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



Information
obtained pursuant to this subsection shall be used exclusively by the employer
or prospective employer for the purpose of determining whether a person is
suitable for working in close proximity to children.  All such decisions shall
be subject to applicable federal laws and regulations currently or hereafter in
effect.



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



(1)  Refuse
to issue a teaching or other educational certificate;



(2)  Revoke the teaching or other educational
certificate;



(3)  Refuse to allow or continue to allow teacher
training; or



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



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



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



(d)  Notwithstanding any other law to the
contrary, for purposes of this section, the department of education, including
the Hawaii state public library system, shall be exempt from section 831-3.1
and need not conduct investigations, notifications, or hearings under this
section 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 school
teachers with appropriate procedural protections is constitutional and would
not violate either the federal or state Constitution.  If a court were to find
such a program to violate either the federal or state Constitution, the
doctrine of qualified immunity would bar personal liability for any state
official; if a court were to impose personal liability, based upon past history
and practice, the legislature would fund payment of the claims.  Att. Gen. Op.
08-1.