H.B. 130

1

STATE ETHICS COMMISSION
2 2008 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Rosalind J. McGee
5 Senate Sponsor: ____________
6
7 LONG TITLE
8 General Description:
9 This bill establishes a State Ethics Commission.
10 Highlighted Provisions:
11 This bill:
12 . establishes a state ethics commission;
13 . provides that the commission is not subject to the Open and Public Meetings Act;
14 . requires that records provided to the commission be classified as protected records
15 under the Government Records Access and Management Act unless all or part of
16 the record is publicly released by the commission;
17 . provides that the commission shall hear certain ethics complaints filed against the
18 governor, lieutenant governor, state attorney general, state treasurer, state auditor,
19 and members of the Legislature;
20 . provides for membership of the commission;
21 . permits the commission to hire staff;
22 . requires the Department of Administrative Services to provide physical facilities
23 and equipment for the commission and commission staff;
24 . provides for procedures for filing ethics complaints, responding to ethics
25 complaints, and holding hearings in response to ethics complaints;
26 . provides for the consolidation of multiple complaints;
27 . provides that the commission may not schedule hearings or meetings in relation to

28 an ethics complaint filed immediately preceding an election under certain circumstances;
29 . permits the commission to issue private or public reprimands if it determines that an
30 ethics complaint is substantiated;
31 . permits the commission to publicly release ethics complaints, responses to ethics
32 complaints, and records and documents related to ethics hearings in some
33 circumstances; and
34 . requires the commission to issue an annual report of its activities.
35 Monies Appropriated in this Bill:
36 None
37 Other Special Clauses:
38 This bill coordinates with H.B. 63, Recodification of Title 63, State Affairs in General,
39 by providing technical amendments.
40 Utah Code Sections Affected:
41 AMENDS:
42 52-4-103, as last amended by Laws of Utah 2007, Chapters 35 and 45
43 63-2-304, as last amended by Laws of Utah 2007, Chapters 66 and 352
44 ENACTS:
45 63-96a-101, Utah Code Annotated 1953
46 63-96a-102, Utah Code Annotated 1953
47 63-96a-201, Utah Code Annotated 1953
48 63-96a-202, Utah Code Annotated 1953
49 63-96a-301, Utah Code Annotated 1953
50 63-96a-302, Utah Code Annotated 1953
51 63-96a-303, Utah Code Annotated 1953
52 63-96a-304, Utah Code Annotated 1953
53 63-96a-305, Utah Code Annotated 1953
54 63-96a-306, Utah Code Annotated 1953
55 63-96a-307, Utah Code Annotated 1953
56 63-96a-308, Utah Code Annotated 1953
57
58 Be it enacted by the Legislature of the state of Utah:

59 Section 1. Section 52-4-103 is amended to read:
60 52-4-103. Definitions.
61 As used in this chapter:
62 (1) "Anchor location" means the physical location from which:
63 (a) an electronic meeting originates; or
64 (b) the participants are connected.
65 (2) "Convening" means the calling of a meeting of a public body by a person
66 authorized to do so for the express purpose of discussing or acting upon a subject over which
67 that public body has jurisdiction or advisory power.
68 (3) "Electronic meeting" means a public meeting convened or conducted by means of a
69 conference using electronic communications.
70 (4) (a) "Meeting" means the convening of a public body, with a quorum present,
71 including a workshop or an executive session whether the meeting is held in person or by
72 means of electronic communications, for the purpose of discussing, receiving comments from
73 the public about, or acting upon a matter over which the public body has jurisdiction or
74 advisory power.
75 (b) "Meeting" does not mean:
76 (i) a chance meeting;
77 (ii) a social meeting; or
78 (iii) the convening of a public body that has both legislative and executive
79 responsibilities where no public funds are appropriated for expenditure during the time the
80 public body is convened and:
81 (A) the public body is convened solely for the discussion or implementation of
82 administrative or operational matters for which no formal action by the public body is required;
83 or
84 (B) the public body is convened solely for the discussion or implementation of
85 administrative or operational matters that would not come before the public body for
86 discussion or action.
87 (5) "Monitor" means to hear or observe, live, by audio or video equipment, all of the
88 public statements of each member of the public body who is participating in a meeting.
89 (6) "Participate" means the ability to communicate with all of the members of a public

90 body, either verbally or electronically, so that each member of the public body can hear or
91 observe the communication.
92 (7) (a) "Public body" means any administrative, advisory, executive, or legislative body
93 of the state or its political subdivisions that:
94 (i) is created by the Utah Constitution, statute, rule, ordinance, or resolution;
95 (ii) consists of two or more persons;
96 (iii) expends, disburses, or is supported in whole or in part by tax revenue; and
97 (iv) is vested with the authority to make decisions regarding the public's business.
98 (b) "Public body" does not include [a]:
99 (i) a political party, political group, or political caucus; [or]
100 (ii) a conference committee, rules committee, or sifting committee of the Legislature[.];
101 or
102 (iii) the State Ethics Commission established under Section 63-96a-201 .
103 (8) "Public statement" means a statement made in the ordinary course of business of
104 the public body with the intent that all other members of the public body receive it.
105 (9) (a) "Quorum" means a simple majority of the membership of a public body, unless
106 otherwise defined by applicable law.
107 (b) "Quorum" does not include a meeting of two elected officials by themselves when
108 no action, either formal or informal, is taken on a subject over which these elected officials
109 have advisory power.
110 (10) "Recording" means an audio, or an audio and video, record of the proceedings of a
111 meeting that can be used to review the proceedings of the meeting.
112 Section 2. Section 63-2-304 is amended to read:
113 63-2-304. Protected records.
114 The following records are protected if properly classified by a governmental entity:
115 (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
116 has provided the governmental entity with the information specified in Section 63-2-308 ;
117 (2) commercial information or nonindividual financial information obtained from a
118 person if:
119 (a) disclosure of the information could reasonably be expected to result in unfair
120 competitive injury to the person submitting the information or would impair the ability of the

121 governmental entity to obtain necessary information in the future;
122 (b) the person submitting the information has a greater interest in prohibiting access
123 than the public in obtaining access; and
124 (c) the person submitting the information has provided the governmental entity with
125 the information specified in Section 63-2-308 ;
126 (3) commercial or financial information acquired or prepared by a governmental entity
127 to the extent that disclosure would lead to financial speculations in currencies, securities, or
128 commodities that will interfere with a planned transaction by the governmental entity or cause
129 substantial financial injury to the governmental entity or state economy;
130 (4) records the disclosure of which could cause commercial injury to, or confer a
131 competitive advantage upon a potential or actual competitor of, a commercial project entity as
132 defined in Subsection 11-13-103 (4);
133 (5) test questions and answers to be used in future license, certification, registration,
134 employment, or academic examinations;
135 (6) records the disclosure of which would impair governmental procurement
136 proceedings or give an unfair advantage to any person proposing to enter into a contract or
137 agreement with a governmental entity, except that this Subsection (6) does not restrict the right
138 of a person to see bids submitted to or by a governmental entity after bidding has closed;
139 (7) records that would identify real property or the appraisal or estimated value of real
140 or personal property, including intellectual property, under consideration for public acquisition
141 before any rights to the property are acquired unless:
142 (a) public interest in obtaining access to the information outweighs the governmental
143 entity's need to acquire the property on the best terms possible;
144 (b) the information has already been disclosed to persons not employed by or under a
145 duty of confidentiality to the entity;
146 (c) in the case of records that would identify property, potential sellers of the described
147 property have already learned of the governmental entity's plans to acquire the property;
148 (d) in the case of records that would identify the appraisal or estimated value of
149 property, the potential sellers have already learned of the governmental entity's estimated value
150 of the property; or
151 (e) the property under consideration for public acquisition is a single family residence

152 and the governmental entity seeking to acquire the property has initiated negotiations to acquire
153 the property as required under Section 78-34-4.5 ;
154 (8) records prepared in contemplation of sale, exchange, lease, rental, or other
155 compensated transaction of real or personal property including intellectual property, which, if
156 disclosed prior to completion of the transaction, would reveal the appraisal or estimated value
157 of the subject property, unless:
158 (a) the public interest in access outweighs the interests in restricting access, including
159 the governmental entity's interest in maximizing the financial benefit of the transaction; or
160 (b) when prepared by or on behalf of a governmental entity, appraisals or estimates of
161 the value of the subject property have already been disclosed to persons not employed by or
162 under a duty of confidentiality to the entity;
163 (9) records created or maintained for civil, criminal, or administrative enforcement
164 purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
165 release of the records:
166 (a) reasonably could be expected to interfere with investigations undertaken for
167 enforcement, discipline, licensing, certification, or registration purposes;
168 (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
169 proceedings;
170 (c) would create a danger of depriving a person of a right to a fair trial or impartial
171 hearing;
172 (d) reasonably could be expected to disclose the identity of a source who is not
173 generally known outside of government and, in the case of a record compiled in the course of
174 an investigation, disclose information furnished by a source not generally known outside of
175 government if disclosure would compromise the source; or
176 (e) reasonably could be expected to disclose investigative or audit techniques,
177 procedures, policies, or orders not generally known outside of government if disclosure would
178 interfere with enforcement or audit efforts;
179 (10) records the disclosure of which would jeopardize the life or safety of an
180 individual;
181 (11) records the disclosure of which would jeopardize the security of governmental
182 property, governmental programs, or governmental recordkeeping systems from damage, theft,

183 or other appropriation or use contrary to law or public policy;
184 (12) records that, if disclosed, would jeopardize the security or safety of a correctional
185 facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
186 with the control and supervision of an offender's incarceration, treatment, probation, or parole;
187 (13) records that, if disclosed, would reveal recommendations made to the Board of
188 Pardons and Parole by an employee of or contractor for the Department of Corrections, the
189 Board of Pardons and Parole, or the Department of Human Services that are based on the
190 employee's or contractor's supervision, diagnosis, or treatment of any person within the board's
191 jurisdiction;
192 (14) records and audit workpapers that identify audit, collection, and operational
193 procedures and methods used by the State Tax Commission, if disclosure would interfere with
194 audits or collections;
195 (15) records of a governmental audit agency relating to an ongoing or planned audit
196 until the final audit is released;
197 (16) records prepared by or on behalf of a governmental entity solely in anticipation of
198 litigation that are not available under the rules of discovery;
199 (17) records disclosing an attorney's work product, including the mental impressions or
200 legal theories of an attorney or other representative of a governmental entity concerning
201 litigation;
202 (18) records of communications between a governmental entity and an attorney
203 representing, retained, or employed by the governmental entity if the communications would be
204 privileged as provided in Section 78-24-8 ;
205 (19) (a) (i) personal files of a state legislator, including personal correspondence to or
206 from a member of the Legislature; and
207 (ii) notwithstanding Subsection (19)(a)(i), correspondence that gives notice of
208 legislative action or policy may not be classified as protected under this section; and
209 (b) (i) an internal communication that is part of the deliberative process in connection
210 with the preparation of legislation between:
211 (A) members of a legislative body;
212 (B) a member of a legislative body and a member of the legislative body's staff; or
213 (C) members of a legislative body's staff; and

214 (ii) notwithstanding Subsection (19)(b)(i), a communication that gives notice of
215 legislative action or policy may not be classified as protected under this section;
216 (20) (a) records in the custody or control of the Office of Legislative Research and
217 General Counsel, that, if disclosed, would reveal a particular legislator's contemplated
218 legislation or contemplated course of action before the legislator has elected to support the
219 legislation or course of action, or made the legislation or course of action public; and
220 (b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
221 Office of Legislative Research and General Counsel is a public document unless a legislator
222 asks that the records requesting the legislation be maintained as protected records until such
223 time as the legislator elects to make the legislation or course of action public;
224 (21) research requests from legislators to the Office of Legislative Research and
225 General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared
226 in response to these requests;
227 (22) drafts, unless otherwise classified as public;
228 (23) records concerning a governmental entity's strategy about collective bargaining or
229 pending litigation;
230 (24) records of investigations of loss occurrences and analyses of loss occurrences that
231 may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the
232 Uninsured Employers' Fund, or similar divisions in other governmental entities;
233 (25) records, other than personnel evaluations, that contain a personal recommendation
234 concerning an individual if disclosure would constitute a clearly unwarranted invasion of
235 personal privacy, or disclosure is not in the public interest;
236 (26) records that reveal the location of historic, prehistoric, paleontological, or
237 biological resources that if known would jeopardize the security of those resources or of
238 valuable historic, scientific, educational, or cultural information;
239 (27) records of independent state agencies if the disclosure of the records would
240 conflict with the fiduciary obligations of the agency;
241 (28) records of an institution within the state system of higher education defined in
242 Section 53B-1-102 regarding tenure evaluations, appointments, applications for admissions,
243 retention decisions, and promotions, which could be properly discussed in a meeting closed in
244 accordance with Title 52, Chapter 4, Open and Public Meetings Act, provided that records of

245 the final decisions about tenure, appointments, retention, promotions, or those students
246 admitted, may not be classified as protected under this section;
247 (29) records of the governor's office, including budget recommendations, legislative
248 proposals, and policy statements, that if disclosed would reveal the governor's contemplated
249 policies or contemplated courses of action before the governor has implemented or rejected
250 those policies or courses of action or made them public;
251 (30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
252 revenue estimates, and fiscal notes of proposed legislation before issuance of the final
253 recommendations in these areas;
254 (31) records provided by the United States or by a government entity outside the state
255 that are given to the governmental entity with a requirement that they be managed as protected
256 records if the providing entity certifies that the record would not be subject to public disclosure
257 if retained by it;
258 (32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
259 except as provided in Section 52-4-206 ;
260 (33) records that would reveal the contents of settlement negotiations but not including
261 final settlements or empirical data to the extent that they are not otherwise exempt from
262 disclosure;
263 (34) memoranda prepared by staff and used in the decision-making process by an
264 administrative law judge, a member of the Board of Pardons and Parole, or a member of any
265 other body charged by law with performing a quasi-judicial function;
266 (35) records that would reveal negotiations regarding assistance or incentives offered
267 by or requested from a governmental entity for the purpose of encouraging a person to expand
268 or locate a business in Utah, but only if disclosure would result in actual economic harm to the
269 person or place the governmental entity at a competitive disadvantage, but this section may not
270 be used to restrict access to a record evidencing a final contract;
271 (36) materials to which access must be limited for purposes of securing or maintaining
272 the governmental entity's proprietary protection of intellectual property rights including patents,
273 copyrights, and trade secrets;
274 (37) the name of a donor or a prospective donor to a governmental entity, including an
275 institution within the state system of higher education defined in Section 53B-1-102 , and other

276 information concerning the donation that could reasonably be expected to reveal the identity of
277 the donor, provided that:
278 (a) the donor requests anonymity in writing;
279 (b) any terms, conditions, restrictions, or privileges relating to the donation may not be
280 classified protected by the governmental entity under this Subsection (37); and
281 (c) except for an institution within the state system of higher education defined in
282 Section 53B-1-102 , the governmental unit to which the donation is made is primarily engaged
283 in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority
284 over the donor, a member of the donor's immediate family, or any entity owned or controlled
285 by the donor or the donor's immediate family;
286 (38) accident reports, except as provided in Sections 41-6a-404 , 41-12a-202 , and
287 73-18-13 ;
288 (39) a notification of workers' compensation insurance coverage described in Section
289 34A-2-205 ;
290 (40) (a) the following records of an institution within the state system of higher
291 education defined in Section 53B-1-102 , which have been developed, discovered, disclosed to,
292 or received by or on behalf of faculty, staff, employees, or students of the institution:
293 (i) unpublished lecture notes;
294 (ii) unpublished notes, data, and information:
295 (A) relating to research; and
296 (B) of:
297 (I) the institution within the state system of higher education defined in Section
298 53B-1-102 ; or
299 (II) a sponsor of sponsored research;
300 (iii) unpublished manuscripts;
301 (iv) creative works in process;
302 (v) scholarly correspondence; and
303 (vi) confidential information contained in research proposals;
304 (b) Subsection (40)(a) may not be construed to prohibit disclosure of public
305 information required pursuant to Subsection 53B-16-302 (2)(a) or (b); and
306 (c) Subsection (40)(a) may not be construed to affect the ownership of a record;

307 (41) (a) records in the custody or control of the Office of Legislative Auditor General
308 that would reveal the name of a particular legislator who requests a legislative audit prior to the
309 date that audit is completed and made public; and
310 (b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
311 Office of the Legislative Auditor General is a public document unless the legislator asks that
312 the records in the custody or control of the Office of Legislative Auditor General that would
313 reveal the name of a particular legislator who requests a legislative audit be maintained as
314 protected records until the audit is completed and made public;
315 (42) records that provide detail as to the location of an explosive, including a map or
316 other document that indicates the location of:
317 (a) a production facility; or
318 (b) a magazine;
319 (43) information contained in the database described in Section 62A-3-311.1 ;
320 (44) information contained in the Management Information System and Licensing
321 Information System described in Title 62A, Chapter 4a, Child and Family Services;
322 (45) information regarding National Guard operations or activities in support of the
323 National Guard's federal mission;
324 (46) records provided by any pawn or secondhand business to a law enforcement
325 agency or to the central database in compliance with Title 13, Chapter 32a, Pawnshop and
326 Secondhand Merchandise Transaction Information Act;
327 (47) information regarding food security, risk, and vulnerability assessments performed
328 by the Department of Agriculture and Food;
329 (48) except to the extent that the record is exempt from this chapter pursuant to Section
330 63-2-106 , records related to an emergency plan or program prepared or maintained by the
331 Division of Homeland Security the disclosure of which would jeopardize:
332 (a) the safety of the general public; or
333 (b) the security of:
334 (i) governmental property;
335 (ii) governmental programs; or
336 (iii) the property of a private person who provides the Division of Homeland Security
337 information;

338 (49) records of the Department of Agriculture and Food relating to the National
339 Animal Identification System or any other program that provides for the identification, tracing,
340 or control of livestock diseases, including any program established under Title 4, Chapter 24,
341 Utah Livestock Brand and Anti-theft Act or Title 4, Chapter 31, Livestock Inspection and
342 Quarantine;
343 (50) as provided in Section 26-39-109 :
344 (a) information or records held by the Department of Health related to a complaint
345 regarding a child care program or residential child care which the department is unable to
346 substantiate; and
347 (b) information or records related to a complaint received by the Department of Health
348 from an anonymous complainant regarding a child care program or residential child care; [and]
349 (51) unless otherwise classified as public under Section 63-2-301 and except as
350 provided under Section 41-1a-116 , an individual's home address, home telephone number, or
351 personal mobile phone number, if:
352 (a) the individual is required to provide the information in order to comply with a law,
353 ordinance, rule, or order of a government entity; and
354 (b) the subject of the record has a reasonable expectation that this information will be
355 kept confidential due to:
356 (i) the nature of the law, ordinance, rule, or order; and
357 (ii) the individual complying with the law, ordinance, rule, or order[.]; and
358 (52) records filed with or in the custody or control of the State Ethics Commission in
359 relation to an ethics complaint or hearing, unless the record has been declared a public record
360 under Section 63-96a-308 .
361 Section 3. Section 63-96a-101 is enacted to read:
362 CHAPTER 96a. STATE ETHICS COMMISSION ACT
363 Part 1. General Provisions
364 63-96a-101. Title.
365 This chapter is known as the "State Ethics Commission Act."
366 Section 4. Section 63-96a-102 is enacted to read:
367 63-96a-102. Definitions.
368 As used in this chapter:

369 (1) "Respondent" means the individual against whom an ethics complaint is filed.
370 (2) "Witness" means any of the following persons when offering testimony at an ethics
371 hearing held in response to an ethics complaint filed under this chapter:
372 (a) the person who filed the ethics complaint;
373 (b) the respondent; or
374 (c) any other person offering testimony during the ethics hearing.
375 Section 5. Section 63-96a-201 is enacted to read:
376 Part 2. State Ethics Commission
377 63-96a-201. State Ethics Commission -- Creation -- Membership.
378 (1) There is created a State Ethics Commission composed of five members as follows:
379 (a) a member designated by the governor;
380 (b) a member designated by the president of the Senate;
381 (c) a member designated by the minority leader of the Senate;
382 (d) a member designated by the speaker of the House of Representatives; and
383 (e) a member designated by the minority leader of the House of Representatives.
384 (2) (a) Each member of the commission shall be registered to vote in the state.
385 (b) A member of the commission may not, during the member's