HB1678.DOC

SECTION 1. The legislature finds that partnerships between the State and the counties to utilize government facilities for public purposes increase the efficiency and efficacy of government services. However, the legislature also finds that the current process for requesting approval for indemnification of a county by the State for the use of county facilities is inherently flawed and implicates the autonomy of the legislature in its performance of official legislative functions for public service and for public purposes.

Pursuant to section 46-71.5, Hawaii Revised Statutes, before a county may receive aid, assistance, support, benefits, services, and interests in or rights for the State’s use of county property, a request must be made in writing seeking approval of indemnification protection by the State. Further, the written request for indemnification may be granted only after certain stringent preconditions are satisfied. As a starting point, it is common practice for a legislator to certify in writing that the site is satisfactory for its intended use and that there is no significant risk or liability. Next, the request for use and indemnification is reviewed by the attorney general and accompanied by a recommendation for approval or denial. After that review, it is statutorily mandated that both the comptroller and the governor review and approve the request before indemnification is granted. Only after this time-consuming process, and subject to the approval of both the comptroller and governor, may the county facility or service be made available for the requested use.

The legislature further finds that this process for indemnification for use of county facilities impinges upon the legislature's ability to freely conduct official legislative business. The legislature thus declares that by and through the application of section 46-71.5, Hawaii Revised Statutes, the bright line that clearly establishes the independence of the three branches of government is blurred. In light of this, the legislature is concerned with the potential conflicts and obstacles presented in the current indemnification process. More specifically, the legislature asserts that it should not be required to seek the permission of the comptroller and governor in order to perform official duties for the public in county facilities. The legislature should be entitled to indemnification at the outset.

Accordingly, the purpose of this Act is to expressly require that counties be indemnified for the use of county facilities or services in the course of official legislative duties for a public purpose.

SECTION 2. Section 46-71.5, Hawaii Revised Statutes, is amended to read as follows:

"§46-71.5 Indemnification of county agencies. (a) To receive county aid, assistance, support, benefits, services, and interests in or rights to use county property, a state agency may agree in writing to an indemnity provision by which the State agrees to indemnify, defend, and hold harmless a county agency, its officers, agents, and employees when:

(1) The governor approves the State's proposed indemnification; and

(2) The comptroller, pursuant to section 41D-8.5, has obtained an insurance policy or policies in an amount sufficient to cover the liability of the State that reasonably may be anticipated to arise under the indemnity provision, or has determined that it is not in the best interest of the State to obtain insurance.

(b) Notwithstanding subsection (a), the governor may delegate to the superintendent of education or the deputy superintendent if so designated by the superintendent of education the authority to agree to indemnify, defend, and hold harmless a county agency, its officers, agents, and employees when:

(1) The use of the county property will be for a public school purpose or a public school function;

(2) The governor approves, in writing, the indemnity provision to be used by the superintendent of education or the deputy superintendent if so designated by the superintendent of education which provision, upon approval, may serve as approval under this paragraph for all public school purposes or functions on county properties for the remainder of that same school year; and

(3) The comptroller, pursuant to section 41D-8.5, has obtained an insurance policy or policies in an amount sufficient to cover the liability of the State that reasonably may be anticipated to arise under the indemnity provision, or has determined that it is not in the best interest of the State to obtain insurance.

(c) An indemnity provision not in strict compliance with this section shall not give rise to a claim against the State under chapter 661 or otherwise waive the State's sovereign immunity.

(d) Notwithstanding subsection (a) or any other law to the contrary, the State shall indemnify, defend, and hold harmless a county agency, its officers, agents, and employees when the legislative branch of the State uses county property in the course of legislative duties and for a public purpose, including but not limited to holding public meetings, and has executed an indemnity agreement with the applicable county; provided that the legislative branch shall provide a written copy of the indemnity agreement to the comptroller no fewer than ten days prior to the legislative branch's use of the county property. The comptroller, pursuant to section 41D-8.5, may obtain an insurance policy or policies in an amount sufficient to cover the liability of the State that reasonably may be anticipated to arise under the indemnity agreement or may determine that it is not in the best interest of the State to obtain insurance."

SECTION 3. New statutory material is underscored.

SECTION 4. This Act shall take effect on July 1, 2016.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	1678
TWENTY-EIGHTH LEGISLATURE, 2016
STATE OF HAWAII