H.B. 78

1

WITNESS IMMUNITY AMENDMENTS
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: David L. Gladwell
5 AN ACT RELATING TO THE CODE OF CRIMINAL PROCEDURE; SETTING OUT THE
6 SCOPE OF THE AUTHORITY OF CITY AND COUNTY ATTORNEYS TO GRANT
7 IMMUNITY; CHANGING THE PROVISIONS FOR IMMUNITY IN CRIMINAL CASES TO
8 USE IMMUNITY; ENACTING THE GRANTS OF IMMUNITY ACT; DEFINING THE
9 SCOPE, PURPOSE, AND APPLICATION OF USE IMMUNITY; MAKING TECHNICAL
10 CORRECTIONS; AND PROVIDING AN EFFECTIVE DATE.
11 This act affects sections of Utah Code Annotated 1953 as follows:
12 AMENDS:
13 4-32-9, as last amended by Chapter 178, Laws of Utah 1986
14 10-3-928, as last amended by Chapter 38, Laws of Utah 1993
15 13-11-16, as enacted by Chapter 188, Laws of Utah 1973
16 17-18-1.5, as enacted by Chapter 38, Laws of Utah 1993
17 20A-1-703, as last amended by Chapter 258, Laws of Utah 1996
18 20A-11-207, as enacted by Chapter 1, Laws of Utah 1995
19 20A-11-306, as enacted by Chapter 1, Laws of Utah 1995
20 20A-11-403, as enacted by Chapter 1, Laws of Utah 1995
21 20A-11-508, as enacted by Chapter 1, Laws of Utah 1995
22 31A-2-305, as enacted by Chapter 242, Laws of Utah 1985
23 34-20-11, as enacted by Chapter 85, Laws of Utah 1969
24 34-35-5 (Renumbered 07/01/97), as last amended by Chapter 191, Laws of Utah 1989
25 35-4-502 (Renumbered 07/01/97), as last amended by Chapter 240, Laws of Utah 1996
26 35A-4-502 (Effective 07/01/97), as renumbered and amended by Chapter 240 and last amended
27 by Chapter 243, Laws of Utah 1996

1 35A-5-104 (Effective 07/01/97), as renumbered and amended by Chapter 240, Laws of Utah
2 1996
3 76-7-101, as enacted by Chapter 196, Laws of Utah 1973
4 76-8-806, as enacted by Chapter 196, Laws of Utah 1973
5 77-22-1, as enacted by Chapter 15, Laws of Utah 1980
6 ENACTS:
7 77-22b-1, Utah Code Annotated 1953
8 77-22b-2, Utah Code Annotated 1953
9 REPEALS:
10 20A-1-702, as enacted by Chapter 1, Laws of Utah 1993
11 58-37-16, as enacted by Chapter 145, Laws of Utah 1971
12 62A-11-318, as enacted by Chapter 1, Laws of Utah 1988
13 77-22-3, as last amended by Chapter 38, Laws of Utah 1993
14 Be it enacted by the Legislature of the state of Utah:
15 Section 1. Section 4-32-9 is amended to read:
16 4-32-9. Additional powers of commissioner.
17 (1) The commissioner [also has power] may:
18 (a) [to] gather and compile information concerning and, to investigate the organization,
19 business, conduct, practices, and management of any person subject to this chapter;
20 (b) [to] require any person subject to this chapter to file information regarding the person's
21 business or operation as the commissioner requires;
22 (c) for the purpose of this chapter, at all reasonable times [to] have access to, for the
23 purpose of examination, and the right to copy any documentary evidence, of any person being
24 investigated or proceeded against, and may require by subpoena the attendance and testimony of
25 witnesses and the production of all documentary evidence of any person relating to any matter
26 under investigation;
27 (d) [to] require the attendance of witnesses and the production of documentary evidence
28 at any place designated for hearing; in case of disobedience to a subpoena, the commissioner may
29 invoke the aid of any court of competent jurisdiction to compel the attendance of witnesses and
30 the production of documentary evidence; and
31 (e) [to] order testimony to be taken by deposition in any proceeding or investigation

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1 pending under this chapter at any stage of the proceeding or investigation; the depositions may be
2 taken before any person with power to administer oaths designated by the commissioner, and the
3 testimony shall be reduced to writing by the person taking the deposition, or under his direction
4 and shall then be subscribed by the deponent.
5 (2) [No person may be excused from attending and testifying or from producing books,
6 papers, schedules of charges, contracts, agreements, or other documentary evidence before the
7 commissioner or in obedience to the subpoena of the commissioner, whether the subpoena is
8 signed or issued by him or his delegate, or in any cause or proceeding, criminal or otherwise, based
9 upon or growing out of any alleged violation of this chapter, on the ground or for the reason that
10 the testimony or evidence, documentary or otherwise, required of the person may tend to
11 incriminate or subject the person to a penalty or forfeiture; but no individual may be prosecuted
12 or subjected to a penalty or forfeiture for or on account of any transaction, matter, or thing
13 concerning which he is compelled, after having claimed his privilege against self-incrimination,
14 to testify or produce evidence, documentary or otherwise, except that any individual so testifying
15 may not be exempt from prosecution or punishment for perjury committed while so testifying.]
16 In the event a witness asserts a privilege against self-incrimination, testimony and evidence from
17 the witness may be compelled pursuant to Title 77, Chapter 22b, Grants of Immunity.
18 (3) (a) Any person [that] who without just cause neglects or refuses to attend and testify
19 or to answer any lawful inquiry, or to produce documentary evidence, if in his power to do so, in
20 obedience to the subpoena or lawful requirement of the commissioner is guilty of a class A
21 misdemeanor[; a]. Any fine imposed [shall be] may not be less than $500.
22 (b) Any person that willfully makes, or causes to be made, any false entry or statement of
23 fact in any report required to be made under this chapter, or that willfully makes, or causes to be
24 made, any false entry in any account, record, or memorandum kept by any person subject to this
25 chapter, or that neglects or fails to make, or to cause to be made, full, true, and correct entries in
26 those accounts, records, or memoranda, of all facts and transactions appertaining to the business
27 of that person or that willfully removes out of the jurisdiction of this state, or willfully mutilates,
28 alters, or by any other means falsifies any documentary evidence of any person subject to this
29 chapter or that willfully refuses to submit to the commissioner or to any of the commissioner's
30 authorized agents, for the purpose of inspection and [taking] making copies, any documentary
31 evidence of any person subject to this chapter within the person's possession or control is guilty

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1 of a class A misdemeanor[, and a]. Any fine imposed [shall be] may not be less than $500.
2 (c) If any person required by this chapter to file any annual or special report fails to do so
3 within the time fixed by the commissioner, and the failure continues for 30 days after notice of
4 default, the person shall forfeit to the state the sum of $10 for each day of the continuance of the
5 failure, which forfeiture is payable into the treasury of this state, and is recoverable in a civil suit
6 in the name of the state brought in the district where the person has a principal office or in any
7 district in which he does business. The various county attorneys, under the direction of the
8 attorney general of this state, shall prosecute for the recovery of the forfeitures. The costs and
9 expenses of prosecution shall be paid out of the appropriation for the expenses of the courts of this
10 state.
11 Section 2. Section 10-3-928 is amended to read:
12 10-3-928. Attorney duties -- Deputy public prosecutor.
13 In cities with a city attorney, the city attorney may prosecute violations of city ordinances,
14 and under state law, infractions and misdemeanors occurring within the boundaries of the
15 municipality and has the same powers in respect to [the] violations as are exercised by a county
16 attorney or district attorney, [including, but not limited to, granting immunity to witnesses] except
17 that a city attorney's authority to grant immunity shall be limited to granting transactional
18 immunity for violations of city ordinances, and under state law, infractions, and misdemeanors
19 occurring within the boundaries of the municipality. The city attorney shall represent the interests
20 of the state or the municipality in the appeal of any matter prosecuted in any trial court by the city
21 attorney.
22 Section 3. Section 13-11-16 is amended to read:
23 13-11-16. Investigatory powers of enforcing authority.
24 (1) If, by his own inquiries or as a result of complaints, the enforcing authority has reason
25 to believe that a person has engaged in, is engaging in, or is about to engage in an act or practice
26 that violates this act, he may administer oaths and affirmations, subpoena witnesses or matter, and
27 collect evidence.
28 (2) If matter that the enforcing authority subpoenas is located outside this state, the person
29 subpoenaed may either make it available to the enforcing authority at a convenient location within
30 the state or pay the reasonable and necessary expenses for the enforcing authority or his
31 representative to examine the matter at the place where it is located. The enforcing authority may

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1 designate representatives, including officials of the state in which the matter is located, to inspect
2 the matter on his behalf, and he may respond to similar requests from officials of other states.
3 (3) Upon failure of a person without lawful excuse to obey a subpoena and upon
4 reasonable notice to all persons affected, the enforcing authority may apply to the court for an
5 order compelling compliance.
6 (4) [The enforcing authority may request that an individual who refuses to comply with
7 a subpoena on the ground that testimony or matter may incriminate him be ordered by the court
8 to provide the testimony or matter. Except in a prosecution for perjury, an individual who complies
9 with a court order to provide testimony or matter after asserting a privilege against
10 self-incrimination to which he is entitled by law, may not be subjected to a criminal proceeding
11 or to a civil penalty to the transaction concerning which he is required to testify or produce
12 relevant matter. This subsection does not apply to damages recoverable under Section 13-11-19(2)
13 or to civil sanctions imposed under Section 13-11-17(1)(b).] In the event a witness asserts a
14 privilege against self-incrimination, testimony and evidence from the witness may be compelled
15 pursuant to Title 77, Chapter 22b, Grants of Immunity.
16 Section 4. Section 17-18-1.5 is amended to read:
17 17-18-1.5. Powers -- Duties of county attorney within a prosecution district --
18 Prohibitions.
19 (1) In each county which is within a state prosecution district, the county attorney is a
20 public prosecutor only for the purpose of prosecuting violations of county ordinances or as
21 otherwise provided by law and shall:
22 (a) conduct on behalf of the county all prosecutions for violations of county ordinances
23 committed within the county;
24 (b) have authority to grant transactional immunity for violations of county ordinances
25 committed within the county;
26 [(b)] (c) institute proceedings before the proper magistrate for the arrest of persons charged
27 with or reasonably suspected of violations of county ordinances when in possession of information
28 that the violation has been committed, and for that purpose shall attend court in person or by
29 deputy in cases of arrests when required; and
30 [(c)] (d) when it does not conflict with other official duties, attend to all legal business
31 required in the county by the attorney general without charge when the interests of the state are

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1 involved.
2 (2) The county attorney:
3 (a) may appear and prosecute in all civil cases in which the state may be interested; and
4 (b) shall render assistance as required by the attorney general in all civil cases that may
5 be appealed to the Supreme Court and [shall] prosecute the appeal from any violation of a county
6 ordinance.
7 (3) The county attorney shall:
8 (a) draw all informations for violations of a county ordinance;
9 (b) cause all persons informed against to be speedily arraigned;
10 (c) cause all witnesses for the county to be subpoenaed to appear before the court;
11 (d) upon the order of the court, institute proceedings in the name of the county for recovery
12 upon the forfeiture of any appearance or other bonds running to the county and enforce the
13 collection of them; and
14 (e) perform other duties as required by law.
15 (4) The county attorney shall:
16 (a) receive from the clerk of the district court a record of past-due fines, penalties, costs,
17 and forfeitures and take action to collect the past due amounts;
18 (b) at the close of every term of the district court prepare a statement of all fines, penalties,
19 and forfeitures accruing to the state that have been collected or received by any officer required
20 to collect or receive them, stating each case and the amount, and shall transmit the list to the state
21 auditor; and
22 (c) proceed against any officer and sureties under this subsection for any neglect of duty.
23 (5) The county attorney shall:
24 (a) ascertain by all practicable means what estate or property within the county has
25 escheated or reverted to the state;
26 (b) require the assessor of taxes of the county to furnish annually a list of all real or
27 personal property that may have so escheated or reverted; and
28 (c) file a copy of the list in the office of the state auditor and of the attorney general.
29 (6) The county attorney shall:
30 (a) defend all actions brought against the county;
31 (b) prosecute all actions for the recovery of debts, fines, penalties, and forfeitures accruing

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1 to the county;
2 (c) give, when required and without fee, an opinion in writing to county, district, precinct,
3 and prosecution district officers on matters relating to the duties of their respective offices;
4 (d) deliver receipts for money or property received in an official capacity and file
5 duplicates with the county treasurer; and
6 (e) on the first Monday of each month file with the auditor an account verified by oath of
7 all money received in an official capacity during the preceding month, and at the same time pay
8 it over to the county treasurer.
9 (7) A county attorney may not:
10 (a) in any manner consult, advise, counsel, or defend within this state any person charged
11 with any crime, misdemeanor, or breach of any penal statute or ordinance;
12 (b) be qualified to prosecute or dismiss in the name of the county any case in which the
13 county attorney has previously acted as counsel for the accused on the pending charge; or
14 (c) in any case compromise any cause or enter a nolle prosequi after the filing of an
15 information without the consent of the court.
16 (8) The county attorney or his deputy may be sworn as a deputy district attorney for the
17 purpose of public convenience for a period of time and subject to limitations specified by the
18 district attorney.
19 Section 5. Section 20A-1-703 is amended to read:
20 20A-1-703. Proceedings by registered voter.
21 (1) Any registered voter who has information that any provisions of this title have been
22 violated by any candidate for whom the registered voter had the right to vote, by any personal
23 campaign committee of that candidate, by any member of that committee, or by any election
24 official, may file a verified petition with the lieutenant governor.
25 (2) (a) The lieutenant governor shall gather information and determine if a special
26 investigation is necessary.
27 (b) If the lieutenant governor determines that a special investigation is necessary, the
28 lieutenant governor shall refer the information to the attorney general, who shall:
29 (i) bring a special proceeding to investigate and determine whether or not there has been
30 a violation; and
31 (ii) appoint special counsel to conduct that proceeding on behalf of the state.

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1 (3) If it appears from the petition or otherwise that sufficient evidence is obtainable to
2 show that there is probable cause to believe that a violation has occurred, the attorney general
3 shall:
4 (a) grant leave to bring the proceeding; and
5 (b) appoint special counsel to conduct the proceeding.
6 (4) (a) If leave is granted, the registered voter may, by a special proceeding brought in the
7 district court in the name of the state upon the relation of the registered voter, investigate and
8 determine whether or not the candidate, candidate's personal campaign committee, any member
9 of the candidate's personal campaign committee, or any election officer has violated any provision
10 of this title.
11 (b) (i) In the proceeding, the complaint shall:
12 (A) be served with the summons; and
13 (B) set forth the name of the person or persons who have allegedly violated this title and
14 the grounds of those violations in detail.
15 (ii) The complaint may not be amended except by leave of the court.
16 (iii) The summons and complaint in the proceeding shall be filed with the court no later
17 than five days after they are served.
18 (c) (i) The answer to the complaint shall be served and filed within ten days after the
19 service of the summons and complaint.
20 (ii) Any allegation of new matters in the answer shall be considered controverted by the
21 adverse party without reply, and the proceeding shall be considered at issue and stand ready for
22 trial upon five days' notice of trial.
23 (d) (i) All proceedings initiated under this section have precedence over any other civil
24 actions.
25 (ii) The court shall always be considered open for the trial of the issues raised in this
26 proceeding.
27 (iii) The proceeding shall be tried and determined as a civil action without a jury, with the
28 court determining all issues of fact and issues of law.
29 (iv) If more than one proceeding is pending or the election of more than one person is
30 investigated and contested, the court may:
31 (A) order the proceedings consolidated and heard together; and

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1 (B) equitably apportion costs and disbursements.
2 (e) (i) Either party may request a change of venue as provided by law in civil actions, but
3 application for a change of venue must be made within five days after service of summons and
4 complaint.
5 (ii) The judge shall decide the request for a change of venue and issue any necessary orders
6 within three days after the application is made.
7 (iii) If a party fails to request a change of venue within five days of service, he has waived
8 his right to a change of venue.
9 (f) (i) If judgment is in favor of the plaintiff, the relator may petition the judge to recover
10 his taxable costs and disbursements against the person whose right to the office is contested.
11 (ii) The judge may not award costs to the defendant unless it appears that the proceeding
12 was brought in bad faith.
13 (iii) Subject to the limitations contained in Subsection (f), the judge may decide whether
14 or not to award costs and disbursements.
15 (5) Nothing in this section may be construed to prohibit any other civil or criminal actions
16 or remedies against alleged violators.
17 (6) In the event a witness asserts a privilege against self-incrimination, testimony and
18 evidence from the witness may be compelled pursuant to Title 77, Chapter 22b, Grants of
19 Immunity.
20 Section 6. Section 20A-11-207 is amended to read:
21 20A-11-207. State office candidate -- Criminal penalties.
22 (1) (a) Each state office candidate or state office candidate's personal campaign committee
23 that violates this part is guilty of a class A misdemeanor.
24 (b) Each violation of this part is a separate offense.
25 (c) When it appears that an individual or group of individuals has violated this part, the
26 person who directed the violation shall be charged with the violation.
27 (2) Any person who aids, abets, or advises a violation of any provision of this part is guilty
28 of a class B misdemeanor.
29 (3) (a) It is unlawful to administer the oath of office, or to issue a certificate of nomination
30 or of election to any state office candidate until the candidate's personal campaign committee has
31 filed the statements required by this part.

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1 (b) Any person who violates this subsection is guilty of a class A misdemeanor.
2 (4) (a) It is unlawful for a person elected to a state office to:
3 (i) enter upon the duties of the office until the personal campaign committee has filed the
4 required financial statements; and
5 (ii) receive any salary or fees for the period before the filing of the statement.
6 (b) Any person who violates this section is guilty of a class A misdemeanor.
7 [(5) (a) A person otherwise competent as a witness may not be excused from answering
8 any question in any proceedings under this part on the ground that his answer will tend to
9 incriminate him.]
10 [(b) A person may not be prosecuted for any offense about which he testified for the
11 prosecution, except in an action for perjury in giving that testimony.]
12 Section 7. Section 20A-11-306 is amended to read:
13 20A-11-306. Legislative office candidate -- Criminal penalties.
14 (1) (a) Each legislative office candidate that violates this part is guilty of a class A
15 misdemeanor.
16 (b) Each violation of this part is a separate offense.
17 (c) When it appears that an individual or group of individuals has violated this part, the
18 person who directed the violation shall be charged with the violation.
19 (2) Any person who aids, abets, or advises a violation of any provision of this part is guilty
20 of a class B misdemeanor.
21 [(3) (a) A person otherwise competent as a witness may not be excused from answering
22 any question in any proceedings under this part on the grounds that his answer will tend to
23 incriminate him.]
24 [(b) A person may not be prosecuted for any offense about which he testified for the
25 prosecution, except in an action for perjury in giving that testimony.]
26 Section 8. Section 20A-11-403 is amended to read:
27 20A-11-403. Officeholder financial reporting requirements -- Criminal penalties.
28 (1) (a) Each officeholder that violates this part is guilty of a class A misdemeanor.
29 (b) Each violation of this part is a separate offense.
30 (c) When it appears that an individual or group of individuals has violated this part, the
31 person who directed the violation shall be charged with the violation.

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1 (2) Any person who aids, abets, or advises a violation of any provision of this part is guilty
2 of a class B misdemeanor.
3 [(3) (a) A person otherwise competent as a witness may not be excused from answering
4 any question in any proceedings under this part on the ground that his answer will tend to
5 incriminate him.]
6 [(b) A person may not be prosecuted for any offense about which he testified for the
7 prosecution, except in an action for perjury in giving that testimony.]
8 Section 9. Section 20A-11-508 is amended to read:
9 20A-11-508. Political party registration requirements -- Criminal penalties.
10 (1) (a) Each registered political party that violates Section 20A-11-506 or 20A-11-507 is
11 guilty of a class A misdemeanor.
12 (b) Each violation of those sections is a separate offense.
13 (c) When it appears that an individual or group of individuals has violated those sections,
14 the person who directed the violation shall be charged with the violation.
15 (2) Any person who aids, abets, or advises a violation of Section 20A-11-506 or
16 20A-11-507 is guilty of a class B misdemeanor.
17 [(3) (a) A person otherwise competent as a witness may not be excused from answering
18 any question in any proceedings under this part on the ground that his answer will tend to
19 incriminate him.]
20 [(b) A person may not be prosecuted for any offense about which he testified for the
21 prosecution, except in an action for perjury in giving that testimony.]
22 Section 10. Section 31A-2-305 is amended to read:
23 31A-2-305. Immunity from prosecution.
24 (1) If a natural person declines to appear, testify, or produce any record or document in any
25 proceeding instituted by the commissioner or in obedience to the subpoena of the commissioner,
26 [on the ground that the testimony or evidence required may tend to incriminate the person,] the
27 commissioner may apply to a judge of the district court where the proceeding is held for an order
28 to the person to attend, testify, or produce records or documents as requested by the commissioner.
29 [No person may be criminally prosecuted for any matter which the person is compelled by the
30 court's order to testify or produce evidence after claiming the privilege against self-incrimination,
31 except that the person testifying is subject to prosecution and punishment for perjury committed

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1 in testifying or for contempt. Evidence derived from the testimony or document production
2 compelled under this section is admissible for prosecution of perjury or contempt]. In the event
3 a witness asserts a privilege against self-incrimination, testimony and evidence from the witness
4 may be compelled pursuant to Title 77, Chapter 22b, Grants of Immunity.
5 (2) If a person claims the privilege against self-incrimination and refuses to appear, testify,
6 or produce documents in response to probative evidence against him in a proceeding to revoke or
7 suspend his license, and if the testimony or documents would have been admissible as evidence
8 in a court of law except for the Fifth Amendment privilege, the refusal to appear, testify, or
9 produce documents is, for noncriminal proceedings only, rebuttable evidence of the facts on which
10 the proceeding is based.
11 Section 11. Section 34-20-11 is amended to read:
12 34-20-11. Hearings and investigations -- Power of board -- Witnesses -- Procedure.
13 For the purpose of all hearings and investigations, which, in the opinion of the board, are
14 necessary and proper for the exercise of the powers vested in it by Sections 34-20-9 and 34-20-10:
15 (1) The board, or its duly authorized agents or agencies, shall at all reasonable times have
16 access to, for the purpose of examination, and the right to copy any evidence of any person being
17 investigated or proceeded against that relates to any matter under investigation or in question. Any
18 member of the board shall have power to issue subpoenas requiring the attendance and testimony
19 of witnesses and the production of any evidence that relates to any matter under investigation or
20 in question, before the board, its member, agent, or agency conducting the hearing or investigation.
21 Any member of the board, or any agent or agency designated by the board, for [such] these
22 purposes, may administer oaths and affirmations, examine witnesses, and receive evidence. [Such
23 attendance] Attendance of witnesses and the production of [such] evidence may be required from
24 any place in the state at any duly designated place of hearing.
25 (2) In case of contumacy or refusal to obey a subpoena issued to any person, any district
26 court of Utah within the jurisdiction of which the inquiry is carried on or within the jurisdiction
27 of which [said] the person guilty of contumacy or refusal to obey is found or resides or transacts
28 business upon application by the board shall have jurisdiction to issue to [such] the person an order
29 requiring [such] the person to appear before the board, its member, agent, or agency, [there] to
30 produce evidence if so ordered, or [there] to give testimony touching the matter under investigation
31 or in question; and any failure to obey [such] the order of the court may be punished by [said] the

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1 court as a contempt [thereof].
2 (3) h [ [No] A person [shall] may not be excused from attending and testifying or from
3 producing books, records, correspondence, documents, or other evidence in obedience to the
4 subpoena of the board ] h [on the ground that the testimony or evidence required of him may tend to
5 incriminate him or subject him to a penalty or forfeiture, but no individual shall be prosecuted or
6 subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing
7 concerning which he is compelled, after having claimed his privilege against self-incrimination,
8 to testify or produce evidence, except that such individual so testifying shall not be exempt from
9 prosecution and punishment for perjury committed in so testifying]. In the event a witness asserts
10 a privilege against self-incrimination, testimony and evidence from the witness may be compelled
11 pursuant to Title 77, Chapter 22b, Grants of Immunity.
12 (4) Complaints, orders, and other processes and papers of the board, its member, agent,
13 or agency, may be served either personally, by certified or registered mail, by telegraph, or by
14 leaving a copy [thereof] at the principal office or place of business of the person required to be
15 served. The verified return by the individual [so] serving the [same] documents setting forth the
16 manner of [such] the service shall be proof of the [same] service, and the return post office receipt
17 or telegram receipt [therefor] when certified or registered and mailed or telegraphed [as aforesaid]
18 shall be proof of service [of the same]. Witnesses summoned before the board, its member, agent,
19 or agency, shall be paid the same fees and mileage that are paid witnesses in the courts of the state,
20 and witnesses whose depositions are taken and the persons taking [the same] them shall [severally]
21 be entitled to the same fees [as are] paid for [like] the same services in the courts of the state.
22 (5) [The several] All departments and agencies of the state, when directed by the governor,
23 shall furnish to the board, upon its request, all records, papers, and information in their possession
24 relating to any matter before the board.
25 Section 12. Section 34-35-5 (Renumbered 07/01/97) is amended to read:
26 34-35-5 (Renumbered 07/01/97). Antidiscrimination Division -- Powers.
27 (1) The Utah Antidiscrimination Division may:
28 (a) appoint and prescribe the duties of investigators and other employees and agents that
29 it considers necessary for the enforcement of this chapter;
30 (b) adopt, publish, amend, and rescind rules, consistent with, and for the enforcement of,
31 this chapter;

lilac-January 31, 1997

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1 (c) receive, reject, investigate, and pass upon complaints alleging discrimination in
2 employment, apprenticeship programs, on-the-job training programs, and vocational schools, or
3 the existence of a discriminatory or prohibited employment practice by a person, an employer, an
4 employment agency, a labor organization, or the employees or members of an employment agency
5 or labor organization, a joint apprenticeship committee, and vocational school;
6 (d) investigate and study the existence, character, causes, and extent of discrimination in
7 employment, apprenticeship programs, on-the-job training programs, and vocational schools in
8 this state by employers, employment agencies, labor organizations, joint apprenticeship
9 committees, and vocational schools;
10 (e) formulate plans for the elimination of discrimination by educational or other means;
11 (f) hold hearings upon complaint made against a person, an employer, an employment
12 agency, a labor organization or the employees or members of an employment agency or labor
13 organization, a joint apprenticeship committee, or a vocational school;
14 (g) issue publications and reports of investigations and research that will tend to promote
15 good will among the various racial, religious, and ethnic groups of the state, and that will minimize
16 or eliminate discrimination in employment because of race, color, sex, religion, national origin,
17 age, or handicap;
18 (h) prepare and transmit to the governor, at least once each year, reports describing its
19 proceedings, investigations, hearings it has conducted and the outcome of those hearings, decisions
20 it has rendered, and the other work performed by it;
21 (i) recommend policies to the governor, and submit recommendation to employers,
22 employment agencies, and labor organizations to implement those policies;
23 (j) recommend any legislation concerning discrimination because of race, sex, color,
24 national origin, religion, age, or handicap to the governor that it considers necessary;
25 (k) within the limits of any appropriations made for its operation, cooperate with other
26 agencies or organizations, both public and private, in the planning and conducting of educational
27 programs designed to eliminate discriminatory practices prohibited under this chapter; and
28 (l) adopt an official seal.
29 (2) The division shall investigate alleged discriminatory practices involving officers or
30 employees of state government if requested to do so by the Career Service Review Board.
31 (3) (a) In any hearing held under the authority of this chapter, the division may:

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1 (i) subpoena witnesses and compel their attendance at the hearing;
2 (ii) administer oaths and take the testimony of any person under oath; and
3 (iii) compel any person to produce for examination any books, papers, or other information
4 relating to the matters raised by the complaint.
5 (b) Any of the following may conduct hearings:
6 (i) the commission;
7 (ii) any commissioner;
8 (iii) the coordinator; or
9 (iv) a hearing examiner or agent appointed by the commission.
10 (c) If a witness fails or refuses to obey a subpoena issued by the commission, the
11 commission may petition the district court to enforce the subpoena.
12 (d) [(i)] h [ No person may be excused from attending or testifying, or from producing
13 records, correspondence, documents, or other evidence in obedience to a subpoena issued by the
14 commission under the authority of this section ] h [on the ground that the evidence or the testimony
15 required may tend to incriminate him or subject him to any penalty or forfeiture]. In the event a
16 witness asserts a privilege against self-incrimination, testimony and evidence from the witness may
17 be compelled pursuant to Title 77, Chapter 22b, Grants of Immunity.
18 [(ii) No person may be prosecuted or subjected to any penalty or forfeiture for or on
19 account of any transaction, matter, or thing concerning which he shall be compelled to testify or
20 produce evidence after having claimed his privilege against self-incrimination, except that a person
21 testifying is not exempt from prosecution and punishment for perjury.]
22 Section 13. Section 35-4-502 (Renumbered 07/01/97) is amended to read:
23 35-4-502 (Renumbered 07/01/97). Administration of Employment Security Act.
24 (1) (a) The Industrial Commission of Utah shall administer this chapter.
25 (b) The commission may:
26 (i) make, amend, or rescind any rules and special orders;
27 (ii) employ persons;
28 (iii) make expenditures;
29 (iv) require reports;
30 (v) make investigations;
31 (vi) make audits of any or all funds provided for under this chapter when necessary; and

lilac-January 31, 1997

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1 (vii) take any other action it considers necessary or suitable to that end.
2 (c) (i) The commission shall create the Department of Employment Security for the
3 purpose of administering this chapter.
4 (ii) All personnel of that department, including a full-time administrator, shall be
5 employed on a nonpartisan merit basis.
6 (iii) The full-time administrator shall, with the approval of the commission, determine the
7 department's organization and methods of procedure in accordance with the provisions of this
8 chapter, and shall, under the direction of the commission, supervise the department personnel and
9 its operations.
10 (iv) The Department of Employment Security shall have an official seal which shall be
11 judicially noticed.
12 (d) No later than the first day of October of each year, the commission shall submit to the
13 governor a report covering the administration and operation of this chapter during the preceding
14 calendar year and shall make any recommendations for amendments to this chapter as the
15 commission considers proper.
16 (e) (i) The report shall include a balance sheet of the moneys in the fund in which there
17 shall be provided, if possible, a reserve against liability in future years to pay benefits in excess
18 of the then current contributions, which reserve shall be set up by the commission in accordance
19 with accepted actuarial principles on the basis of statistics of employment, business activity, and
20 other relevant factors for the longest possible period.
21 (ii) Whenever the commission believes that a change in contribution or benefit rates will
22 become necessary to protect the solvency of the fund, it shall promptly inform the governor and
23 the Legislature and make appropriate recommendations.
24 (f) Any two commissioners constitute a quorum.
25 (g) No vacancy impairs the right of the remaining commissioners to exercise all the
26 powers of the commission.
27 (2) (a) The commission may make, amend, or rescind rules in accordance with Title 63,
28 Chapter 46a, Utah Administrative Rulemaking Act.
29 (b) The commission may adopt, amend, or rescind special orders after appropriate notice
30 and opportunity to be heard. Special orders become effective ten days after notification or mailing
31 to the last-known address of the individuals or concerns affected thereby.

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1 (3) The commission shall cause to be printed for distribution to the public:
2 (a) the text of this chapter;
3 (b) the commission's rules;
4 (c) the commission's annual reports to the governor; and
5 (d) any other material the commission considers relevant and suitable and shall furnish
6 them to any person upon application.
7 (4) (a) The commission shall appoint on a nonpartisan merit basis, fix the compensation,
8 and prescribe the duties and powers of officers, accountants, attorneys, experts, and other
9 personnel as necessary in the performance of its duties. The commission shall provide for a merit
10 system covering all those persons, classify and fix the minimum standards for the personnel, and
11 formulate salary schedules for the service so classified.
12 (b) The commission shall hold or provide for holding examinations to determine the
13 technical and professional qualifications of applicants for positions in the commission, and provide
14 for annual merit ratings of employees in the commission to ascertain whether the employees are
15 maintaining the eligibility standards prescribed by the commission and those promulgated by the
16 Secretary of Labor.
17 (c) No employee may be separated or demoted so long as he meets the eligibility standards
18 of performance. When a reduction in personnel is made because of lack of funds, curtailment of
19 work, or the elimination of specific positions or classes of positions or identifiable programs, an
20 employee thus separated, reclassified, or reassigned shall be separated, reclassified, or reassigned
21 without prejudice and in accordance with an established separation formula based on merit system
22 principles and tenure of service approved by the commission and the United States Department
23 of Labor.
24 (d) The commission may delegate to any person so appointed the power and authority it
25 considers reasonable and proper for the effective administration of this chapter and may bond any
26 person handling moneys or signing checks under this authority.
27 (e) The commission may provide for the maintenance of the merit system required under
28 this section in cooperation and conjunction with any merit system applicable to any state agency
29 or agencies which meets the standards of the commission and those promulgated by the Secretary
30 of Labor.
31 (f) The commission may, when permissible under federal and state law, make

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1 arrangements that will permit individuals employed under this chapter to voluntarily elect
2 coverage under the United States Civil Service Retirement System with respect to past as well as
3 future services.
4 (5) (a) The commission shall appoint a state advisory council composed of:
5 (i) not less than five employer representatives chosen from individuals recommended by
6 employers, associations, or groups;
7 (ii) not less than five employee representatives chosen from individuals recommended by
8 employees, associations, or groups; and
9 (iii) five public representatives chosen at large.
10 (b) The employee representatives shall include both union and nonunion employees who
11 fairly represent the percentage in the labor force of the state.
12 (c) Employers and employees shall consider nominating members of groups who
13 historically may have been excluded from the council, such as women, minorities, and individuals
14 with disabilities.
15 (d) (i) Except as required by Subsection (5)(d)(ii), as terms of current council members
16 expire, the commission shall appoint each new member or reappointed member to a four-year
17 term.
18 (ii) Notwithstanding the requirements of Subsection (5)(d)(i), the commission shall, at the
19 time of appointment or reappointment, adjust the length of terms to ensure that the terms of council
20 members are staggered so that approximately half of the council is appointed every two years.
21 (e) When a vacancy occurs in the membership for any reason, the replacement shall be
22 appointed for the unexpired term.
23 (f) The commission shall terminate the term of any council member who ceases to be
24 representative as designated by his original appointment.
25 (g) The commission may appoint local advisory councils similar in composition to the
26 state advisory council.
27 (h) The state and local advisory councils shall advise the commission and the Legislature
28 in formulating policies and discussing problems related to the administration of this chapter and
29 in assuring impartiality and freedom from political influence in the solution of those problems.
30 (i) (i) Members shall receive no compensation or benefits for their services, but may
31 receive per diem and expenses incurred in the performance of the member's official duties at the

- 18 -

1 rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
2 (ii) Members may decline to receive per diem and expenses for their service.
3 (6) (a) The commission, with the advice and aid of its advisory councils, shall take all
4 appropriate steps to:
5 (i) reduce and prevent unemployment;
6 (ii) encourage and assist in the adoption of practical methods of vocational training,
7 retraining, and vocational guidance;
8 (iii) investigate, recommend, advise, and assist in the establishment and operation by the
9 state of reserves for public works to be used in times of business depression and unemployment;
10 (iv) promote the creation and development of job opportunities and the reemployment of
11 unemployed workers throughout the state in every way that may be feasible;
12 (v) plan, coordinate, organize, or direct economic development programs as are necessary
13 to maintain or create job opportunities;
14 (vi) cooperate with local communities, industries, and organizations in encouraging and
15 promoting the full development of the state's mineral, water, and other natural resources;
16 (vii) appraise the agricultural and industrial potential of the state; and
17 (viii) carry on activities and organize, coordinate, and publish the results of investigations
18 and research studies.
19 (b) To accomplish these purposes, the commission may enter into agreements with
20 governmental or other agencies.
21 (7) In the discharge of the duties imposed by this chapter, the administrative law judge or
22 duly authorized representative or member of the commission or the board of review, as designated
23 by commission rule, may administer oaths and affirmations, take depositions, certify to official
24 acts, and issue subpoenas to compel the attendance of witnesses and the production of books,
25 papers, correspondence, memoranda, and other records necessary as evidence in connection with
26 a disputed matter or the administration of this chapter.
27 (8) (a) In case of contumacy by or refusal to obey a subpoena issued to any person, any
28 court of this state within the jurisdiction of which the inquiry is carried on or within the
29 jurisdiction of which the person guilty of contumacy or refusal to obey is found or resides or
30 transacts business, upon application by an administrative law judge or the board of review or the
31 commission or its duly authorized representative, shall have jurisdiction to issue to that person an

- 19 -

1 order requiring the person to appear before a commissioner, an administrative law judge, the board
2 of review, or the commission or its duly authorized representative to produce evidence, if so
3 ordered, or give testimony regarding the matter under investigation or in question. Any failure to
4 obey that order of the court may be punished by the court as contempt.
5 (b) Any person who, without just cause, fails or refuses to attend and testify or to answer
6 any lawful inquiry or to produce books, papers, correspondence, memoranda, and other records,
7 if it is in his power to do so, in obedience to a subpoena of an administrative law judge, or the
8 board of review, or the commission shall be punished by a fine of not less than $20 nor more than
9 $200 or by imprisonment for not longer than 60 days or by both fine and imprisonment. Each day
10 the violation continues is a separate offense.
11 (9) [(a) No person may be excused from attending and testifying or from producing books,
12 papers, correspondence, memoranda, and other records before the commission or its
13 representatives or in obedience to the subpoena of the commission, any of its members, or any
14 duly authorized representative of the commission in any cause or proceeding before the
15 commission or its representatives, on the ground that the testimony or evidence, documentary or
16 otherwise, required of him may tend to incriminate him or subject him to a penalty or forfeiture.]
17 In the event a witness asserts a privilege against self-incrimination, testimony and evidence from
18 the witness may be compelled pursuant to Title 77, Chapter 22b, Grants of Immunity.
19 [(b) No individual may be prosecuted or subjected to any penalty or forfeiture for or on
20 account of any transaction, matter, or thing concerning which he is compelled, after having
21 claimed his privilege against self-incrimination, to testify or produce evidence, documentary or
22 otherwise, except that the individual testifying is not exempt from prosecution and punishment for
23 perjury committed while testifying.]
24 (10) (a) In the administration of this chapter, the commission shall cooperate with the
25 United States Department of Labor to the fullest extent consistent with the provisions of this
26 chapter and shall take action, through the adoption of appropriate rules and administrative methods
27 and standards, as necessary to secure to this state and its citizens all advantages available under
28 the provisions of the Social Security Act that relate to unemployment compensation, the Federal
29 Unemployment Tax Act, the Wagner-Peyser Act, and the Federal-State Extended Unemployment
30 Compensation Act of 1970.
31 (b) In the administration of Section 35-4-402, which is enacted to conform with the

- 20 -

1 requirements of the Federal-State Extended Unemployment Compensation Act of 1970, 26 U.S.C.
2 3304, the commission shall take any action necessary to ensure that the section is interpreted and
3 applied to meet the requirements of the federal act, as interpreted by the United States Department
4 of Labor and to secure to this state the full reimbursement of the federal share of extended and
5 regular benefits paid under this chapter that are reimbursable under the federal act.
6 Section 14. Section 35A-4-502 (Effective 07/01/97) is amended to read:
7 35A-4-502 (Effective 07/01/97). Administration of Employment Security Act.
8 (1) (a) The department shall administer this chapter through the division.
9 (b) The department may make, amend, or rescind any rules and special orders necessary
10 for the administration of this chapter.
11 (c) The division may:
12 (i) employ persons;
13 (ii) make expenditures;
14 (iii) require reports;
15 (iv) make investigations;
16 (v) make audits of any or all funds provided for under this chapter when necessary; and
17 (vi) take any other action it considers necessary or suitable to that end.
18 (d) (i) The department shall create the division pursuant to Section 35A-1-202 for the
19 purpose of administering this chapter.
20 (ii) All personnel of that division, including a full-time administrator, shall be employed
21 on a nonpartisan merit basis.
22 (iii) The division director as the full-time administrator shall, with the approval of the
23 department, determine the division's organization and methods of procedure in accordance with
24 this chapter, and shall, under the direction of the department, supervise the department personnel
25 and its operations.
26 (iv) For purposes of this chapter, the department shall have an official seal which shall be
27 judicially noticed.
28 (e) No later than the first day of October of each year, the department shall submit to the
29 governor a report covering the administration and operation of this chapter during the preceding
30 calendar year and shall make any recommendations for amendments to this chapter as the
31 department considers proper.

- 21 -

1 (f) (i) The report shall include a balance sheet of the moneys in the fund in which there
2 shall be provided, if possible, a reserve against liability in future years to pay benefits in excess
3 of the then current contributions, which reserve shall be set up by the division in accordance with
4 accepted actuarial principles on the basis of statistics of employment, business activity, and other
5 relevant factors for the longest possible period.
6 (ii) Whenever the department believes that a change in contribution or benefit rates will
7 become necessary to protect the solvency of the fund, it shall promptly inform the governor and
8 the Legislature and make appropriate recommendations.
9 (2) (a) The department may make, amend, or rescind rules in accordance with Title 63,
10 Chapter 46a, Utah Administrative Rulemaking Act.
11 (b) The director of the division or the director's designee may adopt, amend, or rescind
12 special orders after appropriate notice and opportunity to be heard. Special orders become
13 effective ten days after notification or mailing to the last-known address of the individuals or
14 concerns affected thereby.
15 (3) The director of the division or the director's designee shall cause to be printed for
16 distribution to the public:
17 (a) the text of this chapter;
18 (b) the department's rules pertaining to this chapter;
19 (c) the department's annual reports to the governor required by Subsection (1)(e); and
20 (d) any other material the director of the division or the director's designee considers
21 relevant and suitable and shall furnish them to any person upon application.
22 (4) (a) The division shall appoint on a nonpartisan merit basis, fix the compensation, and
23 prescribe the duties and powers of officers, accountants, attorneys, experts, and other personnel
24 as necessary in the performance of its duties, in accordance with the requirements of Title 67,
25 Chapter 19, and the rules of the Department of Human Resource Management.
26 (b) The division shall hold or provide for holding examinations to determine the technical
27 and professional qualifications of applicants for positions in the division, and provide for annual
28 merit ratings of employees in the division to ascertain whether the employees are maintaining the
29 eligibility standards prescribed by the department and those promulgated by the Secretary of
30 Labor.
31 (c) No employee may be separated or demoted so long as he meets the eligibility standards

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1 of performance, as set forth in Title 67, Chapter 19, Utah State Personnel Management Act, and
2 the rules of the Department of Human Resource Management.
3 (d) The division may delegate to any person so appointed the power and authority it
4 considers reasonable and proper for the effective administration of this chapter and may bond any
5 person handling moneys or signing checks under this authority.
6 (e) The division may provide for the maintenance of the merit system required under this
7 section in cooperation and conjunction with any merit system applicable to any state agency or
8 agencies which meets the standards of the department and those promulgated by the Secretary of
9 Labor.
10 (f) The department may, when permissible under federal and state law, make arrangements
11 that will permit individuals employed under this chapter to voluntarily elect coverage under the
12 United States Civil Service Retirement System with respect to past as well as future services.
13 (g) An employee of the division who no longer may participate in a federal or other
14 retirement system as a result of a change in status or appropriation under this chapter may purchase
15 credit in a retirement system created under Title 49, Chapter 3, Public Employees'
16 Noncontributory Retirement Act, with the employee's assets from the federal or other retirement
17 system in which the employee may no longer participate.
18 (5) There is created an Employment Security Advisory Council composed of the members
19 listed in Subsections (5)(a) and (b).
20 (a) The executive director shall appoint:
21 (i) not less than five employer representatives chosen from individuals recommended by
22 employers, associations, or groups;
23 (ii) not less than five employee representatives chosen from individuals recommended by
24 employees, associations, or groups; and
25 (iii) five public representatives chosen at large.
26 (b) (i) The executive director or the executive director's designee shall serve as a nonvoting
27 member of the council.
28 (ii) Each member of the Workforce Appeals Board shall serve as nonvoting, ex officio
29 members of the council.
30 (c) The employee representatives shall include both union and nonunion employees who
31 fairly represent the percentage in the labor force of the state.

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1 (d) Employers and employees shall consider nominating members of groups who
2 historically may have been excluded from the council, such as women, minorities, and individuals
3 with disabilities.
4 (e) (i) Except as required by Subsection (5)(e)(ii), as terms of current council members
5 expire, the executive director shall appoint each new member or reappointed member to a
6 four-year term.
7 (ii) Notwithstanding the requirements of Subsection (5)(e)(i), the executive director shall,
8 at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of
9 council members are staggered so that approximately half of the council is appointed every two
10 years.
11 (f) When a vacancy occurs in the membership for any reason, the replacement shall be
12 appointed for the unexpired term.
13 (g) The executive director shall terminate the term of any council member who ceases to
14 be representative as designated by his original appointment.
15 (h) The council shall advise the department, the division, and the Legislature in
16 formulating policies and discussing problems related to the administration of this chapter and in
17 assuring impartiality and freedom from political influence in the solution of those problems.
18 (i) The executive director or the executive director's designee shall serve as chair of the
19 council and call the necessary meetings.
20 (j) (i) Members shall receive no compensation or benefits for their services, but may
21 receive per diem and expenses incurred in the performance of the member's official duties at the
22 rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107.
23 (ii) Members may decline to receive per diem and expenses for their service.
24 (k) The department shall provide staff support to the council.
25 (6) (a) The division, with the advice and aid of its advisory council shall take all
26 appropriate steps to:
27 (i) reduce and prevent unemployment;
28 (ii) encourage and assist in the adoption of practical methods of vocational training,
29 retraining, and vocational guidance;
30 (iii) investigate, recommend, advise, and assist in the establishment and operation by the
31 state of reserves for public works to be used in times of business depression and unemployment;

- 24 -

1 (iv) promote the creation and development of job opportunities and the reemployment of
2 unemployed workers throughout the state in every way that may be feasible;
3 (v) plan, coordinate, organize, or direct economic development programs as are necessary
4 to maintain or create job opportunities;
5 (vi) cooperate with local communities, industries, and organizations in encouraging and
6 promoting the full development of the state's mineral, water, and other natural resources;
7 (vii) appraise the agricultural and industrial potential of the state; and
8 (viii) carry on activities and organize, coordinate, and publish the results of investigations
9 and research studies.
10 (b) To accomplish these purposes, the division may enter into agreements with
11 governmental or other agencies.
12 (7) In the discharge of the duties imposed by this chapter, the administrative law judge or
13 the division director or the director's designee as designated by department rule, may administer
14 oaths and affirmations, take depositions, certify to official acts, and issue subpoenas to compel the
15 attendance of witnesses and the production of books, papers, correspondence, memoranda, and
16 other records necessary as evidence in connection with a disputed matter or the administration of
17 this chapter.
18 (8) (a) In case of contumacy by or refusal to obey a subpoena issued to any person, any
19 court of this state within the jurisdiction of which the inquiry is carried on or within the
20 jurisdiction of which the person guilty of contumacy or refusal to obey is found or resides or
21 transacts business, upon application by an administrative law judge, the Workforce Appeals Board,
22 or the director of the division or the director's designee shall have jurisdiction to issue to that
23 person an order requiring the person to appear before the director or the director's designee, an
24 administrative law judge, the Workforce Appeals Board, or the director or the director's designee
25 to produce evidence, if so ordered, or give testimony regarding the matter under investigation or
26 in question. Any failure to obey that order of the court may be punished by the court as contempt.
27 (b) Any person who, without just cause, fails or refuses to attend and testify or to answer
28 any lawful inquiry or to produce books, papers, correspondence, memoranda, and other records,
29 if it is in his power to do so, in obedience to a subpoena of an administrative law judge, or the
30 Workforce Appeals Board, or the director of the division or the director's designee shall be
31 punished by a fine of not less than $20 nor more than $200 or by imprisonment for not longer than

- 25 -

1 60 days or by both fine and imprisonment. Each day the violation continues is a separate offense.
2 (9) [(a) No person may be excused from attending and testifying or from producing books,
3 papers, correspondence, memoranda, and other records before the division or in obedience to the
4 subpoena of the, or any division in any cause or proceeding before the division, on the ground that
5 the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him
6 or subject him to a penalty or forfeiture.] In the event a witness asserts a privilege against
7 self-incrimination, testimony and evidence from the witness may be compelled pursuant to Title
8 77, Chapter 22b, Grants of Immunity.
9 [(b) No individual may be prosecuted or subjected to any penalty or forfeiture for or on
10 account of any transaction, matter, or thing concerning which he is compelled, after having
11 claimed his privilege against self-incrimination, to testify or produce evidence, documentary or
12 otherwise, except that the individual testifying is not exempt from prosecution and punishment for
13 perjury committed while testifying.]
14 (10) (a) In the administration of this chapter, the division shall cooperate with the United
15 States Department of Labor to the fullest extent consistent with the provisions of this chapter and
16 shall take action, through the adoption of appropriate rules by the department and administrative
17 methods and standards, as necessary to secure to this state and its citizens all advantages available
18 under the provisions of the Social Security Act that relate to unemployment compensation, the
19 Federal Unemployment Tax Act, the Wagner-Peyser Act, and the Federal-State Extended
20 Unemployment Compensation Act of 1970.
21 (b) In the administration of Section 35A-4-402, which is enacted to conform with the
22 requirements of the Federal-State Extended Unemployment Compensation Act of 1970, 26 U.S.C.
23 3304, the division shall take any action necessary to ensure that the section is interpreted and
24 applied to meet the requirements of the federal act, as interpreted by the United States Department
25 of Labor and to secure to this state the full reimbursement of the federal share of extended and
26 regular benefits paid under this chapter that are reimbursable under the federal act.
27 Section 15. Section 35A-5-104 (Effective 07/01/97) is amended to read:
28 35A-5-104 (Effective 07/01/97). Powers.
29 (1) The department may adopt, publish, amend, and rescind rules, consistent with, and for
30 the enforcement of this chapter.
31 (2) The division may:

- 26 -

1 (a) appoint and prescribe the duties of investigators and other employees and agents that
2 it considers necessary for the enforcement of this chapter;
3 (b) receive, reject, investigate, and pass upon complaints alleging discrimination in
4 employment, apprenticeship programs, on-the-job training programs, and vocational schools, or
5 the existence of a discriminatory or prohibited employment practice by a person, an employer, an
6 employment agency, a labor organization, or the employees or members of an employment agency
7 or labor organization, a joint apprenticeship committee, and vocational school;
8 (c) investigate and study the existence, character, causes, and extent of discrimination in
9 employment, apprenticeship programs, on-the-job training programs, and vocational schools in
10 this state by employers, employment agencies, labor organizations, joint apprenticeship
11 committees, and vocational schools;
12 (d) formulate plans for the elimination of discrimination by educational or other means;
13 (e) hold hearings upon complaint made against a person, an employer, an employment
14 agency, a labor organization or the employees or members of an employment agency or labor
15 organization, a joint apprenticeship committee, or a vocational school;
16 (f) issue publications and reports of investigations and research that will tend to promote
17 good will among the various racial, religious, and ethnic groups of the state, and that will minimize
18 or eliminate discrimination in employment because of race, color, sex, religion, national origin,
19 age, or handicap;
20 (g) prepare and transmit to the governor, at least once each year, reports describing its
21 proceedings, investigations, hearings it has conducted and the outcome of those hearings, decisions
22 it has rendered, and the other work performed by it;
23 (h) recommend policies to the governor, and submit recommendation to employers,
24 employment agencies, and labor organizations to implement those policies;
25 (i) recommend any legislation concerning discrimination because of race, sex, color,
26 national origin, religion, age, or handicap to the governor that it considers necessary; and
27 (j) within the limits of any appropriations made for its operation, cooperate with other
28 agencies or organizations, both public and private, in the planning and conducting of educational
29 programs designed to eliminate discriminatory practices prohibited under this chapter.
30 (3) The division shall investigate alleged discriminatory practices involving officers or
31 employees of state government if requested to do so by the Career Service Review Board.

- 27 -

1 (4) (a) In any hearing held under the authority of this chapter, the division may:
2 (i) subpoena witnesses and compel their attendance at the hearing;
3 (ii) administer oaths and take the testimony of any person under oath; and
4 (iii) compel any person to produce for examination any books, papers, or other information
5 relating to the matters raised by the complaint.
6 (b) The division director or a hearing examiner appointed by the division director may
7 conduct hearings.
8 (c) If a witness fails or refuses to obey a subpoena issued by the division, the division may
9 petition the district court to enforce the subpoena.
10 (d) [(i)] h [ No person may be excused from attending or testifying, or from producing
11 records, correspondence, documents, or other evidence in obedience to a subpoena issued by the
12 division under the authority of this section ] h [on the ground that the evidence or the testimony
13 required may tend to incriminate him or subject him to any penalty or forfeiture]. In the event a
14 witness asserts a privilege against self-incrimination, testimony and evidence from the witness may
15 be compelled pursuant to Title 77, Chapter 22b, Grants of Immunity.
16 [(ii) No person may be prosecuted or subjected to any penalty or forfeiture for or on
17 account of any transaction, matter, or thing concerning which he shall be compelled to testify or
18 produce evidence after having claimed his privilege against self-incrimination, except that a person
19 testifying is not exempt from prosecution and punishment for perjury.]
20 Section 16. Section 76-7-101 is amended to read:
21 76-7-101. Bigamy -- Defense -- Testimony.
22 (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the
23 other person has a husband or wife, [he] the person purports to marry another person or cohabits
24 with another person.
25 (2) Bigamy is a felony of the third degree.
26 (3) It shall be a defense to bigamy that the accused reasonably believed he and the other
27 person were legally eligible to remarry.
28 [(4) Any person, except the defendant, may be compelled to testify in a prosecution under
29 this section; provided, however, that the evidence given in the prosecution shall not be used against
30 him in any proceeding, civil or criminal, except for perjury in giving the testimony. A person so
31 testifying shall not thereafter be liable to indictment, prosecution, or punishment for the offense

lilac-January 31, 1997

- 28 -

1 concerning which such testimony was given.]
2 Section 17. Section 76-8-806 is amended to read:
3 76-8-806. Witnesses required to testify and produce evidence -- Facts kept secret
4 until complaint filed.
5 [No person shall be excused from attending, testifying, producing any books, papers, or
6 other documents before any court, magistrate, referee, or grand jury upon any investigation,
7 proceeding, or trial, for or relating to or concerned with a violation of any section of this part or
8 attempt to commit any violation, upon the ground or for the reason that the testimony or evidence,
9 documentary or otherwise, required of him by the state may tend to convict him of a crime or
10 subject him to penalty or forfeiture; but no person shall be prosecuted or subjected to any penalty
11 or forfeiture for or on account of any transaction, matter or thing concerning which he may so
12 testify or produce evidence, documentary or otherwise, and no testimony so given or produced
13 shall be received against him, upon any criminal investigation, proceeding or trial, except upon
14 a prosecution for perjury or contempt of court based upon the giving or producing of the
15 testimony. No] A person [shall] may not make public any evidence of fact or the name of the
16 person accused of violating the provisions of Sections 76-8-802, 76-8-803, 76-8-804, and 76-8-805
17 prior to the filing of a formal complaint by the prosecuting attorney or committing magistrate
18 charged with the performance of that duty.
19 Section 18. Section 77-22-1 is amended to read:
20 77-22-1. Declaration of necessity.
21 It is declared, as a matter of legislative determination, that it is necessary to grant subpoena
22 powers in aid of criminal investigations and to provide a method of keeping information gained
23 from investigations secret both to protect the innocent and to prevent criminal suspects from
24 having access to information prior to prosecution [and to clarify the power of the attorney general
25 and county attorneys to grant immunity from prosecution to witnesses whose testimony is essential
26 to the proper conduct of a criminal investigation or prosecution].
27 Section 19. Section 77-22b-1 is enacted to read:
28 CHAPTER 22b. GRANTS OF IMMUNITY
29 77-22b-1. Immunity granted to witness of false testimony.
30 (1) (a) A witness who refuses, or is likely to refuse, on the basis of his privilege against
31 self-incrimination to testify or provide evidence or information in a criminal investigation,

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1 including a grand jury investigation or prosecution of a criminal case, or in aid of an investigation
2 or inquiry being conducted by a government agency or commission, or by either house of the
3 Legislature, a joint committee of the two houses, or a committee or subcommittee of either house
4 may be compelled to testify or provide evidence or information by any of the following, after
5 being granted use immunity with regards to the compelled testimony or production of evidence
6 or information:
7 (i) the attorney general or any assistant attorney general authorized by the attorney general;
8 (ii) a district attorney or any deputy district attorney authorized by a district attorney;
9 (iii) in a county not within a prosecution district, a county attorney or any deputy county
10 attorney authorized by a county attorney;
11 (iv) a special counsel for the grand jury; h [ or ] h
12 (v) a prosecutor pro tempore appointed under the Utah Constitution, Article VIII,
12a Sec. 16 h ; OR
12b (vi) LEGISLATIVE GENERAL COUNSEL IN THE CASE OF TESTIMONY PURSUANT TO
12c SUBPOENA BEFORE THE LEGISLATURE OR ANY COMMITTEE OF THE LEGISLATURE HAVING
12d SUBPOENA POWERS h .
13 (b) If any prosecutor authorized under Subsection (1)(a) intends to compel a witness to
14 testify or provide evidence or information under a grant of use immunity, the prosecutor shall
15 notify the witness by written notice. The notice shall include the information contained in
16 Subsection (2) and advise the witness that he may not refuse to testify or provide evidence or
17 information on the basis of his privilege against self-incrimination. The notice need not be in
18 writing when the grant of use immunity occurs on the record in the course of a preliminary
19 hearing, grand jury proceeding, or trial.
20 (2) Testimony, evidence, or information compelled under Subsection (1) may not be used
21 against the witness in any criminal case, nor any information directly or indirectly derived from
22 this testimony, evidence, or information, unless the testimony, evidence, or information is
23 volunteered by the witness or is otherwise not responsive to a question. Immunity does not extend
24 to prosecution or punishment for perjury or to giving a false statement in connection with any
25 testimony.
26 (3) If a witness is granted immunity under Subsection (1), and is later prosecuted for an
27 offense that was part of the transaction or events about which the witness was compelled to testify
28 or produce evidence or information under a grant of immunity, the burden is on the prosecution
29 to show by a preponderance of the evidence that no use or derivative use was made of the
30 compelled testimony, evidence, or information in the subsequent case against the witness, and to
31 show that any proffered evidence was derived from sources totally independent of the compelled

lilac-January 31, 1997

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1 testimony, evidence, or information. The remedy for not establishing that any proffered evidence
2 was derived from sources totally independent of the compelled testimony, evidence, or information
3 is suppression of that evidence only.
4 (4) Nothing in this section prohibits or limits prosecutorial authority granted in Section
5 77-22-4.5.
6 (5) A county attorney within a prosecution district shall have the authority to grant
7 immunity only as provided in Section 17-18-1.5.
8 Section 20. Section 77-22b-2 is enacted to read:
9 77-22b-2. Refusal of witness to testify or produce evidence or information.
10 (1) A witness who has been served with notice under Section 77-22b-1 and refuses to
11 comply with the notice may be required to show cause before the district court why the witness
12 should not be compelled to testify or otherwise produce evidence or information.
13 (2) If, after notice and hearing, the court finds that the witness should be compelled to
14 testify or otherwise produce evidence or information, it shall order the witness to comply. If the
15 witness then refuses to comply, the witness may be held in contempt of court.
16 Section 21. Repealer.
17 This act repeals:
18 Section 20A-1-702, Offenders as witnesses -- Privilege.
19 Section 58-37-16, Powers to order testimony of witnesses or production of evidence
20 -- Immunity of witness compelled to testify.
21 Section 62A-11-318, Attorney general -- Power to grant immunity -- Privileged
22 testimony -- Refusal to answer questions or produce evidence -- Procedures -- Penalties.
23 Section 77-22-3, Immunity granted to witness -- False testimony -- Refusal of witness
24 to testify or produce evidence.
25 Section 22. Effective date.
26 The amendments to Sections 35A-4-502 and 35A-5-104 in this act take effect on July 1,
27 1997.


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Legislative Review Note
as of 1-15-97 4:05 PM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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