[§302A-601.5] Employees of the department of education and teacher trainees in any publicschool; criminal history record checks.  (a)  The department of education, including the Hawaii state publiclibrary system, shall develop procedures for obtaining verifiable informationregarding the criminal history of persons who are employed or seekingemployment in any position, including teacher trainees, that places them inclose proximity to children.  These procedures shall include criminal historyrecord checks in accordance with section 846-2.7.

Informationobtained pursuant to this subsection shall be used exclusively by the employeror prospective employer for the purpose of determining whether a person issuitable for working in close proximity to children.  All such decisions shallbe subject to applicable federal laws and regulations currently or hereafter ineffect.

(b)  Theemployer or prospective employer may refuse to employ, and may:

(1)  Refuseto issue a teaching or other educational certificate;

(2)  Revoke the teaching or other educationalcertificate;

(3)  Refuse to allow or continue to allow teachertraining; or

(4)  Terminate theemployment of any employee or deny employment to an applicant,

if the person has been convicted of a crime, and ifthe employer or prospective employer finds by reason of the nature andcircumstances of the crime that the person poses a risk to the health, safety,or well-being of children.  Refusal, revocation, or termination may occur onlyafter appropriate investigation and notification to the employee or applicantfor employment of results and planned action, and after the employee orapplicant for employment is given an opportunity to meet and rebut thefinding.  Nothing in this subsection shall abrogate any applicable appealrights under chapters 76 or 89, or administrative regulation of the departmentof education.

(c)  This section shall not be used by thedepartment to secure criminal history record checks on persons who have beenemployed continuously by the department, including the state public librarysystem, on a salaried basis prior to July 1, 1990.

(d)  Notwithstanding any other law to thecontrary, for purposes of this section, the department of education, includingthe Hawaii state public library system, shall be exempt from section 831-3.1and need not conduct investigations, notifications, or hearings under thissection in accordance with chapter 91. [L 2003, c 95, pt of §4]

 

Cross References

 

  Private school record checks, see §302C-1.

 

Attorney General Opinions

 

  Bargained for random drug testing program for public schoolteachers with appropriate procedural protections is constitutional and wouldnot violate either the federal or state Constitution.  If a court were to findsuch a program to violate either the federal or state Constitution, thedoctrine of qualified immunity would bar personal liability for any stateofficial; if a court were to impose personal liability, based upon past historyand practice, the legislature would fund payment of the claims.  Att. Gen. Op.08-1.