SB2412.DOC

SECTION 1. The legislature finds that chapter 76, Hawaii Revised Statutes, requires that public employee positions authorized by the legislature and established to provide personnel services be governed by the civil service law, with certain exemptions. Two of those exemptions are currently found in section 76-16(b)(3) and (12), Hawaii Revised Statutes, and relate to employees required to comply with a court order or decree without delay or those necessary for a special, research, or demonstration project.

The legislature also finds that those civil service exemptions have been incorrectly cited by some executive agencies not just to exempt legislatively authorized positions from the civil service but as the legal authority to create positions not authorized by the legislature in the general or supplemental appropriations act. The legislature finds that nothing in section 76-16(b), Hawaii Revised Statutes, authorizes the governor or an executive agency to create any position in state government.

The legislature further finds that it is necessary for the legislature to correct the misinterpretation of section 76-16(b), Hawaii Revised Statutes, and to exert more control over the creation of positions in state government. Legislation is needed to prohibit an executive agency or the judiciary from expending moneys to fill a permanent or temporary position not authorized by the legislature in the applicable general or supplemental appropriations act, except under certain circumstances.

The purpose of this Act is to correct the misinterpretation of section 76-16(b), Hawaii Revised Statutes, and to provide the executive and the judiciary express statutory authority to create positions exempt from the civil service not authorized by the general or supplemental appropriations act, under certain circumstances. More specifically, this Act permits:

(1) An executive agency, with the approval of the governor, to establish and fill a legislatively unauthorized position if required to comply with a court order or decree without delay; and

(2) The governor and the judiciary to establish and fill a legislatively unauthorized position required for a special, research, or demonstration project.

SECTION 2. Chapter 26, Hawaii Revised Statutes, is amended by adding a new section to part II to be appropriately designated and to read as follows:

"§26-A Creation of position not authorized in general or supplemental appropriations act. (a) For the purpose of this section, a "position not authorized by the general or supplemental appropriations act" means a position that does not comport with section 37-A(a).

(b) An executive agency, with the approval of the governor, may establish and fill a position not authorized by the general or supplemental appropriations act if:

(1) The position is required to be filled to comply with a court order or decree if the director of human resources development determines that recruitment through normal civil service procedures would result in delay or noncompliance; and

(2) An appropriation to fund the position is available to the executive agency.

(1) The position is required for a special, research, or demonstration project, as determined by the governor; and

(2) An appropriation to fund the position is available to the governor or another executive agency.

The governor may assign the position to any executive agency or retain the position under the governor's office.

(d) A position established pursuant to this section shall be eliminated no later than the last day of the fiscal year following the fiscal year in which the position was established; provided that the position may continue after that day if re-established pursuant to subsection (b) or (c) or authorized by a general or supplemental appropriations act or other law.

(e) The reporting requirement of section 37-A shall apply to each position established pursuant to this section during a fiscal year."

SECTION 3. Chapter 37, Hawaii Revised Statutes, is amended by adding a new section to part IV to be appropriately designated and to read as follows:

"§37-A Expenditure only for authorized position. (a) For the purpose of this section, a position shall be deemed "authorized by the general or supplemental appropriation act" if it is:

(1) Listed in the budget details or form submitted to the legislature by an executive agency, governor, or department of budget and finance to support the agency's request for an appropriation in the proposed general or supplemental appropriations act;

(2) Within the position count ceiling for the executive agency in the enacted general or supplemental appropriations act; and

(3) Not expressly eliminated in a budget worksheet prepared by the last legislative conference or standing committee that reported out the version of the general or supplemental appropriations act finally passed by the legislature.

(b) Except as otherwise provided under subsection (c), no funds shall be expended to fill any permanent or temporary position in the executive branch unless the position is authorized by the general or supplemental appropriations act in effect when the funds are expended or encumbered.

(c) Subsection (b) shall not prohibit the expenditure of funds to fill the following positions not authorized by the general or supplemental appropriations act:

(1) Positions funded exclusively with trust funds;

(2) Positions funded exclusively with federal funds;

(3) Positions established pursuant to section 26-A; and

(4) Positions established by an executive agency for a program or project funded by an appropriation in an act other than the general or supplemental appropriations act.

(d) An executive agency that has filled a temporary or permanent position pursuant to this subsection during a fiscal year shall submit to the department of budget and finance a report listing the positions that were filled. The report shall be submitted not later than fifteen days prior to the end of the fiscal year.

The department of budget and finance shall submit the reports to the legislature within fifteen days of receipt. The department may submit a consolidated report rather than individual reports from each executive agency; provided that the consolidated report is submitted to the legislature by not later than the end of the fiscal year."

SECTION 4. Chapter 601, Hawaii Revised Statutes, is amended by adding to a new section to be appropriately designated and to read as follows:

"§601-A Expenditure only for authorized position. (a) For the purpose of this section, a position shall be deemed "authorized by the judiciary general or supplemental appropriation act" if it is:

(1) Listed in the budget details or form submitted to the legislature by the judiciary to support the judiciary's request for an appropriation in the proposed judiciary general or supplemental appropriations act;

(2) Within the position count ceiling for the judiciary in the enacted judiciary general or supplemental appropriations act; and

(3) Not expressly eliminated in a budget worksheet prepared by the last legislative conference or standing committee that reported out the version of the judiciary general or supplemental appropriations act finally passed by the legislature.

(b) Except as otherwise provided under subsection (c), no funds shall be expended to fill any permanent or temporary position in the judiciary unless the position is authorized by the judiciary general or supplemental appropriations act in effect when the funds are expended or encumbered.

(c) Subsection (b) shall not prohibit the expenditure of funds to fill the following positions not authorized by the judiciary general or supplemental appropriations act:

(1) Positions funded exclusively with trust funds;

(2) Positions funded exclusively with federal funds;

(3) Positions established for special, research, or demonstration project, as determined by the chief justice; and

(4) Positions established by the judiciary for a program or project funded by an appropriation in an act other than the judiciary general or supplemental appropriations act.

The chief justice shall submit to the legislature and department of budget and finance a report listing the positions that were established and filled pursuant to this subsection during a fiscal year. The report shall be submitted within fifteen days of the end of the fiscal year."

SECTION 5. Section 76-16, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The civil service to which this chapter applies shall comprise all positions in the State now existing or hereafter established and embrace all personal services performed for the State, except the following:

(1) Commissioned and enlisted personnel of the Hawaii National Guard as such, and positions in the Hawaii National Guard that are required by state or federal laws or regulations or orders of the National Guard to be filled from those commissioned or enlisted personnel;

(2) Positions filled by persons employed by contract where the director of human resources development has certified that the service is special or unique or is essential to the public interest and that, because of circumstances surrounding its fulfillment, personnel to perform the service cannot be obtained through normal civil service recruitment procedures. Any such contract may be for any period not exceeding one year;

(3) Positions that must be filled without delay to comply with a court order or decree if the director determines that recruitment through normal [~~recruitment~~] civil service procedures would result in delay or noncompliance, such as the Felix-Cayetano consent decree;

(4) Positions filled by the legislature or by either house or any committee thereof;

(5) Employees in the office of the governor and office of the lieutenant governor, and household employees at Washington Place;

(6) Positions filled by popular vote;

(7) Department heads, officers, and members of any board, commission, or other state agency whose appointments are made by the governor or are required by law to be confirmed by the senate;

(8) Judges, referees, receivers, masters, jurors, notaries public, land court examiners, court commissioners, and attorneys appointed by a state court for a special temporary service;

(9) One bailiff for the chief justice of the supreme court who shall have the powers and duties of a court officer and bailiff under section 606-14; one secretary or clerk for each justice of the supreme court, each judge of the intermediate appellate court, and each judge of the circuit court; one secretary for the judicial council; one deputy administrative director of the courts; three law clerks for the chief justice of the supreme court, two law clerks for each associate justice of the supreme court and each judge of the intermediate appellate court, one law clerk for each judge of the circuit court, two additional law clerks for the civil administrative judge of the circuit court of the first circuit, two additional law clerks for the criminal administrative judge of the circuit court of the first circuit, one additional law clerk for the senior judge of the family court of the first circuit, two additional law clerks for the civil motions judge of the circuit court of the first circuit, two additional law clerks for the criminal motions judge of the circuit court of the first circuit, and two law clerks for the administrative judge of the district court of the first circuit; and one private secretary for the administrative director of the courts, the deputy administrative director of the courts, each department head, each deputy or first assistant, and each additional deputy, or assistant deputy, or assistant defined in paragraph (16);

(10) First deputy and deputy attorneys general, the administrative services manager of the department of the attorney general, one secretary for the administrative services manager, an administrator and any support staff for the criminal and juvenile justice resources coordination functions, and law clerks;

(11) (A) Teachers, principals, vice-principals, complex area superintendents, deputy and assistant superintendents, other certificated personnel, not more than twenty noncertificated administrative, professional, and technical personnel not engaged in instructional work;

(B) Effective July 1, 2003, teaching assistants, educational assistants, bilingual/bicultural school-home assistants, school psychologists, psychological examiners, speech pathologists, athletic health care trainers, alternative school work study assistants, alternative school educational/supportive services specialists, alternative school project coordinators, and communications aides in the department of education;

(D) Members of the faculty of the University of Hawaii, including research workers, extension agents, personnel engaged in instructional work, and administrative, professional, and technical personnel of the university;

(12) Employees engaged in special, research, or demonstration projects approved by the governor[;] for the executive branch or chief justice for the judicial branch, as applicable;

(13) (A) Positions filled by inmates, patients of state institutions, persons with severe physical or mental disabilities participating in the work experience training programs;

(B) Positions filled with students in accordance with guidelines for established state employment programs; and

(C) Positions that provide work experience training or temporary public service employment that are filled by persons entering the workforce or persons transitioning into other careers under programs such as the federal Workforce Investment Act of 1998, as amended, or the Senior Community Service Employment Program of the Employment and Training Administration of the United States Department of Labor, or under other similar state programs;

(14) A custodian or guide at Iolani Palace, the Royal Mausoleum, and Hulihee Palace;

(15) Positions filled by persons employed on a fee, contract, or piecework basis, who may lawfully perform their duties concurrently with their private business or profession or other private employment and whose duties require only a portion of their time, if it is impracticable to ascertain or anticipate the portion of time to be devoted to the service of the State;

(16) Positions of first deputies or first assistants of each department head appointed under or in the manner provided in section 6, article V, of the state constitution; three additional deputies or assistants either in charge of the highways, harbors, and airports divisions or other functions within the department of transportation as may be assigned by the director of transportation, with the approval of the governor; four additional deputies in the department of health, each in charge of one of the following: behavioral health, environmental health, hospitals, and health resources administration, including other functions within the department as may be assigned by the director of health, with the approval of the governor; an administrative assistant to the state librarian; and an administrative assistant to the superintendent of education;

(17) Positions specifically exempted from this part by any other law; provided that all of the positions defined by paragraph (9) shall be included in the position classification plan;

(18) Positions in the state foster grandparent program and positions for temporary employment of senior citizens in occupations in which there is a severe personnel shortage or in special projects;

(19) Household employees at the official residence of the president of the University of Hawaii;

(20) Employees in the department of education engaged in the supervision of students during meal periods in the distribution, collection, and counting of meal tickets, and in the cleaning of classrooms after school hours on a less than half-time basis;

(21) Employees hired under the tenant hire program of the Hawaii public housing authority; provided that except during the time period specified in paragraph (27), not more than twenty-six per cent of the authority's workforce in any housing project maintained or operated by the authority shall be hired under the tenant hire program;

(22) Positions of the federally funded expanded food and nutrition program of the University of Hawaii that require the hiring of nutrition program assistants who live in the areas they serve;

(23) Positions filled by persons with severe disabilities who are certified by the state vocational rehabilitation office that they are able to perform safely the duties of the positions;

(24) The sheriff;

(25) A gender and other fairness coordinator hired by the judiciary;

(26) Positions in the Hawaii National Guard youth and adult education programs; and

(27) From July 1, 2012, to June 30, 2015, persons hired or contracted to perform repair, maintenance, or capital improvement projects work on vacant housing units under the jurisdiction of the Hawaii public housing authority.

The director shall determine the applicability of this section to specific positions.

Nothing in this section shall be deemed to affect the civil service status of any incumbent as it existed on July 1, 1955.

This section shall not be deemed to authorize the creation of a position exempted from civil service under this subsection. Such an exempt position may be created only if specifically authorized by law, including an act making an appropriation."

SECTION 6. Section 302A-1116, Hawaii Revised Statutes, is amended to read as follows:

"[[]§302A-1116[]] Authority to create temporary positions. The department may create temporary positions as it deems necessary; provided that:

(1) The department's expenditures shall not exceed its allocated budget;

(2) The term of each position shall not exceed one year; [~~and~~]

(3) The department shall report the creation of temporary positions to the department of budget and finance[.]; and

(4) The creation of the position does not violate section 26-A or 37-A."

SECTION 7. Section 601-2, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The chief justice shall possess the following powers, subject to such rules as may be adopted by the supreme court:

(1) To assign circuit judges from one circuit to another;

(2) In a circuit court with more than one judge, (A) to make assignments of calendars among the circuit judges for such period as the chief justice may determine and, as deemed advisable from time to time, to change assignments of calendars or portions thereof (but not individual cases) from one judge to another, and (B) to appoint one of the judges, for such period as the chief justice may determine, as the administrative judge to manage the business of the court, subject to the rules of the supreme court and the direction of the chief justice;

(3) To prescribe for all of the courts a uniform system of keeping and periodically reporting statistics of their business;

(4) To procure from all of the courts estimates for their appropriations; with the cooperation of the representatives of the court concerned to review and revise them as the chief justice deems necessary for equitable provisions for the various courts according to their needs and to present the estimates, as reviewed and revised by the chief justice, to the legislature as collectively constituting a unified budget for all of the courts;

(5) To exercise exclusive authority over the preparation, explanation, and administration of the judiciary budget, programs, plans, and expenditures, including without limitation policies and practices of financial administration and the establishment of guidelines as to permissible expenditures, provided that all expenditures of the judiciary shall be in conformance with program appropriations and provisions of the legislature, [~~and~~] all powers of administration over judiciary personnel that are specified in Title 7[;], and other law; and

(6) To do all other acts which may be necessary or appropriate for the administration of the judiciary."

SECTION 8. In codifying the new sections added by sections 2 and 3 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 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 10. This Act shall take effect on July 1, 2014; provided that the amendments made to section 76-16(b), Hawaii Revised Statutes, by this Act shall not be repealed when section 76-16(b) is reenacted on July 1, 2015, pursuant to Act 159, Session Laws of Hawaii 2012.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2412
TWENTY-SEVENTH LEGISLATURE, 2014
STATE OF HAWAII