The legislature further finds that because of Hawaii's current "ice" epidemic, as well as the increased rate of other drug use, it is critical to ensure that no one elected to represent the people of Hawaii uses illegal drugs. Drug use by elected officials makes Hawaii a more dangerous place to live and visit and undermines the foundation of government. Though elected officials are not the leaders of the Hawaii drug crisis, any involvement in drugs by an appointee of the public who is charged with creating antidrug enforcement policies, or even the appearance of impropriety thereof, is wholly unacceptable. Hawaii's unique need to deal with this past issue of drugs and elected officials, and the unique need Hawaii will continue to face with the rise of drug use by those who may become elected officials, requires that drug testing be implemented.

Beyond need, the legislature declares that a zero tolerance policy on drug use by elected officials serves the public because the officials are accountable to the public and use of illegal drugs draws into question an elected official's judgment and integrity; jeopardizes the discharge of public functions, including antidrug law enforcement efforts; and undermines public confidence and trust in elected officials.

Because elected officials have power over the community through the introduction and enactment of legislation, including the ability to subject citizens to mandatory drug testing, this part is necessary to ensure that elected officials are held to at least the same, if not a higher, standard as other citizens.

SECTION 6. Chapter 78, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§78- Elected officials; drug testing; disqualification and forfeiture of office. (a) All elected officials shall submit to testing for illegal drugs after certification of their election and prior to taking the oath of office. Thereafter, elected officials elected to a term of office of two years shall submit to testing for illegal drugs every six months. Elected officials elected to a term of office of four years shall submit to testing for illegal drugs every twelve months. Testing shall be conducted in compliance with chapter 329B. Testing shall be funded from the budget of the branch of government to which the official has been elected. Test results shall be provided to the personnel officer of the branch of government to which the official has been elected or in which the official holds office and the personnel officer shall take action, as appropriate, to effectuate the purposes of this section.

(b) Any elected official who tests positive for illegal drugs shall immediately be disqualified from taking office or forfeit any office held.

"Elected official" means the governor, lieutenant governor, members of the senate and the house of representatives, county mayors, elected county prosecutors, members of the county councils, members of the board of education and of the board of trustees of the office of Hawaiian affairs, and any person certified pursuant to section 11-155 to have won election to one of these offices but who has not yet taken the oath of office.

"Illegal drug" means any controlled substance, as defined in chapter 329, for which the person does not possess a valid prescription."

SECTION 7. This part does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

PART III

SECTION 8. New statutory material is underscored.

SECTION 9. This Act shall take effect upon its approval; provided that section 4 shall take effect on July 1, 2007.

THE SENATE	S.B. NO.	1139
TWENTY-FOURTH LEGISLATURE, 2007		S.D. 1
STATE OF HAWAII