SB611 SD1

SECTION 1. The purpose of this Act is to establish the authority of the board of education and department of education to own and administer all lands used for Hawaii's public schools by:

(1) Transferring all public lands used for public school facilities to the department of education; and

(2) Empowering the board of education and department of education to acquire, lease, hypothecate, develop, and enter into agreements for the improvement of lands under their control for the support of public schools.

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

"PART . ASSET MANAGEMENT

§302A- Legislative findings. The legislature finds that section 5(f) of The Admission Act provides that public lands and the proceeds and income therefrom shall be held as a public trust and managed and disposed of for purposes including, but not limited to, support of the public schools. The legislature further finds that article X, section 3, of the state constitution establishes that "[t]he board of education shall have the power, as provided by law, to formulate policy and to exercise control over the public school system . . . ." The legislature further finds that article XI, section 5, of the state constitution provides that ". . . legislative power over the lands owned by or under the control of the State and its political subdivisions shall be exercised only by general laws . . . ." Therefore, the legislature finds that public lands appropriately classified by the department of land and natural resources and used for public school facilities should be transferred to the department of education, with the approval of the board of land and natural resources and the board of education, for purposes and in a manner consistent with the state constitution.

The purpose of this part is to ensure the most productive use of public lands classified or set aside by the department of land and natural resources for public school facilities by allowing these lands to be transferred to and managed by the department of education.

§302A- Definitions. As used in this part, unless the context otherwise requires:

"Public school facilities" means those facilities discussed in section 302A-1506.

§302A- Transfer and management of public school lands and related facilities to the department of education. (a) Upon mutual agreement and approval of the board and the board of land and natural resources, the department may accept the transfer of and manage:

(1) Certain qualifying public school lands; and

(2) Certain assets, including position counts, related to the management of existing encumbered and unencumbered public school lands and related facilities shall be transferred to the department.

(b) For any public school lands to be transferred to the department that are not being utilized or required for the public purpose stated, the order setting aside the lands shall be withdrawn and the lands shall be returned to the department of land and natural resources.

§302A- Conversion of qualified and encumbered public school lands. The department shall establish criteria and rules pursuant to chapter 91 and subject to approval by the board to convert qualified and encumbered public school lands to department leases or other forms of encumbrance.

§302A- Extension of public school lands encumbered by permit and transferred to and managed by the department. Notwithstanding chapter 171, the board shall establish criteria and rules to allow the cancellation, renegotiation, and extension of transferred encumbrances by the department. Notwithstanding any law to the contrary, leases of encumbered public school lands transferred to the department shall not have their respective length of term or rents reduced over the remaining fixed term of the leases.

§302A- Rules. The board shall adopt rules pursuant to chapter 91 to effectuate the purposes of this part.

§302A- Acquisition, use, disposition of property. (a) The board may acquire any real or personal property or interest therein by purchase, gift, grant, lease, or other means from any person or government to provide sites for public school facilities.

(b) The board may own or hold real property. All real property owned or held by the board shall be exempt from mechanics' or materialmen's liens and also from levy and sale by virtue of an execution, and no execution or other judicial process shall issue against the same nor shall any judgment against the board be a charge or lien upon its real property; provided that this subsection shall not apply to or limit the right of obligees to foreclose or otherwise enforce any mortgage of the board or the right of obligees to pursue any remedies for the enforcement of any pledge or lien given by the board on its rents, fees, or revenues. The board and its property shall be exempt from all taxes and assessments.

(c) The board may lease or rent all or a portion of any public school site and establish and revise the rents or charges therefor.

(d) The board may insure or provide for the insurance of its property or operations against risks as it deems advisable.

§302A- Development of property. (a) The board, on its own behalf or on behalf of any government agency, may:

(1) Clear, improve, and rehabilitate property;

(2) Plan, develop, construct, and finance public school projects; and

(3) In cooperation with the Hawaii housing finance and development corporation and the department of accounting and general services, plan educational facilities and related infrastructure as a necessary and integral part of public housing projects using all its innovative powers toward achieving that end expeditiously and economically; provided that the educational facilities comply with the department's educational specifications, timelines, and siting requirements.

(b) The board may develop public land in an agricultural district subject to prior approval of the land use commission, when developing lands greater than five acres in size, and public land in a conservation district subject to the prior approval of the board of land and natural resources. The board shall not develop state monuments, historical sites, or parks. When the board proposes to develop public land, it shall file with the department of land and natural resources a petition setting forth such purpose. The petition shall be conclusive proof that the intended use is a public use superior to that which the land has been appropriated.

(c) The board may develop or assist in the development of federal lands with the approval of appropriate federal authorities.

(d) The board shall not develop any public land where the development may endanger the receipt of any federal grant, impair the eligibility of any public body for a federal grant, prevent the participation of the federal government in any government program, or impair any covenant between the government and the holder of any bond issued by the government.

§302A- Development of property; additional powers. Notwithstanding any provision to the contrary, whenever bids submitted for any public school development or rehabilitation project exceed the amount of funds available for that project, the board, with the approval of the governor, may disregard the bids and enter into an agreement to carry out the project, or undertake the project or participate in the project under the agreement; provided that the total cost of the agreement and the board's participation, if any, shall not exceed the amount of funds available for the project; provided further that if the agreement is with a non-bidder, the scope of the project under agreement shall remain the same as that for which bids were originally requested.

§302A- Eminent domain or use of public property. (a) The board may acquire any real property, including fixtures and improvements, or interest therein, through voluntary negotiation or by the exercise of the power of eminent domain that it deems necessary by the adoption of a resolution declaring that the acquisition of the property described therein is in the public interest and required for public use.

(b) The board shall exercise the power of eminent domain granted by this section in the same manner and procedure as is provided by chapter 101, and otherwise in accordance with all applicable provisions of the general laws of the State; provided that condemnation of parcels greater than fifteen acres shall be subject to legislative disapproval expressed in a concurrent resolution adopted by majority vote of the senate and the house of representatives in the first regular or special session in which both houses of the legislature are in session following the date of condemnation. No award of compensation shall be increased by reason of any increase in the value of real property caused by the designation of a public school facility site, or the actual or proposed acquisition, use, or disposition of any other real property by the board.

(c) The board may acquire by the exercise of the power of eminent domain property already devoted to a public use; provided that no property belonging to any government may be acquired without its consent, and that no property belonging to a public utility corporation may be acquired without the approval of the public utilities commission, and subject to legislative disapproval expressed in a concurrent resolution adopted by majority vote of the senate and the house of representatives in the first regular or special session in which both houses of the legislature are in session following the date of condemnation. The property shall not thereafter be taken for any other public use without the consent of the board.

§302A- Use of public lands; acquisition of state lands; disposition. (a) Chapter 171 to the contrary notwithstanding, the governor may transfer lands located within a public school facility project area to the board for its use.

(b) If state lands under the control and management of other public agencies are required by the board for its purposes, the agency having control and management of those required lands, upon request by the board and with the approval of the governor, shall lease the lands to the board upon terms and conditions that may be agreed to by the parties.

(c) Subsection (b) to the contrary notwithstanding, no public lands shall be leased to the board if the lease would impair any covenant between the State or any county, or any department or board thereof, and the holders of bonds issued by the State or the county, department, or board.

(d) The board shall transfer any surplus or unused public school lands under its control to the department of land and natural resources for inclusion in the inventory of public lands in the public land trust to maximize the availability of public lands for all State and county agencies and the public.

§302A- Public works contracts. The board may make, execute, and carry out contracts for, or in connection with, any public school facility project in the manner provided in chapter 103D and section 103-53. With regard to contracts entered into as prescribed in this section, the term "officer," as used in chapter 103D, means the department or officer authorized by the department to act as its contracting officer. Unless made and executed in the name of the State, each contract made and executed as authorized in this section shall state therein that it is so made and executed.

§302A- Quitclaim deeds. Unless otherwise provided by law, the board shall issue quitclaim deeds and leases whenever it conveys, transfers, sells, or assigns any property developed, constructed, or sponsored under this chapter.

§302A- Acquisition of real property from a county. Any provision of law or charter to the contrary notwithstanding, any county, by resolution of its local governing body, without public auction, sealed bids, or public notice, may sell, lease for a term not exceeding sixty-five years, grant, or convey to the board any real property owned by it which the board certifies to be necessary for its purposes. The sale, lease, grant, or conveyance shall be made with or without consideration and upon terms and conditions as may be agreed upon by the county and the board. Certification shall be evidenced by a formal request from the board. Before the sale, lease, grant, or conveyance may be made to the board, a public hearing shall be held by the governing body of the county to consider the same. Notice of the hearing shall be published as provided by section 1-28.5.

§302A- Lease of public school sites. The board may lease for a term not exceeding sixty-five years, all or any portion of the real or personal property constituting a public school facility to any person, upon terms and conditions that may be approved by the board, if the board finds that the lease is in conformity with the six-year program and financial plan.

§302A- Public school land trust. All public school lands and funds derived from the lease of public school lands shall be held as a public trust for the support of the public schools."

SECTION 3. Section 171-2, Hawaii Revised Statutes, is amended to read as follows:

"§171-2 Definition of public lands. "Public lands" means all lands or interest therein in the State classed as government or crown lands previous to August 15, 1895, or acquired or reserved by the government upon or subsequent to that date by purchase, exchange, escheat, or the exercise of the right of eminent domain, or in any other manner; including accreted lands not otherwise awarded, submerged lands, and lands beneath tidal waters [~~which~~] that are suitable for reclamation, together with reclaimed lands which have been given the status of public lands under this chapter, except:

(1) Lands designated in section 203 of the Hawaiian Homes Commission Act, 1920, as amended;

(2) Lands set aside pursuant to law for the use of the United States;

(3) Lands being used for roads and streets;

(4) Lands to which the United States relinquished the absolute fee and ownership under section 91 of the Hawaiian Organic Act prior to the admission of Hawaii as a state of the United States unless subsequently placed under the control of the board of land and natural resources and given the status of public lands in accordance with the [~~State Constitution,~~] state constitution, the Hawaiian Homes Commission Act, 1920, as amended, or other laws;

(5) Lands to which the University of Hawaii holds title;

(6) Lands to which the Hawaii housing finance and development corporation in its corporate capacity holds title;

(7) Lands to which the Hawaii community development authority in its corporate capacity holds title;

(8) Lands to which the department of agriculture holds title by way of foreclosure, voluntary surrender, or otherwise, to recover moneys loaned or to recover debts otherwise owed the department under chapter 167;

(9) Lands [~~which~~] that are set aside by the governor to the Aloha Tower development corporation; lands leased to the Aloha Tower development corporation by any department or agency of the State; or lands to which the Aloha Tower development corporation holds title in its corporate capacity;

(10) Lands [~~which~~] that are set aside by the governor to the agribusiness development corporation; lands leased to the agribusiness development corporation by any department or agency of the State; or lands to which the agribusiness development corporation in its corporate capacity holds title; [~~and~~]

(11) Lands to which the high technology development corporation in its corporate capacity holds title[.]; and

(12) Lands to which the department of education holds title."

SECTION 4. Section 302A-1111, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Under policies established by the board, the superintendent shall be designated as the chief executive officer of the public school system having jurisdiction over the internal organization, operation, and management of the public school system, as provided by law[;], including but not limited to the acquisition, ownership, development, and management of public lands for public schools, and shall administer programs of education and public instruction throughout the State, including education at the preschool, primary, and secondary school levels, and such other programs as may be established by law."

SECTION 5. Section 302A-1128, Hawaii Revised Statutes, is amended to read as follows:

"§302A-1128 Department powers and duties. (a) The department shall have entire charge and control and be responsible for the conduct of all affairs pertaining to public instruction in the public schools the department establishes and operates, including operating and maintaining the capital improvement and repair and maintenance programs for department and school facilities. The department may establish and maintain schools for secular instruction at [~~such~~] any places and for [~~such~~] any terms as in its discretion it may deem advisable and the funds at its disposal may permit. The schools may include high schools, kindergarten schools, schools or classes for pregrade education, boarding schools, Hawaiian language medium education schools, and evening and day schools. The department may also maintain classes for technical and other instruction in any school where there may not be pupils sufficient in number to justify the establishment of separate schools for these purposes.

(b) The department shall regulate the courses of study to be pursued in all grades of the public schools it establishes and operates, and classify them by methods the department deems proper; provided that:

(1) The course of study and instruction shall be regulated in accordance with the statewide performance standards established under section 302A-201;

(2) All pupils shall be progressively competent in the use of computer technology; and

(3) The course of study and instruction for the first twelve grades shall provide opportunities for all students to develop competency in a language in addition to English.

The department shall develop statewide educational policies and guidelines based on this subsection without regard to chapter 91.

For the purposes of this subsection, the terms "progressively competent in the use of computer technology" and "competency in a language in addition to English" shall be defined by policies adopted by the board. The board shall formulate statewide educational policies allowing the superintendent to exempt certain students from the requirements of paragraphs (2) and (3) without regard to chapter 91.

(d) The department shall have entire charge and control and be responsible for the acquisition, ownership, development, and management of public lands for public schools, and for the construction, operation, maintenance, and repair of public school facilities."

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 7. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect on July 1, 2050.

THE SENATE	S.B. NO.	611
TWENTY-FOURTH LEGISLATURE, 2007		S.D. 1
STATE OF HAWAII