Bill Text: HI HB1933 | 2022 | Regular Session | Amended
Bill Title: Relating To Persons Working With Children.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2022-03-01 - The committee(s) on JHA recommend(s) that the measure be deferred. [HB1933 Detail]
Download: Hawaii-2022-HB1933-Amended.html
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
1933 |
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THIRTY-FIRST LEGISLATURE, 2022 |
H.D. 2 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO PERSONS WORKING WITH CHILDREN.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
"Chapter
RULES OF ETHICS
APPLICABLE TO PERSONS WORKING WITH CHILDREN ON BEHALF OF THE STATE
PART I. GENERAL PROVISIONS
§ -1 Short title. This chapter shall be known as and may be cited as "Calvin's Law".
§ -2 Definitions. As used in this chapter, unless the context otherwise requires:
"Child" means a person less than eighteen years of age.
"Client" means any person who receives services by a covered person in any matter involving a child.
"Covered person" means any person who is contracted, subcontracted, assigned, delegated, ordered, appointed, or in any other act allowed by a state agency to provide services to a child, including the contracted person's employees or subcontractors. "Covered person" includes guardians ad litem, fact finders, child custody evaluators, therapists, counselors, and social workers. "Covered person" does not include any:
(1) Employee of the State or a county; or
(2) Person whose duties are primarily teaching or instructing students or who works for an entity whose primary trade or business is education.
"Firm" means an entity in which two or more covered persons work as officers, employees, contractors, or subcontractors.
"Matter" means any proceeding, application, fact-finding, trial, hearing, custody evaluation, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties.
"State agency" means the executive or judicial branches of state government, including departments, offices, commissions, boards, or other agencies within or attached to those branches.
PART II. CONFLICTS OF INTEREST
§ -11 Conflict of interests; generally. (a) Except as provided in subsection (b), a covered person shall not provide services to a client if the services involve a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) The services to the client will be directly adverse to another person receiving services from the covered person; or
(2) There is a significant risk that the provision of services to the client will be materially limited by:
(A) The covered person's responsibilities to another person who is currently receiving or formerly received services from the covered person;
(B) A personal interest of the covered person; or
(C) A pecuniary interest of the covered person.
(b) Notwithstanding the existence of a concurrent conflict of interest under subsection (a), a covered person may provide services to a client if:
(1) The covered person reasonably believes that the covered person will be able to provide competent and diligent services to each affected person who is receiving or previously received services;
(2) The provision of services is not prohibited by law;
(3) The services do not involve the assertion of a claim by one client against another client to whom the covered person is also providing services in the same proceeding; and
(4) Each affected person or an appropriate guardian of the affected person gives consent after consultation, confirmed in writing.
(c) When the provision of services to multiple persons in a single matter is contemplated, the consultation shall include an explanation of the implications of the common provision of services, including both the advantages and the risks involved.
§ -12 Conflict of interest; prohibited transactions. (a) A covered person shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client or a person connected to a matter related to the client unless:
(1) The transaction and terms on which the covered person acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing that can be reasonably understood by the client;
(2) The client is informed in writing of the transaction and is given a reasonable opportunity to seek the advice of independent legal counsel in the transaction; and
(3) The client consents in writing to the essential terms of the transaction and the covered person's role in the transaction.
(b) A covered person shall not:
(1) Use information relating to the provision of services to a client to the disadvantage of the client except as otherwise permitted or required by law;
(2) Solicit any substantial gift from a client or any person involved in a matter related to the client;
(3) Provide financial assistance to a client or a person involved in a matter related to the client;
(4) Accept compensation for the provision of services to a client from a person other than the client unless:
(A) The client provides written consent after consultation;
(B) There is no interference with the covered person's independence of professional judgment; and
(C) Information relating to the client is protected as required by this chapter; or
(5) Have sexual relations with any person involved in a matter related to a client unless a consensual sexual relationship existed between them at the time when the covered person began providing services to the client.
(c) A covered person who is related to another covered person as a parent, child, sibling, domestic partner, or spouse shall not provide services to a client if those services are directly adverse to the client that the covered person knows is being provided services by the other covered person, except upon written consent by the client after consultation regarding the relationship.
(d) If multiple covered people are working in the same firm, a prohibition in this section that affects one covered person shall apply to any other covered person in the same firm.
(e) A covered person shall not provide services to a client in any matter involving a lawyer or law firm with whom the covered person has a personal relationship, unless the client consents after consultation and confirms consent in writing.
§ -13 Conflict of interest; former client. (a) A covered person who has formerly provided services to a client in a matter shall not thereafter provide services to another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation and confirms the consent in writing.
(b) A covered person shall not knowingly provide services to a person in the same or a substantially related matter in which a firm with which the covered person formerly was associated had previously provided services to a client:
(1) Whose interests are materially adverse to that person; and
(2) About whom the covered person had acquired information protected by subsection (c) that is material to the matter; unless the former client consents after consultation and confirms the consent in writing.
(c) A covered person who has formerly provided services to a person in a matter or whose present or former firm has formerly provided services to a person in a matter shall not thereafter:
(1) Use information relating to the provision of services to the disadvantage of the person except as permitted or required by law with respect to that person, or when the information has become generally known; or
(2) Reveal information relating to the services provided except as permitted or required by law with respect to that person.
§ -14 Imputation of conflicts of interests; generally. (a) While covered persons are associated in a firm, none of the covered persons shall knowingly provide services to a person when any one of the covered persons providing services alone would be prohibited from doing so by section -11 or -13, unless the prohibition is based on a personal interest of the covered person and does not present a significant risk of materially limiting the provision of services to a client by the remaining covered persons in the firm.
(b) When a covered person has terminated an association with a firm, the former firm is not prohibited from thereafter providing services to a new client with interests materially adverse to those of a client who was provided services by the departed covered person, unless:
(1) The matter is the same or substantially related to that in which the departed covered person who provided services to the original client; and
(2) Any covered person remaining in the firm has information protected by section -13(c) that is material to the matter.
(c) When a covered person becomes associated with a firm and is prohibited from providing services to a client because the covered person's former firm has provided services to a person whose interests are materially adverse to that client in the same or a substantially related matter, other covered persons in the firm may not thereafter provide services to the client unless:
(1) The disqualified covered person did not participate in the matter and has no confidential information regarding the matter;
(2) The disqualified covered person is timely screened from any participation in the matter and is apportioned no part of the fee from the matter; and
(3) Written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this section.
(d) A disqualification of an individual covered person prescribed by this section may be waived by the affected client under the conditions stated in section -11.
(e) The disqualifications of covered persons associated in a firm with former or current government covered persons shall be governed by section -15.
§ -15 Special conflicts of interest for former government officers and employees. (a) Except as law may otherwise expressly permit, in addition to the existing restrictions in post-employment as stated in chapter 84, a covered person who has formerly served as a public officer or employee of the government:
(1) Is subject to section -13(c); and
(2) Shall not otherwise provide services to a client in connection with a matter in which the covered person participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its consent to the provision of services, confirmed in writing after consultation and the client consents in writing after consultation.
(b) When a covered person is disqualified from providing services under subsection (a), no covered person in a firm with which that covered person is associated shall knowingly undertake or continue providing services in such a matter unless:
(1) The disqualified covered person is timely screened from any participation in the matter and is apportioned no part of the fee from the matter; and
(2) Written notice is promptly given to the appropriate government agency to enable the government agency to ascertain compliance with the provisions of this section and the client consents in writing after consultation.
(c) Except as expressly permitted by law, a covered person having information that the covered person knows is confidential government information about another person, acquired when the covered person was a public officer or employee, shall not provide services to a client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. A firm with which the covered person is associated may provide services in the matter only if the disqualified covered person is timely screened from any participation in the matter and is apportioned no part of the fee from the matter and the client gives written consent after consultation with an attorney.
(d) As used in this section:
"Confidential government information" means information that has been obtained under governmental authority and which, at the time this section is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public.
"Matter" includes any matter covered by the conflict of interest rules of the appropriate government agency.
§ -16 Former third-party neutrals. (a) A covered person shall not provide services to anyone in the same or substantially related matter in which the covered person participated personally and substantially as a judge, adjudicative officer, arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding consent after disclosure, confirmed in writing.
(b) A covered person shall not negotiate for employment with any person who is involved as a party or as a covered person for a party in a matter in which the covered person is participating personally and substantially as a judge or other adjudicative officer, or arbitrator, mediator, or other third‑party neutral.
(c) If a covered person is disqualified by subsection (a), no covered person in a firm with which that covered person is associated may knowingly undertake or continue to provide services in the matter unless:
(1) The disqualified covered person is screened from any participation in the matter and is apportioned no part of the fee from the matter; and
(2) Written notice is promptly given to the parties and any appropriate tribunal to enable the parties to ascertain compliance with the provisions of this section.
PART III. OTHER PROVISIONS
§ -21 Reasonableness of fees. A covered person shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee shall include:
(1) The time and labor required;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the covered person;
(3) The fee customarily charged in the locality for similar services;
(4) Any time limitations imposed by the client or by the circumstances;
(5) The nature and length of the professional relationship with the client; and
(6) The experience, reputation, and ability of the covered person performing the services.
§ -22 Expediting services. A covered person shall make reasonable efforts to expedite services consistent with the legitimate interests of the client.
§ -23 Candor before a tribunal. (a) A covered person shall not knowingly:
(1) Make a false statement of material fact or law to a tribunal;
(2) Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; or
(3) Offer evidence that the covered person knows to be false; provided that if a covered person has offered material evidence and comes to know of its falsity, the covered person shall take remedial measures to the extent reasonably necessary to rectify the consequences.
(b) The duties stated in subsection (a) shall continue to the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by law.
(c) A covered person shall present all evidence to a court or other tribunal.
§ -24 Fairness to opposing party. A covered person shall not:
(1) Unlawfully obstruct, or counsel or assist another person to unlawfully obstruct, another party's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value;
(2) Falsify or omit evidence, or counsel or assist a witness to testify falsely;
(3) Offer an inducement that is prohibited by law or pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness' testimony or the outcome of the case;
(4) Knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; or
(5) Request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
(A) The person is a relative or an employee or other agent of a client; and
(B) The covered person reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.
§ -25 Truthfulness in statements to others. In the course of providing services to a client, a covered person shall not knowingly:
(1) Make a false statement of material fact or law to a third person; or
(2) Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.
§ -26 Factual findings; standard of proof. (a) A covered person making a recommendation to a tribunal shall base any and all recommendations on the relevant evidence standard, as defined in rule 401 of the Hawaii Rules of Evidence.
(b) A covered person working on a matter involving a child, in which it is reasonably foreseeable that the covered person's work product will be used by a tribunal, child custody evaluator, or other fact finder, shall keep reasonably detailed records that the tribunal, child custody evaluator, or other fact finder can use for their purposes.
PART IV. COMPLAINTS; PENALTIES
§ -31 Complaints. (a) Any person aggrieved by the violation of this chapter by a covered person may file a complaint with:
(1) The state agency that contracted, subcontracted, assigned, delegated, ordered, appointed, or in any other act allowed the covered person to provide services in the matter; and
(2) An applicable licensing board, if the covered person is licensed.
(b) Each state agency that contracts, subcontracts, assigns, delegates, orders, appoints, or in any other act allows a covered person to provide services in the matter and applicable licensing board shall adopt rules and procedures to receive, investigate, and dispose of complaints.
(c) A state agency that contracts, subcontracts, assigns, delegates, orders, appoints, or in any other act allows a covered person to provide services in the matter or an applicable licensing board shall fine a covered person $ for each violation of this chapter; provided that this penalty shall be in addition to any other penalties or remedies available by law.
§ -32 Contracts voidable. Notwithstanding any other law to the contrary, if a state agency determines that a covered person has violated a provision of this chapter, any contract the State has with that covered person shall be voidable on behalf of the State."
SECTION 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 3. This Act shall take effect on July 1, 2112.
Report Title:
Children; Contractors; Ethics; Rules; Penalties
Description:
Establishes rules of ethics applicable to persons who are contracted, subcontracted, assigned, delegated, ordered, appointed, or in any other act allowed by a state agency to work with children and establish additional procedures for persons, including fees, candor and fairness before a tribunal, standards of proof, and a process for filing complaints. Specifies that the contracts of any person who violates the rules of ethics are voidable on behalf of the State. Effective 7/1/2112. (HD2)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
