[§311D-1] Enactment of compact.
The interstate compact on educational opportunity for military children is
hereby enacted into law and entered into by the State of Hawaii as a party, and
is in full force and effect between the State and any other state joining
therein in accordance with the terms of the compact, which compact is
substantially as follows:
ARTICLE I
PURPOSE
The purpose of this compact is to remove
barriers to educational success imposed on children of military families
because of frequent moves and deployment of their parents by:
(1) Facilitating the timely enrollment of children of
military families and ensuring that they are not placed at a disadvantage due
to difficulty in the transfer of education records from the previous school district
or variations in entrance and age requirements;
(2) Facilitating the student placement process
through which children of military families are not disadvantaged by variations
in attendance requirements, scheduling, sequencing, grading, course content, or
assessment;
(3) Facilitating the qualification and eligibility
for enrollment, educational programs, and participation in extracurricular
academic, athletic, and social activities;
(4) Facilitating the on-time graduation of children
of military families;
(5) Providing for the adoption and enforcement of
administrative rules implementing the provisions of this compact;
(6) Providing for the uniform collection and sharing
of information between and among member states, schools, and military families
under this compact;
(7) Promoting coordination between this compact and
other compacts affecting military children; and
(8) Promoting flexibility and cooperation between the
educational system, parents, and the student to achieve educational success for
the student.
ARTICLE II
DEFINITIONS
As used in this compact, unless the context
clearly requires a different construction:
"Active duty" means full-time duty
status in the active uniformed service of the United States, including members
of the national guard and reserve on active duty orders pursuant to 10 United
States Code section 101(d)(1) and section 101(d)(6)(A).
"Appropriate education agency" means
a public authority legally constituted by a state as an administrative agency
to provide control of and direction for kindergarten through twelfth grade
public educational institutions.
"Children of military families" means
school-aged children, enrolled in kindergarten through twelfth grade, in the
households of active duty members.
"Compact" means the interstate
compact on educational opportunity for military children.
"Compact commissioner" means the
voting representative of each compacting state appointed pursuant to article
VIII of this compact.
"Deployment" means the period of
three months prior to the service members' departure from their home station on
military orders through six months after return to their home station.
"Education records" means those
official records, files, and data directly related to a student and maintained
by the school or appropriate education agency, including records encompassing
all the material kept in the student's cumulative folder such as general
identifying data, records of attendance and of academic work completed, records
of achievement and results of evaluative tests, health data, disciplinary
status, test protocols, and individualized education programs.
"Extracurricular activities" means a
voluntary activity sponsored by the school or appropriate education agency or
an organization sanctioned by the appropriate education agency.
Extracurricular activities include preparation for and involvement in public
performances, contests, athletic competitions, demonstrations, displays, and
club activities.
"Interstate commission on educational
opportunity for military children" or "interstate commission"
means the commission that is created under article IX of this compact.
"Local education agency" means a
public authority legally constituted by a state as an administrative agency to
provide control of and direction for kindergarten through twelfth grade public
educational institutions.
"Member state" means a state that has
enacted this compact.
"Military installation" means a base,
camp, post, station, yard, center, homeport facility for any ship, or other facility
under the jurisdiction of the United States Department of Defense, including
any leased facility, which is located within any of the several states, the
District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin
Islands, Guam, American Samoa, the Northern Marianas Islands, and any other
United States territory. The term shall not include any facility used
primarily for civil works, rivers and harbors projects, or flood control
projects.
"Non-member state" means a state that
has not enacted this compact.
"Receiving state" means the state to
which a child of a military family is sent, brought, or caused to be sent or
brought.
"Rule" means a written statement by
the interstate commission promulgated pursuant to article XII of this compact
that is of general applicability, implements, interprets, or prescribes a
policy or provision of the compact, or an organizational, procedural, or
practice requirement of the interstate commission, has the force and effect of
statutory law in a member state, and includes the amendment, repeal, or
suspension of an existing rule.
"Sending state" means the state from
which a child of a military family is sent, brought, or caused to be sent or
brought.
"State" means a state of the United
States, the District of Columbia, the Commonwealth of Puerto Rico, the United
States Virgin Islands, Guam, American Samoa, the Northern Marianas Islands, and
any other United States territory.
"Student" means the child of a
military family for whom the local education agency receives public funding and
who is formally enrolled in kindergarten through twelfth grade.
"Student financial obligation" means
any unpaid or outstanding fines or fees.
"Transition" means the formal and
physical process of transferring from school to school, or the period of time
in which a student moves from one school in the sending state to another school
in the receiving state.
"Uniformed service" means the Army,
Navy, Air Force, Marine Corps, Coast Guard as well as the Commissioned Corps of
the National Oceanic and Atmospheric Administration, and Public Health
Services.
"Veteran" means a person who served
in the uniformed services and who was discharged or released therefrom under
honorable conditions.
ARTICLE
III
APPLICABILITY
(a) Except as otherwise provided in subsection
(b), this compact shall apply to the children of:
(1) Active duty members of the uniformed services as
defined in this compact, including
members of the national guard and military reserves on active duty orders pursuant
to 10 United States Code section 101(d)(1) and section 101(d)(6)(A);
(2) Members or veterans of the uniformed services who
are severely injured and medically
discharged or retired, for a period of one year after medical discharge or
retirement; and
(3) Members of the uniformed services who die while
on active duty or as a result of injuries sustained while on active duty, for a
period of one year after death.
(b) This interstate compact shall only apply
to appropriate education agencies as
defined in this compact.
(c) The provisions
of this compact shall not apply to the children of:
(1) Inactive members of the national guard and
military reserves;
(2) Members of the uniformed services now retired,
except as provided in subsection (a);
(3) Veterans of the uniformed services, except as
provided in subsection (a); and
(4) Other United States Department of Defense
personnel and other federal agency civilian and contract employees not defined
as active duty members of the uniformed services.
ARTICLE IV
EDUCATIONAL
RECORDS AND ENROLLMENT
(a) Unofficial or "hand-carried"
education records. If official education records cannot be released to the
parents for the purpose of transfer, the custodian of the records in the
sending state shall prepare and furnish to the parent a complete set of
unofficial education records containing uniform information as determined by
the interstate commission. Upon receipt of the unofficial education records by
a school in the receiving state, the school shall enroll and appropriately
place the student based on the information provided in the unofficial records
pending validation by the official records, as quickly as possible.
(b) Official education records and
transcripts. Simultaneous with the enrollment and conditional placement of the
student, the school in the receiving state shall request the student's official
education record from the school in the sending state. Upon receipt of this
request, the school in the sending state shall process and furnish the official
education records to the school in the receiving state within ten business days
or within such time as is reasonably determined under the rules promulgated by
the interstate commission.
(c) Immunizations. Compacting states shall
give thirty days from the date of enrollment or within such time as is
reasonably determined under the rules promulgated by the interstate commission,
for students to obtain any immunizations required by the receiving state. For
a series of immunizations, initial vaccinations shall be obtained within thirty
days or within such time as is reasonably determined under the rules
promulgated by the interstate commission. This section shall not prohibit
state department of health requirements concerning tuberculosis examinations.
(d) Kindergarten and first grade entrance
age. Students shall continue their enrollment at a grade level in the
receiving state commensurate with their grade level (including kindergarten)
from an appropriate education agency in the sending state at the time of
transition, regardless of age. A student that has satisfactorily completed the
prerequisite grade level in the appropriate education agency in the sending
state shall be eligible for enrollment in the next higher grade level in the
receiving state, regardless of age. A student transferring after the start of
the school year in the receiving state shall enter the school in the receiving
state on the student's validated level from an accredited school in the sending
state.
ARTICLE V
PLACEMENT AND
ATTENDANCE
(a) Course placement. If the student
transfers before or during the school year, the receiving state school shall
initially honor placement of the student in educational courses based on the
student's enrollment in the sending state school or educational assessments
conducted at the school in the sending state if the courses are offered or
both; provided that these programs exist in the receiving state school. Course
placement includes but is not limited to honors, international baccalaureate,
advanced placement, vocational, technical, and career pathways courses.
Continuing the student's academic program from the previous school and
promoting placement in academically and career challenging courses should be
paramount when considering placement. This subsection shall not preclude the
school in the receiving state from performing subsequent evaluations to ensure
appropriate placement and continued enrollment of the student in the course.
The receiving state school may allow the student to attend similar educational
courses within the school district if the receiving state school does not offer
such educational courses.
(b) Educational program placement. The
receiving state school shall initially honor placement of the student in educational
programs based on current educational assessments conducted at the school in
the sending state or participation and placement in like programs in the
sending state; provided that these programs exist in the receiving state
school. The programs include but are not limited to gifted and talented
programs and English as a second language programs. This subsection shall not
preclude the school in the receiving state from performing subsequent
evaluations to ensure appropriate placement of the student. The receiving
state school may allow the student to attend similar educational courses within
the school district if the receiving state school does not offer such
educational programs.
(c) Special education services:
(1) In compliance with the federal requirements of
the Individuals with Disabilities Education Act (IDEA), 20 United States Code section 1400 et seq., the receiving state
shall initially provide comparable services to a student with disabilities
based on the student's current individualized education program; and
(2) In compliance with the requirements of section
504 of the Rehabilitation Act, 29 United States Code Annotated section
794, and with Title II of the Americans with Disabilities Act, 42 United States Code Annotated sections 12131‑12165, the
receiving state shall make reasonable accommodations and modifications to
address the needs of incoming students with disabilities, subject to an
existing section 504 or Title II Plan, to provide the student with equal access
to education. This paragraph shall not preclude the school in the receiving
state from performing subsequent evaluations to ensure appropriate placement of
the student.
(d) Placement flexibility. Appropriate
education agency administrative officials shall have flexibility in waiving a
course or program prerequisite, or other precondition for placement in courses
or programs offered under the jurisdiction of the appropriate education agency.
(e) Absence as related to deployment
activities. A student whose parent or legal guardian is an active duty member
of the uniformed services, as defined by the compact, and has been called to
duty for, is on leave from, or immediately returned from deployment to a combat
zone or combat support posting, shall be granted additional excused absences at
the discretion of the appropriate education agency superintendent to visit with
the student's parent or legal guardian relative to such leave or deployment of
the parent or guardian.
ARTICLE VI
ELIGIBILITY
(a) Eligibility for enrollment:
(1) Special power of attorney, relating to the
guardianship of a child of a military family and executed under applicable law,
shall be sufficient for the purposes of enrollment and all other actions
requiring parental participation and consent;
(2) The appropriate education agency shall be
prohibited from charging local tuition to a transitioning military child placed
in the care of a non-custodial parent or other person standing in loco parentis
who lives in a jurisdiction other than that of the custodial parent; and
(3) A transitioning military child, placed in the
care of a non-custodial parent or other person standing in loco parentis who
lives in a jurisdiction other than that of the custodial parent, may continue
to attend the school in which the child was permanently enrolled while residing
with the custodial parent. Upon the return of the custodial parent, the child
shall be allowed to finish the school year in the school currently enrolled,
but shall enroll in the school within the jurisdiction of the custodial parent
during the following school year.
(b) Eligibility for extracurricular
participation. State education agencies and appropriate education agencies
shall facilitate the opportunity for transitioning military children's
inclusion in extracurricular activities, regardless of application deadlines,
to the extent the children are otherwise qualified and space is available in
the receiving state school as determined by the principal.
ARTICLE
VII
GRADUATION
To facilitate the on-time graduation of
children of military families, state and appropriate education agencies shall
incorporate the following procedures:
(1) Waiver requirements. Appropriate education
agency administrative officials shall waive specific courses required for
graduation if similar coursework has been satisfactorily completed in another
appropriate education agency or shall provide reasonable justification for
denial. If a waiver is not granted to a student who would qualify to graduate
from the sending school, the appropriate education agency shall provide an
alternative means of acquiring required coursework so that graduation may occur
on time. This section shall not obligate the school or appropriate education
agency to pay for an online course if funding is unavailable;
(2) Exit exams. For students entering high school in
the eleventh or twelfth grade, states shall accept:
(A) Exit or end-of-course exams required for
graduation from the sending state;
(B) National norm-referenced achievement
tests; or
(C) Alternative testing, in lieu of testing
requirements for graduation in the receiving state.
If subparagraphs (A), (B), and (C) cannot be
accommodated by the receiving state for a student transferring in the student's
senior year, then paragraph (3) shall apply; and
(3) Transfers during senior year. If a military
student transferring at the beginning or during the senior year is ineligible
to graduate from the receiving appropriate education agency after all
alternatives have been considered, the sending and receiving appropriate
education agencies shall ensure the receipt of a diploma from the sending
appropriate education agency, if the student meets the graduation requirements
of the sending appropriate education agency. If one of the states in question
is not a member of this compact, the member state shall use best efforts to
facilitate the on-time graduation of the student in accordance with paragraphs
(1) and (2) of this article. This paragraph permits but shall not require a
sending state to deny a diploma to a student transferring to a receiving state
with an exit exam requirement if the student does not meet the graduation requirements
of the appropriate education agency of the sending state.
ARTICLE
VIII
STATE
COORDINATION
(a) Each member state, through the creation of
a state council or use of an existing body or board, shall provide for the
coordination among its agencies of government, appropriate education agencies,
and military installations concerning the state's participation in, and
compliance with, this compact and interstate commission activities. While each
member state may determine the membership of its state council, its membership
shall include at least the state superintendent of education, superintendent of
a school district with a high concentration of military children,
representative from a military installation, one representative each from the
legislative and executive branches of government, and other offices and
stakeholder groups the state council deems appropriate. A member state that
does not have a school district deemed to contain a high concentration of
military children may appoint a superintendent from another school district to
represent appropriate education agencies on the state council.
(b) The state council of each member state
shall appoint or designate a military family education liaison to assist
military families and the state in facilitating the implementation of this
compact.
(c) The compact commissioner responsible for
the administration and management of the state's participation in the compact
shall be recommended by the superintendent of education with the approval of
the board of education.
(d) The compact commissioner and the military
family education liaison designated herein shall be ex-officio members of the
state council, unless either is already a full voting member of the state
council.
ARTICLE IX
INTERSTATE
COMMISSION ON EDUCATIONAL OPPORTUNITY
FOR
MILITARY CHILDREN
(a) The member states hereby create the
"interstate commission on educational opportunity for military
children". The activities of the interstate commission are the formation
of public policy and are a discretionary state function. The interstate
commission shall:
(1) Be a body corporate and joint agency of the
member states and shall have all the responsibilities, powers, and duties set
forth herein, and such additional powers as may be conferred upon it by a
subsequent concurrent action of the respective legislatures of the member
states in accordance with the terms of this compact;
(2) Consist of one interstate commission voting
representative from each member state who shall be that state's compact
commissioner:
(A) Each member state represented at a meeting
of the interstate commission is entitled to one vote;
(B) A majority of the total member states
shall constitute a quorum for the transaction of business, unless a larger
quorum is required by the bylaws of the interstate commission;
(C) A representative shall not delegate a vote
to another member state. In the event the compact commissioner is unable to
attend a meeting of the interstate commission, the governor or state council
may delegate voting authority to another person from their state for a
specified meeting; and
(D) The bylaws may provide for meetings of the
interstate commission to be conducted by telecommunication or electronic
communication;
(3) Include ex-officio, non-voting representatives
who are members of interested organizations. The ex‑officio members, as
defined in the bylaws, may include members of the representative organizations
of military family advocates, appropriate education agency officials, parent
and teacher groups, the United States Department of Defense, the Education
Commission of the States, the Interstate Agreement on the Qualification of
Educational Personnel, and other interstate compacts affecting the education of
children of military members;
(4) Meet at least once each calendar year. The
chairperson may call additional meetings and, upon the request of a simple
majority of the member states, shall call additional meetings;
(5) Establish an executive committee, whose members
shall include the officers of the interstate commission and such other members
of the interstate commission as determined by the bylaws. Members of the
executive committee shall serve a one-year term. Members of the executive
committee shall be entitled to one vote each. The executive committee shall
have the power to act on behalf of the interstate commission, with the
exception of rulemaking, during periods when the interstate commission is not
in session. The executive committee shall oversee the day-to-day activities of
the administration of the compact, including enforcement and compliance with
the provisions of the compact, its bylaws and
rules, and other such duties as deemed necessary. The United States Department
of Defense shall serve as an ex-officio, nonvoting member of the executive
committee; and
(6) Establish bylaws and rules that provide for conditions and
procedures under which the interstate commission shall make its information and
official records available to the public for inspection or copying. The
interstate commission may exempt from disclosure information or official
records to the extent they would adversely affect personal privacy rights or
proprietary interests.
(b) Public notice shall be given by the
interstate commission of all meetings and all meetings shall be open to the
public, except as set forth in the rules or as otherwise provided in the
compact. The interstate commission and its committees may close a meeting, or
portion thereof, where it determines by two-thirds vote that an open meeting
would be likely to:
(1) Relate solely to the interstate commission's
internal personnel practices and procedures;
(2) Disclose matters specifically exempted from
disclosure by federal and state statute;
(3) Disclose trade secrets or commercial or financial
information which is privileged or confidential;
(4) Involve accusing a person of a crime, or formally
censuring a person;
(5) Disclose information of a personal nature where
disclosure would constitute a clearly unwarranted invasion of personal privacy;
(6) Disclose investigative records compiled for law
enforcement purposes; or
(7) Specifically relate to the interstate
commission's participation in a civil action or other legal proceeding.
(c) For a meeting, or portion of a meeting, closed
pursuant to subsection (b), the interstate commission's legal counsel or
designee shall certify that the meeting may be closed and shall reference each
relevant exempt provision. The interstate commission shall keep minutes which
shall fully and clearly describe all matters discussed in a meeting and shall
provide a full and accurate summary of actions taken, and the reasons therefor,
including a description of the views expressed and the record of roll call
votes. All documents considered in connection with an action shall be
identified in the minutes. All minutes and documents of a closed meeting shall
remain under seal, subject to release by a majority vote of the interstate
commission.
(d) The interstate commission shall collect
standardized data concerning the educational transition of the children of
military families under this compact as directed through its rules which shall
specify the data to be collected, the means of collection, and data exchange
and reporting requirements. The methods of data collection, exchange, and
reporting, as is reasonably possible, shall conform to current technology and
coordinate its information functions with the appropriate custodian of records
as identified in the bylaws and rules.
(e) The interstate commission shall create a
process that permits military officials, education officials, and parents to
inform the interstate commission if and when there are alleged violations of
the compact or its rules or when issues subject to the jurisdiction of the compact
or its rules are not addressed by the state or appropriate education agency.
This section shall not be construed to create a private right of action against
the interstate commission, any member state, or any state education agency or
appropriate education agency.
ARTICLE X
POWERS AND DUTIES OF THE INTERSTATE COMMISSION
The
interstate commission shall have the following powers:
(1) To provide for
dispute resolution among member states;
(2) To promulgate
rules and take all necessary actions to effect the goals, purposes, and
obligations as enumerated in this compact. The rules shall have the force and
effect of statutory law and shall be binding in the compact states to the
extent and in the manner provided in this compact;
(3) To issue, upon
request of a member state, advisory opinions concerning the meaning or
interpretation of the interstate compact, its bylaws, rules, and actions;
(4) To enforce compliance with the compact
provisions, the rules promulgated by the interstate commission, and the bylaws,
use all necessary and proper means, including the use of judicial process. Any action to enforce compliance
with the compact provisions by the interstate commission shall be brought
against a member state only;
(5) To establish
and maintain offices which shall be located within one or more of the member
states;
(6) To purchase and
maintain insurance and bonds;
(7) To borrow,
accept, hire, or contract for services of personnel;
(8) To establish
and appoint committees including an executive committee as required by article
IX, subsection (a), paragraph (5), which shall have the power to act on behalf
of the interstate commission in carrying out its powers and duties hereunder;
(9) To elect or appoint such officers, attorneys,
employees, agents, or consultants, and to fix their compensation, define their
duties, and determine their qualifications; and to establish the interstate
commission's personnel policies and programs relating to conflicts of interest,
rates of compensation, and qualifications of personnel;
(10) To accept
any and all donations and grants of money, equipment, supplies, materials, and
services, and to receive, use, and dispose of it;
(11) To lease, purchase, or accept contributions or
donations of, or otherwise to own, hold, improve, or use any property, real,
personal, or mixed;
(12) To sell, convey, mortgage, pledge, lease,
exchange, abandon, or otherwise
dispose of any property, real, personal, or mixed;
(13) To establish a budget and make expenditures;
(14) To adopt
a seal and bylaws governing the management and operation of the interstate
commission;
(15) To report annually to the legislatures,
governors, judiciary, and state councils of the member states concerning the
activities of the interstate commission during the preceding year. The reports
shall include any recommendations that may have been adopted by the interstate
commission;
(16) To coordinate
education, training, and public awareness regarding the compact and its
implementation and operation for officials and parents involved in such
activity;
(17) To establish
uniform standards for the reporting, collecting, and exchanging of data;
(18) To maintain
corporate books and records in accordance with the bylaws;
(19) To perform such
functions as may be necessary or appropriate to achieve the purposes of this
compact; and
(20) To provide for
the uniform collection and sharing of information between and among member
states, schools, and military families under this compact.
ARTICLE XI
ORGANIZATION AND OPERATION OF THE INTERSTATE
COMMISSION
(a) The interstate commission, by a majority
of the members present and voting, within twelve months after the first
interstate commission meeting, shall adopt bylaws to govern its conduct as may
be necessary or appropriate to carry out the purposes of the compact including:
(1) Establishing the fiscal year of the interstate
commission;
(2) Establishing an executive committee and such
other committees as may be necessary;
(3) Providing for the establishment of committees and
for governing any general or specific delegation of authority or function of
the interstate commission;
(4) Providing reasonable procedures for calling and
conducting meetings of the interstate commission, and ensuring reasonable
notice of each such meeting;
(5) Establishing the titles and responsibilities of
the officers and staff of the interstate commission;
(6) Providing a mechanism for concluding the
operations of the interstate commission and the return of surplus funds that
may exist upon the termination of the compact after the payment and reserving
of all of its debts and obligations; and
(7) Providing "start up" rules for the
initial administration of the compact.
(b) The interstate
commission, by a majority of the members, shall elect annually from among its
members a chairperson, a vice-chairperson, and a treasurer, each of whom shall
have such authority and duties as may be specified in the bylaws. The
chairperson or, in the chairperson's absence or disability, the
vice-chairperson, shall preside at all meetings of the interstate commission.
The officers elected shall serve without compensation or remuneration from the
interstate commission; provided that, subject to the availability of budgeted
funds, the officers shall be reimbursed for ordinary and necessary costs
incurred by them in the performance of their responsibilities as officers of
the interstate commission.
(c) The executive committee shall have such
authority and duties as may be set forth in the bylaws, including:
(1) Managing the affairs of the interstate commission
in a manner consistent with the bylaws and purposes of the interstate
commission;
(2) Overseeing an organizational structure within,
and appropriate procedures for, the interstate commission to provide for the
creation of rules, operating procedures, and administrative and technical
support functions; and
(3) Planning, implementing, and coordinating
communications and activities with other state, federal, and local government
organizations to advance the goals of the interstate commission.
(d) The executive committee, subject to the
approval of the interstate commission, may appoint or retain an executive
director for such period, upon such terms and conditions and for such
compensation, as the interstate commission may deem appropriate. The executive
director shall serve as secretary to the interstate commission, but shall not
be a member of the interstate commission. The executive director shall hire
and supervise such other persons as may be authorized by the interstate
commission.
(e) The interstate commission's executive
director and its employees shall be immune from suit and liability, either
personally or in their official capacity, for a claim for damage to or loss of
property or personal injury or other civil liability caused or arising out of
or relating to an actual or alleged act, error, or omission that occurred, or
that such person had a reasonable basis for believing occurred, within the
scope of interstate commission employment, duties, or responsibilities;
provided that such person shall not be protected from suit or liability for
damage, loss, injury, or liability caused by the intentional or wilful and
wanton misconduct of such person:
(l) The liability of the interstate commission's executive
director and employees or interstate commission representatives, acting within
the scope of such person's employment or duties for acts, errors, or omissions
occurring within the person's state may not exceed the limits of liability set
forth under the constitution and laws of that state for state officials,
employees, and agents. The interstate commission is considered to be an
instrumentality of the states for the purposes of any such action. Nothing in
this paragraph shall be construed to protect such person from suit or liability
for damage, loss, injury, or liability caused by the intentional or wilful and
wanton misconduct of such person;
(2) The interstate commission shall defend the
executive director and its employees and, subject to the approval of the
attorney general or other appropriate legal counsel of the member state
represented by an interstate commission representative, shall defend such
interstate commission representative in any civil action seeking to impose
liability arising out of an actual or alleged act, error, or omission that
occurred within the scope of interstate commission employment, duties, or
responsibilities, or that the defendant had a reasonable basis for believing
occurred within the scope of interstate commission employment, duties, or
responsibilities; provided that the actual or alleged act, error, or omission
did not result from intentional or wilful and wanton misconduct on the part of
such person; and
(3) To the extent not covered by the state involved,
a member state, the interstate commission, or the representatives or employees
of the interstate commission shall be held harmless in the amount of a
settlement or judgment, including attorney's fees and costs, obtained against
such persons arising out of an actual or alleged act, error, or omission that
occurred within the scope of interstate commission employment, duties, or
responsibilities, or that such persons had a reasonable basis for believing
occurred within the scope of interstate commission employment, duties, or
responsibilities; provided that the actual or alleged act, error, or omission
did not result from intentional or wilful and wanton misconduct on the part of
such persons.
(f) The compact commissioner and any person
representing the state in the interstate commission, in their individual or
official capacity, and the member state, shall be immune from suit and
liability caused by or arising out of actions, errors, or omissions of the
interstate commission.
ARTICLE
XII
RULEMAKING
FUNCTIONS OF THE INTERSTATE COMMISSION
(a) The interstate commission shall promulgate
reasonable rules to effectively and efficiently achieve the purposes of this
compact. Notwithstanding the foregoing, in the event the interstate commission
exercises its rulemaking authority in a manner that is beyond the scope of the
purposes of this compact, then the action by the interstate commission shall be
invalid and have no force or effect.
(b) Rules shall be made pursuant to a
rulemaking process that substantially conforms to the Model State
Administrative Procedure Act of 1981, as may be appropriate to the operations
of the interstate commission.
(c) Not later than thirty days after a rule is
promulgated, any person may file a petition for judicial review of the rule;
provided that the filing of such a petition shall not stay or otherwise prevent
the rule from becoming effective unless the court finds that the petitioner has
a substantial likelihood of success. The court shall give deference to the
actions of the interstate commission consistent with applicable law and shall
not find the rule to be unlawful if the rule represents a reasonable exercise
of the interstate commission's authority.
(d) If a majority of the legislatures of the
compacting states rejects a rule by enactment of a statute or resolution in the
same manner used to adopt this compact, then such rule shall have no further
force and effect in any compacting state.
ARTICLE
XIII
OVERSIGHT,
ENFORCEMENT, AND DISPUTE RESOLUTION
(a) Oversight:
(1) The executive, legislative, and judicial branches
of state government in each member state shall enforce this compact and shall
take all actions necessary and appropriate to effectuate the compact's purposes
and intent. The provisions of this compact and the rules adopted hereunder
shall have the force and effect of law;
(2) All courts shall take judicial notice of the
compact and the rules in any judicial or administrative proceeding in a member
state pertaining to the subject matter of this compact which may affect the
powers, responsibilities, or actions of the interstate commission; and
(3) The interstate commission shall be entitled to
receive all service of process in any such proceeding and shall have standing
to intervene in the proceeding for all purposes. Failure to provide service of
process to the interstate commission shall render a judgment or order void as
to the interstate commission, this compact, or promulgated rules.
(b) Default, technical assistance, suspension,
and termination. If the interstate commission determines that a member state
has defaulted in the performance of its obligations or responsibilities under
this compact, or the bylaws or promulgated rules, the interstate commission
shall:
(1) Provide written notice to the defaulting state
and other member states, of the nature of the default, the means of curing the
default, and any action taken by the interstate commission. The interstate
commission shall specify the conditions by which the defaulting state must cure
its default; and
(2) Provide remedial training and specific technical
assistance regarding the default.
(c) If the defaulting state fails to cure the
default, the defaulting state shall be terminated from the compact upon an
affirmative vote of a majority of the member states and all rights, privileges,
and benefits conferred by this compact shall be terminated from the effective
date of termination. A cure of the default shall not relieve the offending
state of obligations or liabilities incurred during the period of the default.
(d) Suspension or termination of membership in
the compact shall be imposed only after all other means of securing compliance
have been exhausted. Notice of intent to suspend or terminate shall be given
by the interstate commission to the governor, the majority and minority leaders
of the defaulting state's legislature, and each of the member states.
(e) The state which has been suspended or
terminated is responsible for all assessments, obligations, and liabilities
incurred through the effective date of suspension or termination including
obligations, the performance of which extends beyond the effective date of
suspension or termination.
(f) The interstate commission shall not bear
any costs relating to any state that has been found to be in default or which
has been suspended or terminated from the compact, unless otherwise mutually
agreed upon in writing between the interstate commission and the defaulting
state.
(g) The defaulting state may appeal the action
of the interstate commission by petitioning the United States District Court
for the District of Columbia or the federal district where the interstate
commission has its [principal] offices. The prevailing party shall be awarded
all costs of such litigation including reasonable attorney's fees.
(h) Dispute resolution:
(1) The interstate commission shall attempt, upon the
request of a member state, to resolve disputes which are subject to the compact
and which may arise among member states and between member and non-member
states; and
(2) The interstate commission shall promulgate rules
providing for both mediation and binding dispute resolution for disputes as
appropriate.
(i) Enforcement:
(1) The interstate commission, in the reasonable
exercise of its discretion, shall enforce the provisions and rules of this
compact;
(2) The interstate commission may, by majority vote
of the members, initiate legal action in the United States District Court for
the District of Columbia or, at the discretion of the interstate commission, in
the federal district where the interstate commission has its [principal] offices,
to enforce compliance with the provisions of
this compact, its promulgated rules and bylaws, against a member state in
default. The relief sought may include both injunctive relief and damages. In
the event judicial enforcement is necessary, the prevailing party shall be
awarded all costs of such litigation, including reasonable attorney's fees;
and
(3) The remedies herein shall not be the exclusive
remedies of the interstate commission. The interstate commission may avail
itself of any other remedies available under state law or the regulation of a
profession.
ARTICLE XIV
FINANCING OF THE INTERSTATE COMMISSION
(a) The interstate commission shall pay, or
provide for the payment of, the reasonable expenses of its establishment,
organization, and ongoing activities.
(b) The interstate commission may levy on and
collect an annual assessment from each member state to cover the cost of the
operations and activities of the interstate commission and its staff, which
shall be in a total amount sufficient to cover the interstate commission's
annual budget as approved each year. The aggregate annual assessment amount
shall be allocated based upon a formula to be determined by the interstate
commission, which shall promulgate rules binding upon all member states.
(c) The interstate commission shall not incur
obligations of any kind prior to securing the funds adequate to meet the same;
nor shall the interstate commission pledge the credit of any of the member
states, except by and with the authority of the member state.
(d) The interstate commission shall keep
accurate accounts of all receipts and disbursements. The receipts and
disbursements of the interstate commission shall be subject to the audit and
accounting procedures established under its bylaws. All receipts and
disbursements of funds handled by the interstate commission shall be audited
yearly by a certified or licensed public accountant and the report of the audit
shall be included in and become part of the annual report of the interstate
commission.
ARTICLE XV
MEMBER
STATES, EFFECTIVE DATE, AND AMENDMENT
(a) Any state is eligible to become a member
state.
(b) The compact shall become effective and
binding upon legislative enactment of the compact into law by no less than ten
of the states. The effective date shall be no earlier than December 1, 2007. Thereafter, it shall become effective and binding
as to any other member state upon enactment of the compact into law by that
state. The governors of non-member states or their designees shall be invited
to participate in the activities of the interstate commission on a non‑voting
basis prior to adoption of the compact by all states.
(c) The interstate commission may propose
amendments to the compact for enactment by the member states. No amendment
shall become effective and binding upon the interstate commission and the
member states unless and until it is enacted into law by unanimous consent of the
member states.
ARTICLE XVI
WITHDRAWAL AND DISSOLUTION
(a) Withdrawal:
(1) Once effective, the compact shall continue in
force and remain binding upon each and every member state; provided that a
member state may withdraw from the compact by specifically repealing the
statute which enacted the compact into law;
(2) Withdrawal from this compact shall be by the
enactment of a statute repealing the same, but shall not take effect until one
year after the effective date of such statute and until written notice of the
withdrawal has been given by the withdrawing state to the governor of each
other member state;
(3) The withdrawing state shall immediately notify
the chairperson of the interstate commission in writing upon the introduction
of legislation repealing this compact in the withdrawing state. The interstate
commission shall notify the other member states of the withdrawing state's
intent to withdraw within sixty days of its receipt thereof;
(4) The withdrawing state is responsible for all
assessments, obligations, and liabilities incurred through the effective date
of withdrawal, including obligations, the performance of which extend beyond
the effective date of withdrawal; and
(5) Reinstatement following withdrawal of a member
state shall occur upon the withdrawing state reenacting the compact or upon
such later date as determined by the interstate commission.
(b) Dissolution
of compact:
(1) This compact shall dissolve effective upon the
date of the withdrawal or default of the member state which reduces the
membership in the compact to one member state; and
(2) Upon the dissolution of this compact, the compact
becomes void and shall be of no further force or effect, and the business and
affairs of the interstate commission shall be concluded and surplus funds shall
be distributed in accordance with the bylaws.
ARTICLE XVII
SEVERABILITY
AND CONSTRUCTION
(a) The provisions
of this compact shall be severable, and if any phrase, clause, sentence, or provision is deemed unenforceable,
the remaining provisions of the compact shall be enforceable.
(b) The provisions of this compact shall be
liberally construed to effectuate its purposes.
(c) Nothing
in this compact shall be construed to prohibit the applicability of other
interstate compacts to which the states are members.
ARTICLE
XVIII
BINDING
EFFECT OF COMPACT AND OTHER LAWS
(a) Other laws:
(1) Nothing herein prevents the enforcement of any
other law of a member state that is not inconsistent with this compact; and
(2) All member states' laws conflicting with this
compact shall be superseded to the extent of the conflict.
(b) Binding effect of the compact:
(1) All lawful actions of the interstate commission,
including all rules and bylaws promulgated by the interstate commission, shall
be binding upon the member states;
(2) All agreements between the interstate commission
and the member states shall be binding in accordance with their terms; and
(3) If any provision of this compact exceeds the
constitutional limits imposed on the legislature of any member state, such
provision shall be ineffective to the extent of the conflict with the
constitutional provision in question in that member state. [L 2009, c 152, pt
of §1; am L 2011, c 82, pt of §1]
