THE SENATE	S.B. NO.	2405
THIRTY-FIRST LEGISLATURE, 2022
STATE OF HAWAII

A BILL FOR AN ACT

Relating to Public Employees.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that certain public employers, including the University of Hawaii, have policies that prohibit their employees from holding elective public offices, noting concerns such as issues of incompatibility, conflicts of commitment, and conflicts of interest.

The legislature also finds that although public employees are not subject to constitutional and statutory restrictions that prohibit public officers and holders of public offices from simultaneously holding another public office, they are subject to the common law doctrine of incompatible offices that prohibits public officers and employees from accepting a position with another public office when the second office is incompatible with the first. Two public offices are deemed incompatible if one office is subordinate to the other; the functions of the two offices are inherently inconsistent and repugnant to each other; or if a conflict of interest, lack of impartiality, or appearance thereof will arise by one employee holding positions at both offices.

The legislature further finds that the determination of whether one public office is incompatible with another depends on the rights, duties, or obligations connected with or flowing from the two offices. As no two offices are the same, the determination of incompatibility between two public offices should be made on a case-by-case basis; not pursuant to a policy devoid of any analysis, uniformly applied to all situations.

Accordingly, the purpose of this Act is to prohibit public employers, including the University of Hawaii, from barring their employees from holding an elective public office unless the employer conducts a case-by-case review of the rights, duties, and obligations connected with or flowing from the employer and the elective public office and reasonably determines that the two offices are incompatible.

SECTION 2. Chapter 78, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§78-   Public employees; elective public office; determination of incompatible offices. (a) An employer shall not bar an employee from holding an elective public office unless the employer conducts a case-by-case review of the rights, duties, and obligations connected with or flowing from the employer and the elective public office, and reasonably determines that:

(1) The employer or the elective public office is subordinate to the other;

(2) The functions of the employer and the elective public office are inherently inconsistent and repugnant to each other;

(3) The employee's holding of positions with the employer and the elective public office creates a conflict of interest, a lack of impartiality, or an appearance thereof; or

(4) The employee's rights, duties, or obligations with the elective public office will interfere with the employee's rights, duties, or obligations with the employer.

(b) As used in this section, unless the context clearly requires otherwise, "elective public office" means a public office held by:

(1) An individual elected to a public office in accordance with an election duly held in the State or counties under chapter 11, except as a delegate to a constitutional convention; or

(2) An individual appointed to fill a vacancy of an elective public office;

provided that the individual receives compensation, pay, or salary for holding the public office."

SECTION 3. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:

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Report Title:

Public Employees; Elective Public Office; Determination of Incompatible Offices

Description:

Prohibits public employers from barring their employees from holding an elective public office unless the employer conducts a case-by-case review of the rights, duties, and obligations connected with or flowing from the employer and the elective public office, and reasonably determines that the two offices are incompatible.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.