Bill Text: HI HB1668 | 2012 | Regular Session | Introduced

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Bill Title: Department of Education; Tenure

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced - Dead) 2012-02-06 - (H) The committees on LAB recommend that the measure be HELD. The votes were as follows: 11 Ayes: Representative(s) Rhoads, Yamashita, Aquino, Cullen, Ichiyama, M. Lee, Luke, Saiki, Takumi, Fontaine, Johanson; Ayes with reservations: none; Noes: none; and 1 Excused: Representative(s) Souki. [HB1668 Detail]

Download: Hawaii-2012-HB1668-Introduced.html

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HOUSE OF REPRESENTATIVES	H.B. NO.	1668
TWENTY-SIXTH LEGISLATURE, 2012
STATE OF HAWAII

A BILL FOR AN ACT

 

 

relating to education.

 

 

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

 

     SECTION 1.  Chapter 89, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§89-     Employment; teachers; educational officers.  (a)  Beginning with contracts negotiated for the contract period beginning July 1, 2013, any collective bargaining contract made between the exclusive representative of bargaining units (5) and (6) and a public employer shall not result in the vesting of tenure or continued expectations of employment in an employment relationship.

     (b)  Any member of bargaining units (5) or (6) with tenured status shall lose such status as of the expiration of the collective bargaining contract covering the 2011-2012 contract period."

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

     "§302A-     Civil service application.  (a)  Members of bargaining units (5) and (6) shall be board of education appointees exempt from chapter 76, but the application of section 89-6 with respect to collective bargaining coverage and the employer for purposes of collective bargaining shall not be affected.  Except for tenure and rights and benefits specifically conditioned upon membership in the civil service, the wages, hours, benefits, and other terms and conditions of employment for these employees in existence on July 1, 2013, shall remain in effect, but may be changed as provided in chapter 89 or 89C, as applicable."

     SECTION 3.  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;

         (C)  The special assistant to the state librarian and one secretary for the special assistant to the state librarian; and

         (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;

    (13)  Positions filled by inmates, kokuas, patients of state institutions, persons with severe physical or mental handicaps participating in the work experience training programs, and students and positions filled through federally funded programs that provide temporary public service employment such as the federal Comprehensive Employment and Training Act of 1973;

    (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 Hawaii 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 not more than twenty-six per cent of the authority's work force 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 severely handicapped persons 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; and

    (26)  Positions in the Hawaii national guard youth and adult education programs.

     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."

     SECTION 4.  Section 302A-610, Hawaii Revised Statutes, is amended to read as follows:

     "§302A-610  Job-sharing.  (a)  A job-sharing program is established in the department subject to the requirements in this section.

     (b)  The superintendent shall announce the job-sharing program to all full-time, [tenured,] certificated personnel of the department, excluding educational officers, and shall solicit the voluntary requests of personnel interested in participating in the program.

     The superintendent, in consultation with the recognized employee bargaining units, shall formulate and adopt guidelines for the implementation of this section.  Employees who respond to the announcement and other persons who request information shall receive a full written description of the terms of the program when the guidelines are finalized, and those persons desiring to participate may apply to participate in the program.  The employees who apply for participation shall obtain the concurrence of their immediate supervisor, other appropriate personnel officers, and the superintendent.  Those persons who qualify then shall be interviewed by a personnel officer of the department.

     Upon the selection of a permanent, full-time employee for job-sharing, the superintendent shall convert the position of the employee into two job-sharing positions, one of which shall be filled by the employee, and the other by the hiring of a new hire or by another [tenured,] certificated employee of the department, excluding any educational officer.

     A person hired to fill a job-sharing position shall be recruited through this section and shall possess the minimum requirements of the full-time position that was converted into a job-sharing position under this section.

     (c)  Benefits that can be divided in half, such as the number of days of sick leave, and are considered to be an equitable share when divided, shall be computed on that basis.  Benefits that cannot be divided, such as eligibility for membership in the public employees' health plan, shall be given to the job-sharers without the foregoing division, notwithstanding any provision of chapter 87 or 88 to the contrary.  The newly hired job-sharer shall be excluded from collective bargaining under chapter 89.

     The full-time permanent employee shall not lose membership in an employee bargaining unit because of participation in this program, any other law to the contrary notwithstanding.  Union membership or service fees paid by the job-sharer under this section shall be at a level consistent with normal union membership dues or service fees.  The State's contribution to the job-sharers' prepaid health, prepaid dental, and group life insurance plans shall be the same as for full-time employees, any other law to the contrary notwithstanding.  Job-sharers shall be covered under chapter 386 and the applicable provisions of chapter 383.  [Service credit for the tenured teacher participating in the program under this section shall be given on the same basis as that for full-time employees.]  Nothing in this section shall be construed, however, to vest any person with any rights to permanent employment status, whether under civil service or otherwise, which did not exist prior to the participation of the person in the job-sharing program.  [The granting of tenure shall be under applicable statutes.]  No full-time position shall be abolished or reduced to a half-time position except for the purpose of job-sharing.  [In a reduction-in-force procedure, consideration of a job-sharer's tenure rights shall be on the same basis as that of a full-time employee.]  Nothing in this section shall impair the employment or employment rights or benefits of any employee.

     [(d)  Tenured employees sharing full-time positions with other tenured employees shall not be required to relinquish their duty-free period.  The job-sharing team shall submit to its principal a job-sharing proposal that preserves its duty-free period and meets the educational needs of its students.  Where the job-sharing team cannot reach a reasonable scheduling agreement, the team may agree to waive its contractual rights by executing a contract waiver.

     (e)] (d)  Participation in the program shall require the commitment on the part of all parties to a contractual agreement for one year; provided that the employee shall be given the option to renew the contract for another year, subject to approval by the immediate supervisor and personnel officer of the department.

     [(f)] (e)  No job-sharing position committed to a specified period of time under the terms of the contractual agreement shall be converted to full-time status before the termination of the contractual agreement.  A job-sharing vacancy created by the resignation, retirement, or other permanent or temporary severance of employment with the department on the part of any person may be filled by the department either through recruitment of another person pursuant to this section, or by increasing the remaining half-time job-sharing person to full-time employment by mutual agreement.

     [(g)] (f)  Upon the termination of contractual agreements, all job-sharing positions shall be renegotiated or reconverted to full-time positions, and the employees who held the full-time positions prior to their participation in the job-sharing program under this section shall be entitled to resume their positions without loss of [previous tenure or other] employee rights.

     [(h)] (g)  Beginning with the 2002-2003 school year, this section shall be interpreted as though the term "certificated" read "licensed" as the latter term is used in subpart D, and as circumstances require."

     SECTION 5.  Section 302A-633.5, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§302A-633.5[]]  School personnel engaged in instructional work, other than teachers and educational officers.  (a)  The board of education shall appoint 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, and alternative school project coordinators as may be required to carry out the purposes of this chapter.  The board, in consultation with the department of human resources development, shall prescribe the duties and qualifications for positions, adopt classification systems, classify and fix the compensation of positions accordingly, and provide a classification appeals procedure[, and establish probationary and other requirements for tenure that protects employees from being disciplined without proper cause].

     (b)  Employees in positions under subsection (a) shall be board of education appointees exempt from chapter 76, but the application of section 89-6 with respect to collective bargaining coverage and the employer for purposes of collective bargaining shall not be affected.  Except for rights or benefits specifically conditioned upon membership in the civil service, the wages, hours, benefits, and other terms and conditions of employment for these employees in existence on July 1, 2002, shall remain in effect, but may be changed as provided in chapter 89 or 89C, as applicable.  [Any employee who is a member of the civil service on July 1, 2002 shall be granted tenure by the board of education without the necessity of meeting any probationary or other requirements for tenure that the board of education establishes.]"

     SECTION 6.  Section 302B-10, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

     "(d)  The department, in conjunction with the office, shall facilitate and encourage the movement of instructional personnel between the department and charter schools; provided that[:

     (1)  Comparable] comparable and verifiable professional development and employee evaluation standards and practices, as determined and certified by the office, are in place in charter schools for instructional staff[;

     (2)  Licensed charter school teachers, as determined by the Hawaii teacher standards board, who are not yet tenured in the department and are entering or returning to the department after full-time employment of no less than one full school year at a charter school, shall be subject to no more than one year of probationary status; and

     (3)  Tenured department licensed teachers, as determined by the department, who transfer to charter schools shall not be required to serve a probationary period]."

     SECTION 7.  Section 302A-608, Hawaii Revised Statutes, is repealed.

     ["[§302A-608]  Reemployed teachers; rights.  After the completion of the probationary period without discharge, such teachers as are thereupon reemployed shall continue in service in the public schools during good behavior and competent service and prior to the age at which the teachers are eligible for retirement, pursuant to section 88-73 or 88-281, and shall not be discharged or demoted except for one or more of the causes specified in section 302A-609."]

     SECTION 8.  Section 302A-609 , Hawaii Revised Statutes, is repealed.

     ["[§302A-609]  Causes for discharge or demotion; preferred eligibility list.  Causes for the discharge or demotion of a teacher shall be inefficiency or immorality; wilful violations of policies and rules of the department; or for other good and just cause.  The department, without a hearing, may terminate the tenure rights of a teacher who fails to return to service, except when caused by illness, following the expiration of an approved leave of absence.  Teachers may also be dismissed because of a decrease in the number of pupils or for other causes over which the department has no control.  Dismissals due to a decrease in the number of pupils or for causes over which the department has no control shall begin with those teachers with the least number of years of service.  The teachers so dismissed shall be placed on a preferred eligibility list and shall have the right to be restored to duty in the order of length of service whenever vacancies occur in which the teacher is qualified."]

     SECTION 9.  Section 302A-611, Hawaii Revised Statutes, is repealed.

     ["[§302A-611]  Authorized leaves of absence; tenure status unaffected.  The granting of authorized leaves of absence by the department to regularly employed teachers shall not affect any of the tenure rights that the teacher may have acquired prior thereto under section 302A-608."]

     SECTION 10.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 11.  This Act shall take effect on July 1, 2013; provided that it shall apply to contracts negotiated after the expiration of the 2011-2012 contract period.

 

INTRODUCED BY:	_____________________________

 

 

Report Title:

Department of Education; Tenure

 

Description:

Eliminates the vesting of tenure for certain employees of the Department of Education.

 

 

 

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