GOVERNMENT COMPETITION AND

PRIVATIZATION ACT

2008 GENERAL SESSION

STATE OF UTAH

LONG TITLE

General Description:

This bill repeals the existing Privatization Policy Board and enacts the Government Competition and Privatization Act, including creating the State Government Competition and Privatization Commission and the requirement that local governments create a local government competition and privatization commission.

Highlighted Provisions:

This bill:

► repeals provisions related to the Privatization Policy Board;

► defines terms;

► creates the State Government Competition and Privatization Commission;

► requires the creation of one or more local government competition and privatization commissions;

► establishes the duties of the state and local commissions, including granting rulemaking authority to the state commission;

► imposes requirements for when a government entity may compete with a private enterprise;

► addresses issues specific to an institution of higher education;

► addresses privatization; and

► provides for enforcement including:

∙ exempting administrative actions from the Administrative Procedures Act;

∙ providing a complaint process;

∙ providing for injunctions; and

∙ providing for enforcement.

Monies Appropriated in this Bill:

None

Other Special Clauses:

This bill takes effect on July 1, 2008.

Utah Code Sections Affected:

ENACTS:

63-55d-101, Utah Code Annotated 1953

63-55d-102, Utah Code Annotated 1953

63-55d-201, Utah Code Annotated 1953

63-55d-202, Utah Code Annotated 1953

63-55d-203, Utah Code Annotated 1953

63-55d-301, Utah Code Annotated 1953

63-55d-302, Utah Code Annotated 1953

63-55d-303, Utah Code Annotated 1953

63-55d-401, Utah Code Annotated 1953

63-55d-402, Utah Code Annotated 1953

63-55d-403, Utah Code Annotated 1953

63-55d-501, Utah Code Annotated 1953

63-55d-502, Utah Code Annotated 1953

63-55d-601, Utah Code Annotated 1953

63-55d-602, Utah Code Annotated 1953

63-55d-603, Utah Code Annotated 1953

63-55d-604, Utah Code Annotated 1953

63-55d-605, Utah Code Annotated 1953

REPEALS:

63-55a-1, as last amended by Laws of Utah 2003, Chapter 193

63-55a-2, as last amended by Laws of Utah 2003, Chapter 193

63-55a-3, as last amended by Laws of Utah 2003, Chapter 193

Be it enacted by the Legislature of the state of Utah:

Section 1. Section 63-55d-101 is enacted to read:

CHAPTER 55d. GOVERNMENT COMPETITION AND PRIVATIZATION ACT

Part 1. General Provisions

63-55d-101. Title.

This chapter is known as the "Government Competition and Privatization Act."

Section 2. Section 63-55d-102 is enacted to read:

63-55d-102. Definitions.

As used in this chapter:

(1) (a) "Activity" means to:

(i) perform a service; or

(ii) provide a good.

(b) "Activity" includes to:

(i) manufacture a good or service;

(ii) process a good or service;

(iii) sell a good or service;

(iv) offer for sale a good or service;

(v) rent a good or service;

(vi) lease a good or service;

(vii) deliver a good or service;

(viii) distribute a good or service: or

(ix) advertise a good or service.

(2) "By-product of a commercial activity" is as defined by the commission by rule made in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.

(3) "Commercial activity" means to engage in an activity that can be obtained in whole or in part from a private enterprise.

(4) "Commission accounting method" means one or more accounting rules made by the commission in accordance with:

(a) Title 63, Chapter 46a, Utah Administrative Rulemaking Act; and

(b) Section 63-55d-203.

(5) "Competitive impact statement" means a statement that complies with Section 63-55d-402.

(6) "Department" means the Department of Administrative Services.

(7) "Faculty member" means a person treated as a faculty member by an institution of higher education for a purposes other than this chapter.

(8) "Government entity" means:

(a) a state entity; or

(b) a local entity.

(9) "Invited guest" means a person who enters onto a campus of an institution of higher education:

(a) for an act that is:

(i) educational;

(ii) related to research; or

(iii) (A) normally associated with an institution of higher education; and

(B) for a purpose or has a result that does not result in the institution of higher education competing with a private enterprise; and

(b) not primarily to purchase a good or service not related to an act described in Subsection (9)(a).

(10) "Local commission" means a local government competition and privatization commission created in accordance with Section 63-55d-301.

(11) "Local entity" means:

(a) a political subdivision of the state, including a:

(i) county;

(ii) city;

(iii) town;

(iv) local school district;

(v) local district; or

(vi) special service district;

(b) an agency of an entity described in this Subsection (11), including a department, office, division, authority, commission, or board; and

(c) an entity created by an interlocal cooperative agreement under Title 11, Chapter 13, Interlocal Cooperation Act, between two or more entities described in this Subsection (11).

(12) "Ordinary business channel" is as defined by the state commission by rule made in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.

(13) "Private enterprise" means a person that for profit:

(a) manufactures a good or service;

(b) processes a good or service;

(d) offers for sale a good or service;

(e) rents a good or service;

(f) leases a good or service;

(g) delivers a good or service;

(h) distributes a good or service: or

(i) advertises a good or service.

(14) "Privatize" means that an activity engaged in by a government entity is transferred so that a private enterprise engages in the activity including a transfer by:

(a) contract;

(b) transfer of property; or

(15) "Staff member" means an individual who an institution of higher education treats as staff to the institution of higher education for a purpose other than this chapter.

(16) "State commission" means the State Government Competition and Privatization Commission created in Section 63-55d-201.

(17) (a) Except as provided in Subsection (17)(b), "state entity" means:

(i) the state;

(ii) an institution of higher education, as defined in Section 53B-3-102;

(iii) an agency of an entity described in this Subsection (17), including a department, office, division, authority, commission, or board; and

(iv) an entity created by an interlocal cooperative agreement under Title 11, Chapter 13, Interlocal Cooperation Act, between two or more entities described in this Subsection (17) or a local entity.

(b) "State entity" does not include the Legislature or an entity or agency of the Legislature.

(18) "Student" means an individual who, under rules made by the Board of Regents, is:

(a) enrolled or accepted for enrollment at an institution of higher education; and

(b) is making suitable progress in the individual's education toward obtaining a degree or other appropriate certification in accordance with standards acceptable to the Board of Regents.

(19) "Total actual cost" means the costs incurred, directly or indirectly, when engaging in an activity by the person who engages in the activity.

Section 3. Section 63-55d-201 is enacted to read:

Part 2. State Government Competition and Privatization Commission

63-55d-201. State Government Competition and Privatization Commission created.

(1) (a) There is created in the department the Government Competition and Privatization Commission consisting of seven members appointed by the governor.

(b) The governor shall appoint as members of the state commission:

(i) four individuals:

(A) each of whom is an owner or officer of a private enterprise that has a location in the state;

(B) one of whom is chosen from at least two names recommended by the speaker of the House of Representatives; and

(ii) one chief administrative officer of a state entity;

(iii) one representative of employees of a state entity; and

(iv) one representative who is chosen from at least four names:

(A) at least two names being recommended from the State Board of Education; and

(B) at least two names being recommended from the Board of Regents.

(c) A person described in Subsection (1)(b) as recommending names to the governor shall submit the recommended names to the governor no later than 30 days from the day on which the person receives notice from the governor that the governor is in need of the recommendations.

(2) (a) Except as required by Subsection (2)(b), a state commission member shall serve until the sooner of:

(i) the expiration of a four-year term; or

(ii) the day on which the state commission member no longer holds the position required under Subsection (1) to be appointed by the governor.

(b) The governor shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of the state commission members are staggered so that approximately half of the state commission is appointed every two years.

(d) When a vacancy occurs in the membership for any reason, the governor shall appoint a replacement to the unexpired term in a manner consistent with Subsection (1)(b).

(3) By no later than July 31 each year the state commission shall select one of its members to serve as chair of the state commission for a one-year term.

(4) The state commission shall meet as scheduled by the chair, except that the chair shall schedule a meeting at least quarterly.

(5) (a) Five members of the state commission constitute a quorum of the state commission.

(b) An action of the state commission requires that:

(i) a quorum be present; and

(ii) a majority of the state commission members that are present vote for the action.

(6) (a) (i) A state commission member who is not a government employee may not receive compensation or benefits for the state commission member's service, but may receive per diem and expenses incurred in the performance of the state commission member's official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.

(ii) A state commission member who is not a government employee may decline to receive per diem and expenses for the state commission member's service.

(b) (i) A state government officer or employee state commission member who does not receive salary, per diem, or expenses from the state commission member's agency for the state commission member's service may receive per diem and expenses incurred in the performance of the state commission member's official duties from the state commission at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.

(ii) A state government officer or employee state commission member may decline to receive per diem and expenses for the state commission member's service.

(c) (i) A higher education state commission member who does not receive salary, per diem, or expenses from the entity that the state commission member represents for the state commission member's service may receive per diem and expenses incurred in the performance of the state commission member's official duties from the state commission at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.

(ii) A higher education state commission member may decline to receive per diem and expenses for the state commission member's service.

(7) The department shall staff the state commission.

(8) (a) The state commission may appoint one or more advisory groups that may with respect to an issue within the jurisdiction of the state commission:

(i) conduct a study, research, or analyses; and

(ii) make a report, including a recommendation, to the state commission.

(b) An advisory group shall include at least one member of the state commission.

Section 4. Section 63-55d-202 is enacted to read:

63-55d-202. State commission duties.

(1) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the state commission shall make rules to:

(a) define:

(i) "byproduct of a commercial activity"; and

(ii) "ordinary business channel";

(b) establish a commission accounting method in accordance with Section 63-55d-203;

(i) consistent with Section 63-55d-402; and

(ii) provides a process for issuing a request for proposals:

(A) to ensure that the request for proposals is distributed widely; and

(B) that is consistent with Title 63, Chapter 55, Utah Procurement Act;

(d) establish a procedure for an institution of higher education requesting an approval of the state commission under Section 63-55d-403;

(e) establish one or more standards to recommend privatization of an activity of a government entity in accordance with Part 5, Privatization Requirements; and

(f) establish a procedure for a person to file a complaint that is consistent with Part 6, Enforcement.

(2) The state commission shall comply with Part 4, Government Competition Requirements:

(a) to review or approve a commercial activity of a state entity; and

(b) to review or approve a commercial activity of an institutional of higher education, including a charge for the sale of a byproduct of a commercial activity.

(3) The state commission shall comply with Part 5, Privatization Requirements, to review privatization of an activity of a government entity;

(4) The state commission shall comply with Part 6, Enforcement, if a complaint is filed with the state commission in accordance with Section 63-55d-602.

(5) The state commission shall communicate with private or public entities that address government competition with a private enterprise or privatization.

(6) (a) The state commission shall prepare an annual report that:

(i) describes the state commission's activities, including the state commission's actions with respect to a complaint filed under Section 63-55d-602;

(ii) makes recommendations, including the need for legislation, if any, to address an activity of a government entity that the state commission finds:

(A) is in competition with a private enterprise; or

(B) should be privatized; and

(iii) reports on the activities of the one or more local commissions created under Part 3, Local Government Competition and Privatization Commissions;

(b) submit the annual report by no later than December 1 to the Legislature and the governor; and

(c) if the annual report includes a recommendation described in Subsection (6)(a)(ii) regarding a government entity, file a copy of the recommendation with:

(i) the chief administrative officer of the government entity that is the subject of the recommendation; and

(iii) the Office of Legislative Fiscal Analyst, for submission to the legislative appropriation subcommittee that has responsibility related to that government entity.

Section 5. Section 63-55d-203 is enacted to read:

63-55d-203. Commission accounting method.

The state commission by rule made in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, shall establish an accounting method that:

(1) is similar to generally accepted accounting principles used by a private enterprise;

(2) allows a government entity to identify the total actual cost of engaging in a commercial activity in a manner similar to how a private enterprise identifies the total actual cost to the private enterprise, including the following:

(a) a labor expense, such as:

(i) compensation and benefits;

(ii) a cost of training;

(iii) a cost of paying overtime;

(iv) a cost of supervising labor; or

(v) another personnel expense;

(b) an operating cost, such as:

(i) vehicle maintenance and repair;

(ii) a marketing, advertising, or other sales expense;

(iii) an office expense;

(iv) a cost of an accounting operation, such as billing;

(v) an insurance expense;

(vi) a real estate or equipment cost;

(vii) a debt service cost; or

(viii) a proportionate amount of other overhead or of a capital expense, such as vehicle depreciation and depreciation of other fixed assets;

(d) another cost particular to a person supplying the good or service;

(3) provides a process to estimate the taxes a government entity would pay related to engaging in a commercial activity if the government entity were required to pay federal, state, and local taxes to the same extent as a private enterprise engaging in the commercial activity; and

(4) allows an institution of higher education to calculate the market price of the sale of a byproduct of a commercial activity as described in Subsection 63-55d-403(4).

Section 6. Section 63-55d-301 is enacted to read:

Part 3. Local Government Competition and Privatization Commissions

63-55d-301. Creation of local government competition and privatization commission.

(1) By no later than December 31, 2008, a local entity shall:

(a) create a local government competition and privatization commission for that local entity; or

(b) enter into an agreement under Title 11, Chapter 13, Interlocal Cooperation Act, to create a local government competition and privatization commission.

(2) A local commission shall:

(a) consist of at least seven members; and

(b) have as a majority of its members, individuals who are each an owner or officer of a private enterprise that has a location in a local entity creating the local government competition and privatization commission.

(3) (a) A local commission member shall serve a four-year term.

(b) The local entity or interlocal agreement creating the local commission shall provide for the staggering of terms so that approximately half of the local commission is appointed every two years.

(d) When a vacancy occurs in the membership for any reason, the appointing authority shall appoint a replacement to the unexpired term in a manner consistent with the original appointment.

(4) By no later than July 31 each year a local commission shall select one of its members to serve as chair of the local commission for a one-year term.

(5) A local commission shall meet as scheduled by the chair of the local commission, except that the chair shall schedule a meeting at least quarterly.

(6) (a) A majority of a local commission constitutes a quorum of the local commission.

(b) An action of a local state commission requires that:

(i) a quorum be present; and

(ii) a majority of the local commission members that are present vote for the action.

(7) (a) The local commission may appoint one or more advisory groups that may with respect to an issue within the jurisdiction of the local commission:

(i) conduct a study, research, or analyses; and

(ii) make a report, including a recommendation, to the local commission.

(b) An advisory group shall include at least one member of the local commission.

Section 7. Section 63-55d-302 is enacted to read:

63-55d-302. Local commission duties.

(1) A local commission shall follow a procedure substantially similar to:

(a) Part 4, Government Competition Requirements, to review or approve a commercial activity of a local entity;

(b) Part 5, Privatization Requirements, to review privatization of an activity of a local entity;

(c) Part 6, Enforcement, if a complaint is filed with the local commission in a manner substantially similar to Section 63-55d-602.

(2) A local commission shall communicate with:

(a) the state commission concerning government competition and privatization; and

(b) other private or public entities that address government competition with a private enterprise or privatization; and

(3) (a) A local commission shall prepare an annual report that:

(i) describes the local commission's activities, including the local commission's actions with respect to a complaint filed with the local commission; and

(ii) makes recommendations to address an activity of a local entity that the local commission finds:

(A) is in competition with a private enterprise; or

(B) should be privatized; and

(b) submit the annual report by no later than December 1 to the state commission.

Section 8. Section 63-55d-303 is enacted to read:

63-55d-303. Local entity and commercial activities.

A local entity is subject to the same requirements as a state entity under Part 4, Government Competition Requirements, except that the local commission created by the local entity or by an interlocal agreement in which the local entity participates grants approval in the same manner as the state commission for a state entity.

Section 9. Section 63-55d-401 is enacted to read:

Part 4. Government Competition Requirements

63-55d-401. Government competition with private enterprise prohibited.

(1) Except as provided in Subsection (2) or (3) or, for purposes of an institution of higher education, except as provided in Section 63-55d-403, a state entity may not engage in a commercial activity:

(a) to provide a good or service for:

(i) its own use;

(ii) the use of another government entity; or

(iii) use by the public; and

(b) if a good or service with respect to the commercial activity can be obtained from a private enterprise through the use of an ordinary business channel.

(2) A state entity may engage in a commercial activity that is not described in Subsection (3) if:

(a) the commercial activity is expressly authorized by statute; or

(b) (i) the state entity requests approval of the commercial activity before the day on which the state entity engages in the commercial activity; and

(ii) the state commission finds that:

(A) a private enterprise is not able to provide a good or service with respect to the commercial activity;

(B) use of a private enterprise causes an unacceptable delay or disruption of an activity that is essential;

(D) the state entity provides the good or service with respect to that commercial activity:

(I) to a government entity on a continuing basis; and

(II) at an amount included in a competitive impact statement that is less than the cost to the government entity receiving the good or service if the good or service were obtained from a private enterprise as determined relating to the specific good or service; and

(III) the good or serve with respect to that commercial activity is of at least equal quality to the good or service that could be obtained from a private enterprise at a reasonably comparable cost to the government entity receiving the good or service.

(3) (a) If a state entity is engaging in a commercial activity on July 1, 2008, the state entity may continue to engage in the commercial activity until June 30, 2009 without complying with Subsection (2).

(b) To engage in a commercial activity on or after July 1, 2009, a state entity described in Subsection (3)(a) shall comply with Subsection (2) as if the commercial activity is a new commercial activity.

Section 10. Section 63-55d-402 is enacted to read:

63-55d-402. Competitive impact statement.

(1) (a) If a state entity seeks approval of the state commission to engage in a commercial activity under Subsection 63-55d-401(2)(b)(ii)(D), the state entity shall file with its request for approval a competitive impact statement prepared in accordance with this section.

(b) A state entity shall include in a competitive impact statement in writing:

(i) the information described in Subsections (2), (3), and (4); and

(ii) any other information the state commission requires by rule.

(2) A state entity shall calculate the sum of the following determined in accordance with the commission accounting method:

(a) the total actual cost of the commercial activity to the state entity determined no later than six months before the day on which the state entity files the competitive impact statement with the state commission; and

(b) the estimate of taxes a state entity would pay related to a commercial activity:

(i) if the state entity were required to pay federal, state, and local taxes to the same extent as a private enterprise engaging in the commercial activity; and

(ii) determined in accordance with the commission accounting method no later than six months before the day on which the state entity files the competitive impact statement with the state commission.

(3) (a) No earlier than six months before the day on which a state entity files a competitive impact statement with the state commission, the state entity shall obtain at least one bid or proposal for the commercial activity on the basis of a request for proposals for the commercial activity that is issued in accordance with:

(i) Title 63, Chapter 55, Utah Procurement Act; and

(ii) rules of the state commission.

(b) A state entity shall determine a cost figure for a private enterprise engaging in a commercial activity:

(i) by using the one or more bids or proposals described in Subsection (3)(a); and

(ii) that includes a cost to the state entity to administer a bid or proposal.

(4) A state entity shall compare the amounts calculated under Subsection (2) with the cost figure calculated under Subsection (3).

Section 11. Section 63-55d-403 is enacted to read:

63-55d-403. Institution of higher education.

(1) An institution of higher education is considered to engage in a commercial activity as described in Subsection 63-55d-401(1) if it engages in the commercial activity for its own use if it engages in the commercial activity for:

(a) a student;

(b) a faculty member of the institution of higher education;

(d) an invited guest of the institution of higher education.

(2) (a) In addition to when an institution of higher education is allowed to engage in a commercial activity under Section 63-55d-401, an institution of higher education may engage in a commercial activity if:

(i) the institution of higher education requests approval from the state commission of the commercial activity before the day on which the institution of higher education engages in the commercial activity; and

(ii) the state commission finds that the commercial activity:

(A) is necessary because a student needs to participate in the commercial activity to obtain a degree or other appropriate certification in accordance with standards acceptable to the Board of Regents;

(B) is a recognized and integral part of a teaching, educational, or research program that leads to a degree or other appropriate certification in accordance with standards acceptable to the Board of Regents; or

(I) food service;

(II) student housing;

(III) sponsorship of a cultural or athletic event;

(IV) providing a facility for recreation to a student, faculty member, or staff member;

(V) selling a course book or course-related supplies; or

(VI) selling one or more personal items bearing the institution of higher education's insignia:

(Aa) in a limited and reasonable quantity; and

(Bb) if the sale is incidental to the sale of a course book or another item permitted in Subsection (2)(a)(b)(ii)(C)(V).

(b) An institution of higher education may not engage in a commercial activity through another government entity unless the institution of higher education can directly engage in the commercial activity under this Subsection (2).

(i) the institution of higher education can engage in the commercial activity under this Subsection (2); and

(ii) the other government entity can engage in the commercial activity under Section 63-55d-401.

(d) (i) If an institution of higher education is engaging in a commercial activity on July 1, 2008, the institution of higher education may continue to engage in the commercial activity until June 30, 2009 without complying with this Subsection (2).

(ii) To engage in a commercial activity on or after July 1, 2009, an institution of higher education described in Subsection (2)(d)(i) shall comply with this Subsection (2) as if the commercial activity is a new commercial activity.

(3) An institution of higher education may not enter a competitive bidding for an activity unless:

(a) the institution of higher education requests approval from the state commission to enter into competitive bidding for the activity before the day on which the institution of higher education enters the competitive bid; and

(b) the state commission finds that the activity:

(i) is to be performed by one or more students; and

(ii) is a recognized and integral part of a teaching, educational, or research program that leads to a degree or other appropriate certification in accordance with standards acceptable to the Board of Regents.

(4) An institution of higher education may not dispose by sale of a by-product of a commercial activity notwithstanding whether the commercial activity is a recognized and integral part of teaching, educational, or research program that leads to a degree or other appropriate certification in accordance with standards acceptable to the Board of Regents unless:

(a) the sale is a recognized and integral part of the teaching, educational, or research program; or

(b) (i) before the sale of the byproduct, the state commission determines that there is no other practical way of disposing of the byproduct; and

(ii) the by-product is sold at its market value as determined under the state commission accounting method.

(5) In determining for purposes of this section whether a commercial activity is a recognized and integral part of a teaching, educational, or research program that leads to a degree or other appropriate certification in accordance with standards acceptable to the Board of Regents, the state commission shall consider:

(a) whether commercial activity is necessary for:

(i) a student to obtain a degree or other appropriate certification in accordance with standards acceptable to the Board of Regents; or

(ii) a faculty member or staff member to engage in research or teaching;

(b) whether the commercial activity is a specialty good or service not generally available to the public;

(i) is sufficient to pay for the total actual costs to the institution of higher education of engaging in the commercial activity; and

(ii) is similar to a charge for that good or service if provided by a private enterprise; and

(d) whether the institution of higher education ensures that a commercial activity is:

(i) only for:

(A) a student;

(B) a faculty member;

(D) an invited guest; and

(ii) not for the general public.

Section 12. Section 63-55d-501 is enacted to read:

Part 5. Privatization Requirements

63-55d-501. Review of privatization.

(1) Notwithstanding whether a complaint is filed under Section 63-55d-602, the state commission may review whether or not an activity of a government entity should be privatized, including determining whether or not if the activity is privatized:

(a) at least the same type and quality of service or good would be provided; and

(b) the government entity would receive a cost saving.

(2) If the state commission finds that an activity of a government entity should be privatized, the state commission shall comply with Subsection 63-55d-202(6) in completing its annual report.

Section 13. Section 63-55d-502 is enacted to read:

63-55d-502. Notification of privatization.

(1) A government entity shall notify the state commission at least 30 days after the day on which a private enterprise begins to engage in the activity that the government entity privatizes.

(2) As part of the notice required by this section, a government entity shall describe:

(a) the method of privatization;

(b) the private enterprise that is engaging in the activity that is privatized;

(d) the manner by which the private enterprise assumes the liability to engage in the activity; and

(e) whether or not any change to statute was required to privatize the activity.

Section 14. Section 63-55d-601 is enacted to read:

Part 6. Enforcement

63-55d-601. Exemption from Administrative Procedures Act.

An action taken under this section by the state commission is exempt from Title 63, Chapter 46b, Administrative Procedures Act.

Section 15. Section 63-55d-602 is enacted to read:

63-55d-602. Initial process for a complaint.

(1) (a) A person who believes that a state entity is violating or has violated this chapter may file a written complaint with the state commission.

(b) The complainant shall state in the written complaint:

(i) the violation of the chapter; and

(ii) the basis for which the person believes the state entity is violating or has violated this chapter.

(2) After receiving a complaint filed in accordance Subsection (1), the state commission shall review the complaint at its next regularly scheduled meeting to determine whether the complaint is made in good faith.

(3) If the state commission determines that the complaint is made in good faith, the state commission shall:

(a) notify the following in writing that the state entity is required to respond to the complaint:

(i) the complainant; and

(ii) the state entity against which the complaint is filed; and

(b) require the state entity against which the complaint is filed to respond to the complaint.

(4) (a) Upon receipt of the notice described in Subsection (3), a state entity shall respond to the state commission in writing within 30 days of the day on which the state entity receives the notice.

(b) In the response required by this Subsection (4), the state entity shall:

(i) admit or deny that the state entity is or has violated this chapter as stated in the complaint;

(ii) state whether or not the state entity will take action to remedy a violation of this chapter as stated in the complaint; and

(iii) if the state entity is taking remedial action, the remedial action the state entity is taking.

(5) (a) If a state entity admits to a violation of this chapter and states that it will take remedial action in accordance with Subsection (4), the state commission may:

(i) monitor the remedial action of the state entity;

(ii) require additional action to remedy the violation;

(iii) impose time periods by which the state entity shall take an action; or

(iv) take a combination of actions described in Subsections (5)(a)(i) through (iii).

(b) If a state entity fails to cooperate with the state commission under this Subsection (5), the state commission may conduct a hearing in accordance with Section 63-55d-603.

Section 16. Section 63-55d-603 is enacted to read:

63-55d-603. Hearing -- Costs -- Termination of commercial activities.

(1) (a) The state commission shall hold a hearing on the complaint filed under Section 63-55d-602 if the state entity against which the complaint is filed:

(i) denies that it is or has violated this chapter; or

(ii) is determined by the state commission to have failed to cooperate as required by Subsection 63-55d-602(5).

(b) The state commission shall hold a hearing required under this Subsection (1) within 60 days of the day on which:

(i) the state commission receives the written denial of the complaint; or

(ii) the state commission determines the state entity fails to cooperate as required by Subsection 63-55d-602(5).

(c) A hearing conduct under this section is open to the public, unless the state commission closes the hearing in accordance with Title 57, Chapter 4, Open and Public Meetings Act.

(2) At a hearing conducted under this section, the state commission shall provide an opportunity to present evidence to:

(a) the complainant; and

(b) the state entity against which the complaint is filed.

(3) (a) Within 30 days after the hearing, the state commission shall:

(i) issue an order; and

(ii) provide a copy of the order to:

(A) the complainant; and

(B) the state entity against which the complaint is filed.

(b) An order required by this section shall be in writing and state:

(i) whether or not the state entity is or has violated this chapter;

(ii) what action, if any, the state entity is required to take to remedy a violation of this chapter;

(iii) if the complaint is made on the basis of the state entity engaging in a commercial activity, whether or not the state entity is required to stop engaging in the commercial activity;

(iv) the time by which a state entity shall take an action required by the order; and

(v) any other finding the state commission determines is appropriate.

(c) The state commission may, in an order required by this Subsection (3), require a state entity to privatize a commercial activity that is the basis of the complaint.

(4) If the state commission determines that a state entity against which a complaint is filed does not or has not violated this chapter, the state commission may require the complainant to pay the lesser of:

(a) the costs incurred by the state commission in reviewing the complaint and conducting the hearing; and

(b) $1,000.

(5) A complainant or state entity may appeal an action by the state commission to a district court in the same manner that an informal adjudicative proceeding is appealed under Sections 63-46b-14, 63-46b-15, 63-46b-17, and 63-46b-18.

Section 17. Section 63-55d-604 is enacted to read:

63-55d-604. Injunction.

(1) If a state entity fails to comply with an order of the state commission issued under Section 63-55d-603, the state commission may file an action in district court to enjoin the state entity from engaging in a commercial activity that is the basis of a finding by the state commission in the order.

(2) The attorney general's office shall provide legal support to the state commission for an action filed under Subsection (1).

Section 18. Section 63-55d-605 is enacted to read:

63-55d-605. Monitoring of compliance.

(1) The state commission may monitor a state entity's compliance with this chapter in accordance with rules made by the state commission.

(2) A government entity shall have written procedures implemented by the state entity to monitor its own compliance with this chapter.

Section 19. Repealer.

This bill repeals:

Section 63-55a-1, Definitions.

Section 63-55a-2, Privatization Policy Board -- Created -- Membership -- Operations -- Expenses.

Section 63-55a-3, Privatization Policy Board -- Duties.

Section 20. Effective date.

This bill takes effect on July 1, 2008.