The department of education shall be headed by an executive board to be known as the board of education.
Under policies established by the board, the superintendent shall administer programs of education and public instruction throughout the State, including education at the primary and secondary school levels, adult education, school library services, health education and instruction (not including dental health treatment transferred to the department of health), special education and Title I funded programs at the prekindergarten level, and such other programs as may be established by law; provided that the department shall not establish general education prekindergarten classrooms, including private partnership-funded classrooms and classrooms to provide general education settings for children whose individualized education programs require such placement; provided further that the department may establish Title I-funded prekindergarten classrooms. The department shall collaborate with the executive office on early learning to coordinate services for children who are placed through their individualized education programs in a general education prekindergarten setting in a classroom offered by the executive office on early learning public prekindergarten program. Under policies established by the early learning board, the executive office on early learning shall have administrative authority over all state-funded prekindergarten programs, and private partnership-funded prekindergarten programs in the public schools, except for special education and Title I-funded prekindergarten programs. The state librarian, under policies established by the board of education, shall be responsible for the administration of programs relating to public library services and transcribing services for the blind.
The functions and authority exercised by the department relating to state-funded prekindergarten programs, private partnership-funded prekindergarten programs in the public schools, and classrooms to provide general education settings for children whose individualized education programs require such placement, except for special education and Title I-funded prekindergarten programs, shall be transferred to the executive office on early learning; provided that the department shall continue to provide, and have administrative authority over, services generally provided to the schools excluding those services related to curriculum, instruction, assessment, and professional learning support, for any facility on a department school campus at which the executive office on early learning administers programs.
The functions and authority heretofore exercised by the department of education (except dental health treatment transferred to the department of health), library of Hawaii, Hawaii county library, Maui county library, and the transcribing services program of the bureau of sight conservation and work with the blind, as heretofore constituted are transferred to the public library system established by this chapter.
The management contract between the board of supervisors of the county of Kauai and the Kauai public library association shall be terminated at the earliest time after November 25, 1959, permissible under the terms of the contract and the provisions of this paragraph shall constitute notice of termination, and the functions and authority heretofore exercised by the Kauai county library as heretofore constituted and the Kauai public library association over the public libraries in the county of Kauai shall thereupon be transferred to the public library system established by this chapter.
The management contracts between the trustees of the library of Hawaii and the Friends of the Library of Hawaii, and between the library of Hawaii and the Hilo library and reading room association, shall be terminated at the earliest time after November 25, 1959, permissible under the terms of the contracts, and the provisions of this paragraph shall constitute notice of termination.
Upon the termination of the contracts, the State or the counties shall not enter into any library management contracts with any private association; provided that in providing library services, the board of education may enter into contracts approved by the governor for the use of lands, buildings, equipment, and facilities owned by any private association.
Notwithstanding any law to the contrary, the board of education may establish, specify the membership number and quorum requirements for, appoint members to, and disestablish a commission in each county to be known as the library advisory commission, which shall in each case sit in an advisory capacity to the board of education on matters relating to public library services in their respective county. [L Sp 1959 2d, c 1, §18; am L 1965, c 175, §41(a); Supp, §14A-17; HRS §26-12; am L 1970, c 59, §1; am L 1981, c 150, §1; am L 1997, c 202, §1; am L 2018, c 175, §1; am L 2019, c 276, §2]
Sections 302A-121 to 302A-127 designated as subpart B pursuant to §23G-15.
§302A-121 . (a) The board shall consist of nine members as follows:
(1) One member from the county of Hawaii;
(2) One member from the county of Maui;
(3) One member from the county of Kauai;
(4) Three members from the city and county of Honolulu; and
(5) Three at-large members; provided that the governor shall select an at-large member as the chairperson.
The members shall be appointed by the governor, with the advice and consent of the senate. The governor may remove or suspend for cause any member of the board.
(b) Pursuant to article XVIII, section 12, of the Hawaii State Constitution, the period of transition from the elected to the appointed board shall be as determined in section 21 of Act 5, Session Laws of Hawaii 2011.
(c) The members of the board shall serve without pay but shall be entitled to reimbursement for necessary expenses, including travel and board and lodging expenses, while attending meetings of the board or when actually engaged in business relating to the work of the board.
(d) Pursuant to section 302A-447, the state student council shall select a nonvoting public high school student representative to the board.
(e) Pursuant to section 302A-1101(c), the board shall invite the senior military commander in Hawaii to appoint a nonvoting military representative to the board. [L 2011, c 5, pt of §2]
Except as otherwise provided by law, state officers shall be eligible for appointment and membership to the board. No person shall be eligible for appointment to the board:
(1) Under section 302A-121(a)(1) through (4) unless the person is a resident of the county from which the person is to be appointed; or
(2) Under section 302A-121(a)(5) unless the person is a resident of the State. [L 2011, c 5, pt of §2]
The department shall serve as the central support system responsible for the overall administration of statewide educational policy, interpretation, and development of standards for compliance with state and federal laws, and coordination and preparation of a systemwide budget for the public schools. [L 1996, c 89, pt of §2; am L 2012, c 133, §13]
The board, designated as the administrators of such funds as may be allotted to the State under federal legislation for public educational purposes, subject to such limitations as may be imposed by congressional action, shall use and expend the funds:
(1) To improve the program of the public schools of the State, including any grades up to the fourteenth grade or such lower grade as shall be prescribed as a maximum for such purposes by the Act of Congress concerned, by expanding the educational offerings, particularly in the rural districts;
(2) For the payment of salaries to teachers;
(3) To employ additional teachers to relieve overcrowded classes;
(4) To adjust the salaries of teachers to meet the increased cost of living, within such limits as may be fixed by, and pursuant to, state law;
(5) To provide for the purchase of supplies, apparatus, and materials for the public schools; and
(6) For any of such purposes and to such extent as shall be permitted by the Acts of Congress concerned. [L 1996, c 89, pt of §2; am L 2012, c 133, §27; am L 2015, c 108, §6]
(a) There shall be a principal executive department to be known as the department of education, which shall be headed by a policy-making board to be known as the board of education. The board shall have power in accordance with law to formulate statewide educational policy, adopt student performance standards and assessment models, monitor school success, and appoint the superintendent of education as the chief executive officer of the public school system.
(b) The board shall appoint, and may remove, the superintendent by a majority vote of its members. The superintendent:
(1) May be appointed without regard to the state residency provisions of section 78-1(b);
(2) May be appointed for a term of up to four years; and
(3) May be terminated only for cause.
(c) The board shall invite the senior military commander in Hawaii to appoint a nonvoting military representative to the board, who shall serve for a two-year term without compensation. As the liaison to the board, the military representative shall advise the board regarding state education policies and departmental actions affecting students who are enrolled in public schools as family members of military personnel. The military representative shall carry out these duties as part of the representative’s official military duties and shall be guided by applicable state and federal statutes, regulations, and policies and may be removed only for cause by a majority vote of the members of the board.
(d) The board shall appoint the state public charter school commission which shall serve as the statewide charter authorizer for charter schools, with the power and duty to issue charters, oversee and monitor charter schools, hold charter schools accountable for their performance, and revoke charters. [L 1996, c 89, pt of §2; am L 2000, c 257, §1; am L 2006, c 298, §10; am L 2007, c 115, §5; am L 2011, c 5, §14; am L 2012, c 130, §8]
(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; and shall administer programs of education and public instruction throughout the State, including education at the primary and secondary school levels, and such other programs as may be established by law; provided that all state-funded prekindergarten programs, and private partnership-funded prekindergarten programs in the public schools, except for special education and Title I-funded prekindergarten programs, shall be under the administrative authority of the executive office on early learning; provided further that the department shall continue to provide, and have administrative authority over, services generally provided to the schools excluding those services related to curriculum, instruction, assessment, and professional learning support, for any facility on a department school campus at which the executive office on early learning administers programs.
(b) Except as otherwise provided, the superintendent shall sign all drafts for the payment of moneys, all commissions and appointments, all deeds, official acts, or other documents of the department; provided that the director of the executive office on early learning shall be the final authority on drafts for the payment of moneys, all commissions and appointments, all deeds, official acts, or other documents related to the executive office on early learning. The superintendent and director of the executive office on early learning may use a printed facsimile signature in approving appointments, contracts, and other documents. [L 1996, c 89, pt of §2; am L 2006, c 126, §1; am L 2018, c 175, §2; am L 2019, c 276, §4]
The department shall adopt a seal, the impression of which shall be necessary to authenticate all of its appointments, commissions, final acts of the nature of record, and all other documents issued by it. Upon authorization by the superintendent, a facsimile impression of the seal may be used to authenticate these documents. [L 1996, c 89, pt of §2]
§302A-1001 . in the State, on the basis of sex, shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational or recreational program or activity receiving state or county financial assistance or utilizing state or county facilities. [L 1996, c 89, pt of §2]
(a) The department shall implement a comprehensive system of educational accountability to motivate and support the improved performance of students and the education system. Data shall be reported as required by this section when the number of students in a particular data subgroup is greater than ten and shall be redacted when the number of students in a particular data subgroup is ten or fewer; provided that the personally identifiable information of each student shall be kept private. This accountability system shall:
(1) Include student accountability; school or collective accountability; individual professional accountability for teachers, principals, and other employees; and public accounting to parents, community members, businesses, higher education, media, and political leadership;
(2) Link authority and resources to responsibility;
(3) Define clear roles for all parties and lines of responsibility and mutual obligation and develop a collaborative process with stakeholders, including representatives of appropriate bargaining units, parents, administration, and students;
(4) Assess and track measures of academic achievement, safety and well-being, and civic responsibility of individual students at selected grade levels, and annually report trend data from the past three years on these measures;
(5) Invoke a full and balanced set of appropriate consequences for observed performance, including rewards and recognition for those schools that meet or exceed their goals, assistance to those that fall short, and sanctions for those that, given adequate assistance and ample time, continue to fail to meet goals;
(6) Involve an annual statewide assessment program that provides a report card containing trend data from the past three years on school, school complex, and system performance at selected benchmark grade levels with performance indicators in areas relating to student achievement, safety and well-being, and civic responsibility. These performance indicators shall include but not be limited to:
(A) Student performance relative to statewide content and performance standards;
(B) School attendance and dropout rates; and
(C) Student discipline, seclusion, and restraint information, in total and by unduplicated counts, disaggregated by subgroups consisting of race, including by Asian subgroup; ethnicity; national origin; gender; sex; English learner status; low-income status; students whose achievement is below grade level for the school year on literacy benchmark assessments, math benchmark assessments, or end-of-course assessments; and disability status based upon an individualized education program or upon section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), including but not limited to the following:
(i) In-school suspensions;
(ii) Out-of-school suspensions of one day or less; of two to five days; of six to nine days; of ten to twenty days; and of twenty-one or more days;
(iv) Removals to an alternative education setting by school personnel;
(v) School-related arrests;
(vi) Referrals to law enforcement authorities;
(vii) Withdrawals for other reasons;
(viii) Number of parent or guardian-initiated withdrawals under section 302A-1132;
(ix) Number of school resource officers, either full-time or part-time, and the number of hours assigned to the school per week; and
(x) Other data that the board may approve;
(7) Require that teachers and administrators engage in the continuous professional growth and development that ensure their currency with respect to disciplinary content, leadership skill, knowledge, or pedagogical skill, as appropriate to their position. This requirement may be established by the department in terms of credit hours earned or their equivalent in professional development activity certified by the department as appropriate in focus and rigor;
(8) Establish an explicit link between professional evaluation results and individual accountability through professional development of the knowledge, skill, and professional behavior necessary to the position, by requiring that results of the professional evaluation be used by the department to prescribe professional development focus and content, as appropriate;
(9) Include an annual statewide fiscal accountability program, which includes a published report card that contains trend data on school, school complex, and systemwide plans and results, including:
(A) Amounts allocated;
(B) Amounts expended;
(C) Amounts carried over; and
(D) Any significant changes to the budget, with an explanation for the change; and
(10) Include an evaluation of the effectiveness of complex area superintendents and principals in supporting:
(A) Students’ academic achievement, safety and well-being, and civic responsibility; and
(B) The satisfaction of stakeholders affected by the work of the complex area superintendents and principals, which may be measured by broad-based surveys; and
(C) Fiscal accountability.
(b) The department shall annually post on the department’s website:
(1) Information on the specifics of the implementation of the comprehensive accountability system;
(2) Information on the fiscal requirements and legislative actions necessary to maintain and improve the accountability system; and
(3) Data collected pursuant to subsection (a)(6)(C) on student discipline, as follows:
(A) The total number of students enrolled in the State by complex, school, and subgroup;
(B) The percentage of the school, complex, and State’s total enrollment that the subgroup represents;
(C) The number of students who appear in more than one subgroup;
(D) The disciplinary rate for each discipline measure described in subsection (a)(6)(C), based on the total student enrollment in each school and each complex;
(E) The disciplinary rate for each discipline measure described in subsection (a)(6)(C) with respect to each subgroup; and
(F) The rate of disciplinary disparity for each discipline measure described in subsection (a)(6)(C), with respect to each subgroup, as compared with the subgroup with the lowest disciplinary rate.
(c) The department shall also annually post on its website a state-, complex-, and school-level report for each school that details the past three years and includes an analysis of any disproportionality among student subgroups using the performance indicators in subsection (a)(6). Each report shall be uniformly formatted and designed by the department so as to provide school-based users and the public with all pertinent information. Report data shall be downloadable in raw form. Report information shall include:
(1) Results of school-by-school assessments of educational outcomes;
(2) Summaries of each school’s standards implementation design;
(3) Summary descriptions of the demographic makeup of the schools, with indications of the range of these conditions among schools within Hawaii;
(4) Comparisons of conditions affecting Hawaii’s schools with the conditions of schools in other states;
(5) Other assessments deemed appropriate by the board;
(6) Student discipline, seclusion, and restraint information by school, as required by this section; and
(7) Any other reports required by this section.
(d) The department shall provide electronic access to computer-based financial management, student information, and other information systems to the legislature and the auditor. The department shall submit to the legislature and to the governor, at least twenty days prior to the convening of each regular session, a school-by-school expenditure report that shall include:
(1) The financial analysis of expenditures by the department with respect to the following areas:
(A) Instruction, including face-to-face teaching, and classroom materials;
(B) Instructional support, including pupil, teacher, and program support;
(C) Operations, including non-instructional pupil services, facilities, and business services;
(D) Other commitments, including contingencies, capital improvement projects, out-of-district obligations, and legal obligations; and
(E) Leadership, including school management, program and operations management, and district management; and
(2) The measures of accuracy, efficiency, and productivity of the department, districts, and schools in delivering resources to the classroom and the student.
(e) The superintendent of education is responsible for the development and implementation of an educational accountability system. The system shall include consequences and shall be designed through a collaborative process involving stakeholders that shall include parents, community members, the respective exclusive representatives, as well as others deemed appropriate by the superintendent.
For the purposes of this section, negotiations under chapter 89 shall be between the superintendent or the superintendent’s designee and the respective exclusive representative and shall be limited to the impact on personnel arising from the superintendent’s decision in implementing the educational accountability system. After the initial agreement is negotiated, provisions on the impact of the accountability on personnel may be reopened only upon mutual agreement of the parties.
(f) The department shall:
(1) Annually submit a report to the board and to the legislature, as follows:
(A) The report shall identify discipline-related strategies, alternatives, and resources available to schools and complexes, and shall include the following:
(i) Student discipline, seclusion, and restraint data collected pursuant to subsection (a)(6)(C);
(ii) Data collected in accordance with the data elements shown in the United States Department of Education’s 2015-2016 civil rights data collection relating to school finance, teacher experience and absenteeism, all early childhood education items, advanced placement test-taking items, references to gender identity in the definition of “harassment on the basis of sex”, number of English language learner students enrolled in English language programs by disability status, participation in credit recovery programs, and any civil rights concerns or complaints from children with disabilities placed by school districts in nonpublic schools; and
(iii) Information regarding staffing and contact information for school- and complex-level equity specialists; and
(B) The report may include additional information, as determined by the department, that would assist in better understanding the disciplinary rate or rate of disciplinary disparity of a particular school or complex;
(2) Track the progress made by schools and complexes over the past three years in reducing the disciplinary rates and rate of disciplinary disparity that are referenced in subsection (b)(3)(D) through (F);
(3) Assess the changes in student academic achievement and absenteeism rates over the past three years that correspond to any reduction in disciplinary rates and rates of disciplinary disparity that are referenced in subsection (b)(3)(D) through (F);
(4) Track the use of restraints over the past three years; and
(5) Report annually to the board, and make public on its website, the following:
(A) Changes in the use of discipline over the past three years; and
(B) Information on the extent to which schools and complexes are implementing evidence-based strategies, including positive behavior interventions, support systems, or restorative justice. [L 1996, c 89, pt of §2; am L 1999, c 74, §2 and c 199, §2; am L 2000, c 238, §1; am L 2004, c 51, §56; am L 2014, c 232, §9; am L 2020, c 76, §3]
(a) Notwithstanding collective bargaining agreements, memorandums of agreement, or memorandums of understanding, the superintendent may reconstitute a public school, except a charter school, that has been in restructuring under the No Child Left Behind Act of 2001, Public Law 107-110, for four or more school years and has not made significant advancements toward improving academic performance as determined by a statistical analysis of academic data; provided that the following have been considered:
(1) Student proficiency in reading and math in the period during which the school is in restructuring;
(2) Interventions and other programs being used by the school to address student proficiency;
(3) The number of highly qualified or effective teachers at the school;
(4) Professional development being conducted at the school;
(5) Input from school faculty and staff, complex specialists, and state office program specialists; and
(6) Input from the school community council;
provided further that the superintendent has made a recommendation to the board to reconstitute the school, taking into consideration the recommendation of the complex area superintendent, if any.
(b) In reconstituting a public school, the superintendent may take actions that include:
(1) Replacing all or most of the staff, including teachers, principals, and other support staff;
(2) Entering into a contract with a private entity to manage the school; and
(3) Changing the membership of the school community council.
(c) The department shall negotiate with the respective unions the process of reassigning employees of the school to be reconstituted to other positions within the department for which the employees are qualified.
(d) The department shall follow the current hiring and recruiting procedures for all employees to be employed at the reconstituted school.
(e) The board shall adopt rules pursuant to chapter 91 as may be necessary to implement this section. [L 2011, c 148, §2]
The board shall formulate policy and exercise control as may be necessary to define a common set of educational goals that the schools shall be responsible for fulfilling. The board shall also be responsible for formulating standards for measuring the efforts of each participating school toward achieving those goals each year. The participating schools shall be free to use all reasonable means to accomplish those goals with the resources available to them. [L 1996, c 89, pt of §2; am L 2012, c 133, §15]
(a) The department shall inform all parents and guardians of the student code of conduct and of their responsibilities with respect to ensuring that their children comply with the code. The department also shall provide assistance and advice to parents and guardians in meeting their responsibilities under the code.
(b) The failure of a student to meet the requirements for regular attendance and punctuality shall subject the student’s parent, parents, or guardian to the penalties provided in section 302A-1135. Destruction of school property by a student, in addition to all other legal action that may be taken, shall subject the student’s parent, parents, or guardian to proceedings under section 302A-1153, as appropriate. [L 1997, c 361, §2; am L 2006, c 38, §5; am L 2012, c 133, §19]
A child may be exempted from the required immunizations:
(1) If a licensed physician, physician assistant, or advanced practice registered nurse certifies that the physical condition of the child is such that immunizations would endanger the child’s life or health; or
(2) If any parent, custodian, guardian, or any other person in loco parentis to a child objects to immunization in writing on the grounds that the immunization conflicts with that person’s bona fide religious tenets and practices. Upon showing the appropriate school official satisfactory evidence of the exemption, no certificate or other evidence of immunization shall be required for entry into school. [L 1996, c 89, pt of §2; am L 2009, c 151, §9; am L 2014, c 45, §7]
If at any time there is, in the opinion of the department of health, danger of an epidemic from any of the communicable diseases for which immunization is required under sections 302A-1154 to 302A-1163, no exemption from immunization against the disease shall be recognized. Quarantine shall be a legal alternative to immunization. [L 1996, c 89, pt of §2]
The department of health shall provide all immunizations and tuberculin tests to comply with sections 302A-1154 to 302A-1163, as far as public funds will permit, to each child whose parents, guardians, or custodians cannot afford to have the child immunized or tested for tuberculosis, and who have not been exempted under section 302A-1156. Nothing in this section shall preclude the department of health from distributing immunizations and vaccines to physicians, advanced practice registered nurses, or other authorized persons as required by law or by the rules of the department of health. [L 1996, c 89, pt of §2; am L 1998, c 60, §3]
(a) No child shall attend any school for the first time in the State unless the child presents to the appropriate school official a report from a licensed physician, physician assistant, or advanced practice registered nurse of the results of a physical examination performed within twelve months before the date of attendance at school. A child may attend school provisionally upon submitting written documentation from a licensed physician, physician assistant, advanced practice registered nurse, or other authorized representative of the department of health stating that the child is in the process of undergoing a physical examination. Further documentation showing that the required physical examination has been completed shall be submitted to the appropriate school official no later than three months after the child first attends the school.
(b) Beginning with the 2017-2018 school year, every child entering seventh grade shall present to the appropriate school official written documentation from a licensed physician, physician assistant, or advanced practice registered nurse showing completion of a physical examination performed within twelve months before the date of attendance. The department shall send notification of the physical examination requirement to the child’s parents or guardians, upon the child’s entrance into sixth grade, and post the requirement on the department’s website. By December 31 of each year, the department shall provide to the department of health a list of students attending seventh grade who have not submitted appropriate written documentation, along with directory information as allowed under the federal Family Educational Rights and Privacy Act. [L 1996, c 89, pt of §2; am L 1998, c 60, §4; am L 2000, c 109, §3; am L 2014, c 16, §5 and c 232, §13; am L 2016, c 185, §2]
(a) The department of health shall adopt rules under chapter 91 relating to immunization, physical examination, and tuberculin testing under sections 302A-1154 to 302A-1163. Immunizations required, and the manner and frequency of their administration, shall conform with recognized standard medical practices. The list of diseases and minimum requirements for protection under sections 302A-1154 to 302A-1163 may be revised whenever the department of health deems it necessary for the protection of public health.
(b) The department shall establish by rule standards for documentation of compliance with school health requirements under sections 302A-1154 through 302A-1163.
(c) The department may adopt, amend, or repeal rules pursuant to chapter 91 to establish a list of specific vaccines that are available or may become available. Notwithstanding the notice, public hearing, and comment requirements of chapter 91 and the provisions of chapter 201M, the director of health, in consultation with the state epidemiologist, may adopt, amend, or repeal as rules, the immunization recommendations of the United States Department of Health and Human Services, Advisory Committee on Immunization Practices, including interim recommendations, as they apply to the list of specific vaccines, if any, described in this subsection. The department shall make the adoption, amendment, or repeal of rules regarding United States Department of Health and Human Services, Advisory Committee on Immunization Practices immunization recommendations known to the public by:
(1) Giving public notice of the substance of the proposed rules at least once statewide; and
(2) Posting the full text of the proposed rulemaking action on the Internet as provided in section 91-2.6.
The rules, when adopted, amended, or repealed pursuant to chapter 91 as modified by this section, shall have the force and effect of law. The department may defer the effective date of adopted, amended, or repealed rules to allow sufficient time to ensure compliance with the new, amended, or repealed rules. [L 1996, c 89, pt of §2; am L 2000, c 109, §5; am L 2013, c 231, §2]
(a) Beginning with the 1995-1997 fiscal biennium, the department’s administrative expenditures shall not exceed 6.5 per cent of the total department operating budget, excluding expenditures for agencies administratively attached to the department, unless approved by the legislature.
(b) Not less than seventy per cent of appropriations for the total budget of the department, excluding debt service and capital improvement programs and appropriations for agencies administratively attached to the department, shall be expended by principals. [L 1996, c 89, pt of §2; am L 2004, c 51, §57; am L 2014, c 232, §15]
In addition to any other powers and duties authorized by law, the attorney general shall have all
powers necessary or convenient to effectuate the purposes of this chapter, including, without
limitation, the following powers:
(1) Issue notary public commissions to applicants pursuant to this chapter;
(2) Adopt, amend, or repeal rules pursuant to chapter 91;
(3) Suspend or revoke any commission for any cause prescribed by this chapter or for any
violation of the rules adopted pursuant to this chapter, and refuse to issue any commission for
any cause that would be grounds for suspension or revocation of a commission; and
(4) Impose administrative fines for any cause prescribed by this chapter or for any violation
of the rules adopted pursuant to this chapter.
Every notary public may administer oaths in all cases in which oaths are by law authorized or
required to be taken or administered, or in which the administering of an oath may be proper. All
oaths administered before June 23, 1888, by notaries public are declared valid and binding.
(a) Beginning November 1, 2022, as of the sixty-first calendar day after election or appointment to office, it shall be unlawful for each county mayor, while holding that office, to maintain any other employment, maintain a controlling interest in a business, or receive any emolument.
(b) Where a mayor has a controlling interest in a business, in order to comply with this section, the mayor may transfer the interest to a blind trust within sixty-one days of election or appointment.
(c) As used in this section:
“Blind trust” means a trust agreement where neither the trustor nor the beneficiaries have any control or influence over, or knowledge of, the assets in the trust, and which complies with the definition of “qualified blind trust” in the Ethics in Government Act of 1978, 5 U.S.C. App. 4 section 101 et seq., as amended.
“Emolument” means any salary, fee, payment, wage, earning, allowance, stipend, honorarium, or reward; provided that “emolument” does not include the salary or benefits for service as a county mayor or any pension income; retirement income; social security payment; non-controlling ownership of stocks, mutual funds, or real estate; rental income; or other form of passive income. [L 2020, c 75, §2]
Section 4. All eligible public officers, before entering upon the duties of their respective offices, shall take and subscribe to the following oath or affirmation: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States, and the Constitution of the State of Hawaii, and that I will faithfully discharge my duties as …………………… to the best of my ability.” As used in this section, “eligible public officers” means the governor, the lieutenant governor, the members of both houses of the legislature, the members of the board of education, the members of the national guard, State or county employees who possess police powers, district court judges, and all those whose appointment requires the consent of the senate. [Ren and am Const Con 1978 and election Nov 7, 1978; am SB 1440 (1992) and election Nov 3, 1992]
SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
TIME SHARE COMMISSIONERS OF DEEDS
§ -1 Commissioners; appointment. The governor may appoint commissioners who shall serve for four years from the date of the individual commissioner’s respective appointment, unless removed by the governor.
§ -2 Oath and seal. (a) Within three months of appointment, a commissioner shall:
(1) Cause an official seal to be prepared, upon which seal shall appear the commissioner’s name and the words “commissioner of deeds for Hawaii”; and
(2) Take and subscribe an oath to faithfully perform the duties of the commissioner’s office; provided that the oath shall be taken before:
(A) A notary public in the State or any other state;
(B) Any officer of the United States diplomatic or consular service resident in any foreign country or port, when certified by the officer under the officer’s seal of office; or
(C) Any person authorized by the law of any foreign country to take an acknowledgement or proof; provided that the acknowledgement or proof shall be accompanied by a certificate to the effect that the person taking the acknowledgement or proof is duly authorized to do so and that the acknowledgement or proof is in a manner prescribed by the laws of the foreign country or a treaty or international agreement of the United States; provided further that a certificate under this subparagraph may be issued by:
(i) A diplomatic or consular officer of the United States under the seal of the officer’s office;
(ii) A diplomatic or consular officer of the foreign country under the seal of the officer’s office with the signature or facsimile of the signature of the diplomatic or consular officer of the United States; or
(iii) An apostille in the case of a foreign country that is party to the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents.
(b) A commissioner’s oath of office, signature, and an impression of the commissioner’s seal shall be transmitted to and filed with the office of the lieutenant governor.
(c) For purposes of this section, a diplomatic or consular officer includes any minister, consul, vice consul, charge d’affaires, consular or commercial agent, or a vice consular or vice commercial agent.
§ -3 Powers; charges. A commissioner, in any foreign country, in international waters, and in any possession, territory, or commonwealth of the United States, may administer oaths and take acknowledgements and proofs of execution of any deed, assignment of lease, apartment deed and ground lease, condominium conveyance document, mortgage, deed of trust, contract, power of attorney, or any other instrument or writing to be used or recorded in the State in connection with:
(1) A time share interest;
(2) Any property subject to a time share plan; or
(3) The operation of a time share plan that includes any property located within the State;
provided that the instrument or writing is executed outside of the fifty states and the District of Columbia. Oaths, acknowledgements, and proofs of execution shall be taken or made in the manner provided by the laws of the State, including but not limited to sections 502-42, 502-43, 502-48, 502-61, 502-62, and 502-63, and shall be certified by the commissioner under the commissioner’s official seal. The certification shall be endorsed on or attached to the instrument or writing and shall have the same effect as if made or taken in the State by a notary public commissioned in the State. Charges made by commissioners for services rendered shall be no higher than the rates authorized by any law governing similar services rendered by notaries within the jurisdictions in which the services are performed.
§ -4 Records. Each commissioner shall keep a record of every acknowledgement, oath, and proof of execution in a book of records. Each record shall set forth, at a minimum, the date of the acknowledgement, the parties to the instrument, the persons making the acknowledgements, and a memorandum as to the nature of the instrument acknowledged. For oaths and affidavits, the record shall set forth, at a minimum, the names of the parties making the oath or affidavit, the date of the oath or affidavit, the nature of the instrument, and the date the oath was administered.
§ -5 Instructions. The lieutenant governor shall prepare and forward to each commissioner instructions and forms in conformity with law and a copy of this chapter.
§ -6 Construction of statutes. This chapter shall not be construed as repealing or amending chapter 502.
§ -7 Notice of legal effect. (a) A commissioner shall provide to each person whose signature is witnessed or acknowledged by the commissioner a written notice in substantially the following form:
“LEGAL EFFECT OF CERTIFICATION BY A COMMISSIONER OF DEEDS
A certification by a Hawaii commissioner of deeds is intended only to confirm that a document was signed by a person whose signature appears on it. It does not validate the substance, contents, or legal effect of the document, nor indicate that the document has been approved or endorsed by any governmental authority, including the State of Hawaii. The documents that you are signing may have legal consequences and you may have rights under Hawaii law. By signing below, you acknowledge that you have read and understand this.”
(b) If the person whose signature is witnessed or acknowledged by the commissioner does not speak English, a translation of the notice required by subsection (a) shall be provided to the person in the predominant language spoken in the country in which the execution or acknowledgement takes place; provided that:
(1) The content of the notice may be varied as necessary to convey the intended concepts in the other language; and
(2) Neither the commissioner nor any other person shall be liable for errors in translation of the notice required by subsection (a) so long as a good faith effort to accurately translate the notice was made.
(c) A commissioner of deeds shall retain, for three calendar years from the date upon which the notice was executed, the original executed notice or a copy made by any means capable of providing an accurate reproduction of the executed notice.
(d) Failure to provide the notice required by subsection (a) shall subject the commissioner of deeds to a penalty in an amount to be established by the lieutenant governor by rule adopted pursuant to chapter 91 but shall not render any agreement void or voidable, nor shall it constitute a defense to any action to enforce the agreement or any action for breach of the agreement by any party to the agreement.
§ -8 Bond. (a) Each commissioner forthwith and before entering upon the duties of the commissioner’s office shall execute at the commissioner’s own expense an official surety bond or deposit with the lieutenant governor a cash bond, which in either case shall be in the sum of $1,000. Each bond shall be approved by the office of the lieutenant governor.
(b) The obligee of each bond shall be the State and the condition contained therein shall be that the commissioner will well, truly, and faithfully perform all the duties of the commissioner’s office that are then or may thereafter be required, prescribed, or defined by law or by any rule made under the express or implied authority of any statute, and all duties and acts undertaken, assumed, or performed by the commissioner by virtue or color of the commissioner’s office. The surety on any surety bond shall be a surety company authorized to do business in the State. After approval, the bond shall be deposited and kept on file in the office of the lieutenant governor. The lieutenant governor shall keep a book to be called the “bond record”, in which the lieutenant governor shall record the data in respect to each of the bonds deposited and filed in the lieutenant governor’s office.
(c) A commissioner who files a cash bond may cancel the bond by giving thirty days notice in writing to the lieutenant governor; provided that the security for the bond shall not be returned for a period of six years after the effective date of cancellation of the bond or upon posting a surety bond meeting the requirements set forth in this section, whichever shall occur first.
§ -9 Liabilities; limitations on; official bond. (a) In the performance of a commissioned act, a commissioner’s liability shall be limited to a failure by the commissioner to perform properly the actions required for oaths, acknowledgements, and proofs of execution. The commissioner’s liability shall not be based on statements in a document apart from the commissioner’s certificate.
(b) For the official misconduct or neglect of a commissioner or breach of any of the conditions of the commissioner’s official bond, the commissioner and the surety on the commissioner’s official bond shall be liable to the party injured thereby for all the damages sustained. The party shall have a right of action in the party’s own name upon the bond and may prosecute the action to final judgment and execution. The liability of the surety shall not exceed the amount of the bond issued to the commissioner of deeds for whom the bond was issued.”
SECTION 2. 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 2013-2014 and the same sum or so much thereof as may be necessary for fiscal year 2014-2015 for expenses incurred by the office of the lieutenant governor related to establishing and administering the commissioners of deeds program.
The sums appropriated shall be expended by the office of the lieutenant governor for the purposes of this Act.
SECTION 3. This Act shall take effect on July 1, 2050.
Each notary public forthwith and before entering upon the duties of the [
notary’s office] notary public’s commission shall execute, at the [ notary’s] notary public’s own expense, an official surety bond which shall be in the sum of $1,000. Each bond shall be approved by a judge of the circuit court.
The obligee of each bond, or bond continuation certificate, shall be the State and the condition contained therein shall be that the notary public will well, truly, and faithfully perform all the duties of the [
notary’s office] notary public’s commission which are then or may thereafter be required, prescribed, or defined by law or by any rule made under the express or implied authority of any statute, and all duties and acts undertaken, assumed, or performed by the notary public by virtue or color of the [ notary’s office.] notary public’s commission. The surety on [ any such] each bond, or bond continuation certificate, shall be a surety company authorized to do business in the State. After approval, the bond[ ,] or bond continuation certificate shall be deposited and kept on file in the office of the clerk of the circuit court of the judicial circuit in which the notary public resides. The clerk shall keep a book to be called the “bond record”, in which the clerk shall record [ such] data [ in respect] relating to each of the bonds or bond continuation certificates deposited and filed in the clerk’s office as the attorney general may direct.”
Whenever by any law, regulation, ordinance, rule or order of court, or any rule of any department of the state government or of any subdivision thereof, any person shall be required to give any written bond or undertaking for the performance of any contract or the provisions of any license, or for the indemnity or security of any person, party or any officer, there shall be attached to the bond or undertaking an affidavit of each of the sureties thereon, duly verified by oath, from which it shall appear that the sureties have property situate within the State subject to execution and that the sureties taken together are worth in the property the amount of the penalty specified in the bond or undertaking, over and above all of their debts and liabilities. In default of the justification no bond or undertaking shall be accepted. Notwithstanding any provision requiring two or more sureties, if any such bond or undertaking is executed by the principal and by any corporation, organized for the purpose of becoming surety on such bonds, authorized under the laws of the United States or of the State to act as surety, and doing business in the State under the provisions of the laws of the United States or of the State, if a foreign corporation, and under the laws of the State, if a Hawaiian corporation, the corporation may be accepted as sole surety on the bond, whenever, in the opinion of the officer or officers whose duty it is to approve the bond, the rights of all parties in interest will be fully protected. When the surety on any such bond is a corporation authorized to do a surety company business, no justification shall be required.
Nothing herein shall be deemed to prevent the deposit of cash or other security in lieu of any surety or sureties, when permitted by the law, regulation, ordinance, rule or order concerned. [L 1915, c 197, §1; am L 1917, c 78, §1; RL 1925, §161; am L 1931, c 163, §1; RL 1935, §160; RL 1945, §497; RL 1955, §7-21; HRS §78-20; am L 1973, c 32, §1]
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