S.B. 63

1

ATTORNEY GENERAL AMENDMENTS
2 2002 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Bill Wright
5 This act modifies provisions governing the attorney general and attorneys employed by the
6 attorney general's office. This act eliminates career service status as an option for attorneys
7 in the attorney general's office after July 1, 2002, provides for a classification plan and pay
8 plan for noncareer service status attorneys, and authorizes existing career service status
9 attorneys to voluntarily convert to noncareer service status. This act renumbers and amends
10 sections relating to the attorney general and makes technical corrections.
11 This act affects sections of Utah Code Annotated 1953 as follows:
12 AMENDS:
13 31A-2-108, as last amended by Chapter 344, Laws of Utah 1995
14 34A-5-106, as last amended by Chapter 161, Laws of Utah 1999
15 62A-4a-202.6, as last amended by Chapter 58, Laws of Utah 2001
16 63-30-35, as last amended by Chapter 97, Laws of Utah 1990
17 ENACTS:
18 67-5-204, Utah Code Annotated 1953
19 RENUMBERS AND AMENDS:
20 67-5-101, (Renumbered from 67-5-1, as last amended by Chapters 212 and 316, Laws of
21 Utah 2000)
22 67-5-102, (Renumbered from 67-5-2, Utah Code Annotated 1953)
23 67-5-103, (Renumbered from 67-5-3, as last amended by Chapter 76, Laws of Utah 1982)
24 67-5-104, (Renumbered from 67-5-4, as enacted by Chapter 186, Laws of Utah 1973)
25 67-5-105, (Renumbered from 67-5-5, as last amended by Chapter 76, Laws of Utah 1982)
26 67-5-106, (Renumbered from 67-5-15, as last amended by Chapter 4, Laws of Utah 1992,
27 Third Special Session)

28 67-5-107, (Renumbered from 67-5-16, as enacted by Chapter 274, Laws of Utah 1998)
29 67-5-108, (Renumbered from 67-5-17, as enacted by Chapter 212, Laws of Utah 2000)
30 67-5-201, (Renumbered from 67-5-6, as enacted by Chapter 185, Laws of Utah 1973)
31 67-5-202, (Renumbered from 67-5-7, as last amended by Chapter 122, Laws of Utah 1988)
32 67-5-203, (Renumbered from 67-5-8, as last amended by Chapter 203, Laws of Utah 1985)
33 67-5-205, (Renumbered from 67-5-9, as last amended by Chapter 122, Laws of Utah 1988)
34 67-5-206, (Renumbered from 67-5-12, as last amended by Chapter 191, Laws of Utah
35 1989)
36 67-5-207, (Renumbered from 67-5-13, as last amended by Chapter 203, Laws of Utah
37 1985)
38 67-5-301, (Renumbered from 67-5-18, as last amended by Chapter 315, Laws of Utah
39 2001)
40 REPEALS:
41 67-5-11, as last amended by Chapter 92, Laws of Utah 1987
42 Be it enacted by the Legislature of the state of Utah:
43 Section 1. Section 31A-2-108 is amended to read:
44 31A-2-108. Legal services.
45 (1) Except as provided in Subsection (4), the commissioner shall call upon the attorney
46 general for the legal counsel and assistance necessary to enforce the provisions of this title. Upon
47 the commissioner's request, or upon the attorney general's own initiative, the attorney general may
48 hire special legal counsel under Section [ 67-5-5 ] 67-5-105 to represent the Insurance Department.
49 (2) Upon the commissioner's request, or upon the commissioner's own initiative, the
50 attorney general may aid in any investigation, hearing, or other procedure under this title and may
51 institute, prosecute, and defend proceedings relating to the enforcement or interpretation of this
52 title, including any proceeding to which the state, or the commissioner or any employee of the
53 department in an official capacity, is a party or is interested.
54 (3) The commissioner may refer such evidence as is available concerning violations of this
55 title or of any rule or order under this title to the proper county attorney or district attorney, who
56 may, with or without this reference, institute the appropriate criminal proceedings.
57 (4) For proceedings authorized by Title 31A, Chapter 27, Insurers Rehabilitation and
58 Liquidation, the commissioner may employ on a contract basis legal counsel other than the

59 attorney general, with the fees, costs, and expenses of the counsel and the attorney general being
60 a class one administrative expense under Section 31A-27-335 .
61 Section 2. Section 34A-5-106 is amended to read:
62 34A-5-106. Discriminatory or unfair employment practices -- Permitted practices.
63 (1) It is a discriminatory or prohibited employment practice to take any action described
64 in Subsections (1)(a) through (f).
65 (a) (i) An employer may not refuse to hire, promote, discharge, demote, or terminate any
66 person, or to retaliate against, harass, or discriminate in matters of compensation or in terms,
67 privileges, and conditions of employment against any person otherwise qualified, because of:
68 (A) race;
69 (B) color;
70 (C) sex;
71 (D) pregnancy, childbirth, or pregnancy-related conditions;
72 (E) age, if the individual is 40 years of age or older;
73 (F) religion;
74 (G) national origin; or
75 (H) disability.
76 (ii) An applicant or candidate for any job or position may not be considered "otherwise
77 qualified," unless the applicant or candidate possesses the education, training, ability, moral
78 character, integrity, disposition to work, adherence to reasonable rules and regulations, and other
79 job related qualifications required by an employer for any particular job, job classification, or
80 position to be filled or created.
81 (iii) (A) As used in this chapter, "to discriminate in matters of compensation" means the
82 payment of differing wages or salaries to employees having substantially equal experience,
83 responsibilities, and skill for the particular job.
84 (B) Notwithstanding Subsection (1)(a)(iii)(A):
85 (I) nothing in this chapter prevents increases in pay as a result of longevity with the
86 employer, if the salary increases are uniformly applied and available to all employees on a
87 substantially proportional basis; and
88 (II) nothing in this section prohibits an employer and employee from agreeing to a rate of
89 pay or work schedule designed to protect the employee from loss of Social Security payment or

90 benefits if the employee is eligible for those payments.
91 (b) An employment agency may not:
92 (i) refuse to list and properly classify for employment, or refuse to refer an individual for
93 employment, in a known available job for which the individual is otherwise qualified, because of:
94 (A) race;
95 (B) color;
96 (C) sex;
97 (D) pregnancy, childbirth, or pregnancy-related conditions;
98 (E) religion;
99 (F) national origin;
100 (G) age, if the individual is 40 years of age or older; or
101 (H) disability;
102 (ii) comply with a request from an employer for referral of applicants for employment if
103 the request indicates either directly or indirectly that the employer discriminates in employment
104 on account of:
105 (A) race;
106 (B) color;
107 (C) sex;
108 (D) pregnancy, childbirth, or pregnancy-related conditions;
109 (E) religion;
110 (F) national origin;
111 (G) age, if the individual is 40 years of age or older; or
112 (H) disability.
113 (c) A labor organization may not exclude any individual otherwise qualified from full
114 membership rights in the labor organization, expel the individual from membership in the labor
115 organization, or otherwise discriminate against or harass any of its members in full employment
116 of work opportunity, or representation, because of:
117 (i) race;
118 (ii) sex;
119 (iii) pregnancy, childbirth, or pregnancy-related conditions;
120 (iv) religion;

121 (v) national origin;
122 (vi) age, if the individual is 40 years of age or older; or
123 (vii) disability.
124 (d) Unless based upon a bona fide occupational qualification, or required by, and given to,
125 an agency of government for security reasons, an employer, employment agency, or labor
126 organization may not print, or circulate, or cause to be printed or circulated, any statement,
127 advertisement, or publication, use any form of application for employment or membership, or
128 make any inquiry in connection with prospective employment or membership that expresses, either
129 directly or indirectly:
130 (i) any limitation, specification, or discrimination as to:
131 (A) race;
132 (B) color;
133 (C) religion;
134 (D) sex;
135 (E) pregnancy, childbirth, or pregnancy-related conditions;
136 (F) national origin;
137 (G) age, if the individual is 40 years of age or older; or
138 (H) disability;
139 (ii) the intent to make any limitation, specification, or discrimination described in
140 Subsection (1)(d)(i).
141 (e) A person, whether or not an employer, an employment agency, a labor organization, or
142 the employees or members thereof, may not:
143 (i) aid, incite, compel, or coerce the doing of an act defined in this section to be a
144 discriminatory or prohibited employment practice;
145 (ii) obstruct or prevent any person from complying with this chapter, or any order issued
146 under it; or
147 (iii) attempt, either directly or indirectly, to commit any act prohibited in this section.
148 (f) An employer, labor organization, joint apprenticeship committee, or vocational school,
149 providing, coordinating, or controlling apprenticeship programs, or providing, coordinating, or
150 controlling on-the-job training programs, instruction, training, or retraining programs may not:
151 (i) deny to, or withhold from, any qualified person, the right to be admitted to, or

152 participate in any apprenticeship training program, on-the-job training program, or other
153 occupational instruction, training or retraining program because of:
154 (A) race;
155 (B) color;
156 (C) sex;
157 (D) pregnancy, childbirth, or pregnancy-related conditions;
158 (E) religion;
159 (F) national origin;
160 (G) age, if the individual is 40 years of age or older; or
161 (H) disability;
162 (ii) discriminate against or harass any qualified person in that person's pursuit of such
163 programs, or to discriminate against such a person in the terms, conditions, or privileges of such
164 programs, because of:
165 (A) race;
166 (B) color;
167 (C) sex;
168 (D) pregnancy, childbirth, or pregnancy-related conditions;
169 (E) religion;
170 (F) national origin;
171 (G) age, if the individual is 40 years of age or older; or
172 (H) disability; or
173 (iii) print, publish, or cause to be printed or published, any notice or advertisement relating
174 to employment by the employer, or membership in or any classification or referral for employment
175 by a labor organization, or relating to any classification or referral for employment by an
176 employment agency, indicating any preference, limitation, specification, or discrimination based
177 on race, color, sex, pregnancy, childbirth, or pregnancy-related conditions, religion, national origin,
178 age, if the individual is 40 years of age or older, or disability except that a notice or advertisement
179 may indicate a preference, limitation, specification, or discrimination based on race, color, religion,
180 sex, pregnancy, childbirth, or pregnancy-related conditions, age, national origin, or disability when
181 religion, race, color, sex, age, national origin, or disability is a bona fide occupational qualification
182 for employment.

183 (2) Nothing contained in Subsections (1)(a) through (1)(f) shall be construed to prevent:
184 (a) the termination of employment of an individual who is physically, mentally, or
185 emotionally unable to perform the duties required by that individual's employment;
186 (b) the variance of insurance premiums, of coverage on account of age; or
187 (c) a restriction on the activities of individuals licensed by the liquor authority with respect
188 to persons under 21 years of age.
189 (3) (a) It is not a discriminatory or prohibited employment practice:
190 (i) for an employer to hire and employ employees, for an employment agency to classify
191 or refer for employment any individual, for a labor organization to classify its membership or to
192 classify or refer for employment any individual or for an employer, labor organization, or joint
193 labor-management committee controlling apprenticeship or other training or retraining programs
194 to admit or employ any individual in any such program, on the basis of religion, sex, pregnancy,
195 childbirth, or pregnancy-related conditions, age, national origin, or disability in those certain
196 instances where religion, sex, pregnancy, childbirth, or pregnancy-related conditions, age, if the
197 individual is 40 years of age or older, national origin, or disability is a bona fide occupational
198 qualification reasonably necessary to the normal operation of that particular business or enterprise;
199 (ii) for a school, college, university, or other educational institution to hire and employ
200 employees of a particular religion if the school, college, university, or other educational institution
201 is, in whole or in substantial part, owned, supported, controlled, or managed by a particular
202 religious corporation, association, or society, or if the curriculum of the school, college, university,
203 or other educational institution is directed toward the propagation of a particular religion;
204 (iii) for an employer to give preference in employment to:
205 (A) the employer's:
206 (I) spouse;
207 (II) child; or
208 (III) son-in-law or daughter-in-law;
209 (B) any person for whom the employer is or would be liable to furnish financial support
210 if those persons were unemployed;
211 (C) any person to whom the employer during the preceding six months has furnished more
212 than [one-half] 1/2 of total financial support regardless of whether or not the employer was or is
213 legally obligated to furnish support; or

214 (D) any person whose education or training was substantially financed by the employer
215 for a period of two years or more.
216 (b) Nothing in this chapter applies to any business or enterprise on or near an Indian
217 reservation with respect to any publicly announced employment practice of the business or
218 enterprise under which preferential treatment is given to any individual because that individual is
219 a native American Indian living on or near an Indian reservation.
220 (c) Nothing in this chapter shall be interpreted to require any employer, employment
221 agency, labor organization, vocational school, joint labor-management committee, or
222 apprenticeship program subject to this chapter to grant preferential treatment to any individual or
223 to any group because of the race, color, religion, sex, age, national origin, or disability of the
224 individual or group on account of an imbalance which may exist with respect to the total number
225 or percentage of persons of any race, color, religion, sex, age, national origin, or disability
226 employed by any employer, referred or classified for employment by an employment agency or
227 labor organization, admitted to membership or classified by any labor organization, or admitted
228 to or employed in, any apprenticeship or other training program, in comparison with the total
229 number or percentage of persons of that race, color, religion, sex, age, national origin, or disability
230 in any community or county or in the available work force in any community or county.
231 (4) It is not a discriminatory or prohibited practice with respect to age to observe the terms
232 of a bona fide seniority system or any bona fide employment benefit plan such as a retirement,
233 pension, or insurance plan that is not a subterfuge to evade the purposes of this chapter, except that
234 no such employee benefit plan shall excuse the failure to hire an individual.
235 (5) Notwithstanding Subsection (4), or any other statutory provision to the contrary, a
236 person may not be subject to involuntary termination or retirement from employment on the basis
237 of age alone, if the individual is 40 years of age or older, except:
238 (a) under Subsection (6);
239 (b) under Section [ 67-5-8 ] 67-5-203 ; and
240 (c) when age is a bona fide occupational qualification.
241 (6) Nothing in this section prohibits compulsory retirement of an employee who has
242 attained at least 65 years of age, and who, for the two-year period immediately before retirement,
243 is employed in a bona fide executive or a high policymaking position, if:
244 (a) that employee is entitled to an immediate nonforfeitable annual retirement benefit from

245 the employee's employer's pension, profit-sharing, savings, or deferred compensation plan, or any
246 combination of those plans; and
247 (b) the benefit described in Subsection (6)(a) equals, in the aggregate, at least $44,000.
248 Section 3. Section 62A-4a-202.6 is amended to read:
249 62A-4a-202.6. Child protective services investigators within attorney general's office
250 -- Authority.
251 (1) (a) Pursuant to Section [ 67-5-16 ] 67-5-107 the attorney general may employ, with the
252 consent of the division, child protective services investigators to investigate reports of abuse or
253 neglect of a child that occur while the child is in the custody of the division.
254 (b) (i) Under the direction of the Board of Child and Family Services, the division shall,
255 in accordance with Subsection 62A-4a-409 (5), contract with an independent child protective
256 service investigator to investigate reports of abuse or neglect of a child that occur while the child
257 is in the custody of the division.
258 (ii) The executive director of the department shall designate an entity within the
259 department, other than the division, to monitor the contract for the investigators described in
260 Subsection (1)(b)(i).
261 (2) The investigators described in Subsection (1) may also investigate allegations of abuse
262 or neglect of a child by a department employee or a licensed substitute care provider.
263 (3) The investigators described in Subsection (1), if not peace officers, shall have the same
264 rights, duties, and authority of a child protective services investigator employed by the division to:
265 (a) make a thorough investigation upon receiving either an oral or written report of alleged
266 abuse or neglect of a child, with the primary purpose of that investigation being the protection of
267 the child;
268 (b) make an inquiry into the child's home environment, emotional, or mental health, the
269 nature and extent of the child's injuries, and the child's physical safety;
270 (c) make a written report of their investigation, including determination regarding whether
271 the alleged abuse or neglect was substantiated, unsubstantiated, or without merit, and forward a
272 copy of that report to the division within the time mandates for investigations established by the
273 division;
274 (d) immediately consult with school authorities to verify the child's status in accordance
275 with Sections 53A-11-101 through 53A-11-103 when a report is based upon or includes an

276 allegation of educational neglect;
277 (e) enter upon public or private premises, using appropriate legal processes, to investigate
278 reports of alleged child abuse or neglect; and
279 (f) take a child into protective custody, and deliver the child to a law enforcement officer,
280 or to the division. Control and jurisdiction over the child shall be determined by the provisions
281 of Title 62A, Chapter 4a, Part 2, Child Welfare Services, Title 78, Chapter 3a, Juvenile Courts, and
282 as otherwise provided by law.
283 Section 4. Section 63-30-35 is amended to read:
284 63-30-35. Expenses of attorney general, general counsel for state judiciary, and
285 general counsel for the Legislature in representing the state, its branches, members, or
286 employees.
287 (1) (a) After consultation with appropriate state agencies, the state risk manager shall
288 provide a comprehensive liability plan, with limits not lower than those set forth in Section
289 63-30-34 , that will protect the state and its indemnified employees from claims and liability.
290 (b) The risk manager shall establish deductibles and maximum limits of coverage in
291 consultation with the executive director of the Department of Administrative Services.
292 (2) (a) The Office of the Attorney General has primary responsibility to provide legal
293 representation to the judicial, executive, and legislative branches of state government in cases
294 where Risk Management Fund coverage applies.
295 (b) When the attorney general has primary responsibility to provide legal representation
296 to the judicial or legislative branches, the attorney general shall consult with the general counsel
297 for the state judiciary and with the general counsel for the Legislature, to solicit their assistance
298 in defending their respective branch, and in determining strategy and making decisions concerning
299 the disposition of those claims. The decision for settlement of monetary claims in those cases,
300 however, lies with the attorney general and the state risk manager.
301 (3) (a) If the Judicial Council, after consultation with the general counsel for the state
302 judiciary, determines that the Office of the Attorney General cannot adequately defend the state
303 judiciary, its members, or employees because of a conflict of interest, separation of powers
304 concerns, or other political or legal differences, the Judicial Council may direct its general counsel
305 to separately represent and defend it.
306 (b) If the general counsel for the state judiciary undertakes independent legal

307 representation of the state judiciary, its members, or employees, the general counsel shall notify
308 the state risk manager and the attorney general in writing before undertaking that representation.
309 (c) If the state judiciary elects to be represented by its own counsel under this section, the
310 decision for settlement of claims against the state judiciary, its members, or employees, where Risk
311 Management Fund coverage applies, lies with the general counsel for the state judiciary and the
312 state risk manager.
313 (4) (a) If the Legislative Management Committee, after consultation with general counsel
314 for the Legislature, determines that the Office of the Attorney General cannot adequately defend
315 the legislative branch, its members, or employees because of a conflict of interest, separation of
316 powers concerns, or other political or legal differences, the Legislative Management Committee
317 may direct its general counsel to separately represent and defend it.
318 (b) If the general counsel for the Legislature undertakes independent legal representation
319 of the Legislature, its members, or employees, the general counsel shall notify the state risk
320 manager and the attorney general in writing before undertaking that representation.
321 (c) If the legislative branch elects to be represented by its own counsel under this section,
322 the decision for settlement of claims against the legislative branch, its members, or employees,
323 where Risk Management Fund coverage applies, lies with the general counsel for the Legislature
324 and the state risk manager.
325 (5) (a) Notwithstanding the provisions of Section [ 67-5-3 ] 67-5-103 or any other provision
326 of this [code] title, the attorney general, the general counsel for the state judiciary, and the general
327 counsel for the Legislature may bill the Department of Administrative Services for all costs and
328 legal fees expended by their respective offices, including attorneys' and secretarial salaries, in
329 representing the state or any indemnified employee against any claim for which the Risk
330 Management Fund may be liable and in advising state agencies and employees regarding any of
331 those claims.
332 (b) The risk manager shall draw funds from the Risk Management Fund for this purpose.
333 Section 5. Section 67-5-101 , which is renumbered from Section 67-5-1 is renumbered and
334 amended to read:
335 Part 1. Powers and Duties
336 [67-5-1]. 67-5-101. General duties.
337 The attorney general shall:

338 (1) perform all duties in a manner consistent with the attorney-client relationship under
339 Section [ 67-5-17 ] 67-5-108 ;
340 (2) except as provided in Sections 10-3-928 and 17-18-1 , attend the Supreme Court and
341 the Court of Appeals of this state, and all courts of the United States, and prosecute or defend all
342 causes to which the state, or any officer, board, or commission of the state in an official capacity
343 is a party; and take charge, as attorney, of all civil legal matters in which the state is interested;
344 (3) after judgment on any cause referred to in Subsection (2), direct the issuance of process
345 as necessary to execute the judgment;
346 (4) account for, and pay over to the proper officer, all moneys that come into the attorney
347 general's possession that belong to the state;
348 (5) keep a file of all cases in which the attorney general is required to appear, including
349 any documents and papers showing the court in which the cases have been instituted and tried, and
350 whether they are civil or criminal, and:
351 (a) if civil, the nature of the demand, the stage of proceedings, and when prosecuted to
352 judgment, a memorandum of the judgment and of any process issued whether satisfied, and if not
353 satisfied, the return of the sheriff;
354 (b) if criminal, the nature of the crime, the mode of prosecution, the stage of proceedings,
355 and when prosecuted to sentence, a memorandum of the sentence and of the execution, if the
356 sentence has been executed, if not executed, of the reason of the delay or prevention; and
357 (c) deliver this information to the attorney general's successor in office;
358 (6) exercise supervisory powers over the district and county attorneys of the state in all
359 matters pertaining to the duties of their offices, and from time to time require of them reports of
360 the condition of public business entrusted to their charge;
361 (7) give the attorney general's opinion in writing and without fee to the Legislature or
362 either house, and to any state officer, board, or commission, and to any county attorney or district
363 attorney, when required, upon any question of law relating to their respective offices;
364 (8) when required by the public service or directed by the governor, assist any district or
365 county attorney in the discharge of his duties;
366 (9) purchase in the name of the state, under the direction of the state Board of Examiners,
367 any property offered for sale under execution issued upon judgments in favor of or for the use of
368 the state, and enter satisfaction in whole or in part of the judgments as the consideration of the

369 purchases;
370 (10) when the property of a judgment debtor in any judgment mentioned in Subsection (9)
371 has been sold under a prior judgment, or is subject to any judgment, lien, or encumbrance taking
372 precedence of the judgment in favor of the state, redeem the property, under the direction of the
373 state Board of Examiners, from the prior judgment, lien, or encumbrance, and pay all money
374 necessary for the redemption, upon the order of the state Board of Examiners, out of any money
375 appropriated for these purposes;
376 (11) when in his opinion it is necessary for the collection or enforcement of any judgment,
377 institute and prosecute on behalf of the state any action or proceeding necessary to set aside and
378 annul all conveyances fraudulently made by the judgment debtors, and pay the cost necessary to
379 the prosecution, when allowed by the state Board of Examiners, out of any money not otherwise
380 appropriated;
381 (12) discharge the duties of a member of all official boards of which the attorney general
382 is or may be made a member by the Utah Constitution or by the laws of the state, and other duties
383 prescribed by law;
384 (13) institute and prosecute proper proceedings in any court of the state or of the United
385 States, to restrain and enjoin corporations organized under the laws of this or any other state or
386 territory from acting illegally or in excess of their corporate powers or contrary to public policy,
387 and in proper cases forfeit their corporate franchises, dissolve the corporations, and wind up their
388 affairs;
389 (14) institute investigations for the recovery of all real or personal property that may have
390 escheated or should escheat to the state, and for that purpose, subpoena any persons before any of
391 the district courts to answer inquiries and render accounts concerning any property, examine all
392 books and papers of any corporations, and when any real or personal property is discovered that
393 should escheat to the state, institute suit in the district court of the county where the property is
394 situated for its recovery, and escheat that property to the state;
395 (15) administer the Children's Justice Center as a program to be implemented in various
396 counties pursuant to Sections 67-5b-101 through 67-5b-107 ;
397 (16) assist the Constitutional Defense Council as provided in Title 63C, Chapter 4,
398 Constitutional Defense Council;
399 (17) investigate and prosecute criminal violations of Title 26, Chapter 20, False Claims

400 Act, in accordance with Section 26-20-13 ; and
401 (18) investigate and prosecute complaints of abuse, neglect, or exploitation of patients at
402 health care facilities that receive payments under the state Medicaid program.
403 Section 6. Section 67-5-102 , which is renumbered from Section 67-5-2 is renumbered and
404 amended to read:
405 [67-5-2]. 67-5-102. Official bond.
406 (1) The attorney general shall give to the state treasurer a [surety-company] surety bond
407 in the sum of $5,000[;][ the premium of said].
408 (2) The bond premium shall be paid by the state.
409 Section 7. Section 67-5-103 , which is renumbered from Section 67-5-3 is renumbered and
410 amended to read:
411 [67-5-3]. 67-5-103. Performance of legal services for agencies -- Billing --
412 "Agency" defined.
413 (1) As used in this section, "state agency" means any department, division, agency,
414 commission, board, council, committee, authority, institution, or other entity within the state
415 government of Utah.
416 (2) The attorney general may assign his legal assistants to perform legal services for any
417 state agency [of state government. He].
418 (3) The attorney general shall bill that state agency for the legal services performed, if
419 [(1)]:
420 (a) the state agency [so billed] receives federal funds to pay for the legal services
421 rendered[,]; or [if (2)]
422 (b) the state agency collects funds from any other source in the form of fees, costs, interest,
423 fines, penalties, forfeitures, or other proceeds reserved or designated for the payment of legal fees
424 sufficient to pay for all or a portion of the legal [services rendered; however, the] fees assessed by
425 the attorney general's office.
426 (4) A state agency may deduct any unreimbursed costs and expenses incurred by the
427 agency in connection with the legal services [rendered. As used in this act "agency" means any
428 department, division, agency, commission, board, council, committee, authority, institution, or
429 other entity within the state government of Utah.] provided by the attorney general's office.
430 Section 8. Section 67-5-104 , which is renumbered from Section 67-5-4 is renumbered and

431 amended to read:
432 [67-5-4]. 67-5-104. Interaccount billings included in budget -- Payment of staff
433 members.
434 The attorney general shall:
435 (1) include [in his annual budget] all interaccount billings in his annual budget; and
436 (2) pay [directly out of his funds] all members of his staff directly out of his funds, whether
437 that staff is housed in his offices or not.
438 Section 9. Section 67-5-105 , which is renumbered from Section 67-5-5 is renumbered and
439 amended to read:
440 [67-5-5]. 67-5-105. Hiring of legal counsel for agencies -- Costs.
441 Except where specifically authorized by the Utah Constitution, or statutes, no agency shall
442 hire legal counsel, and the attorney general alone shall have the sole right to hire legal counsel for
443 each such agency. Where the Legislature has provided by statute for separate agency counsel, no
444 such counsel may act as an assistant attorney general nor as a special assistant attorney general
445 unless the attorney general shall so authorize. Unless he hires such legal counsel from outside his
446 office, the attorney general shall remain the sole legal counsel for that agency. If outside counsel
447 is hired for an agency, then the costs of any services to be rendered by this counsel shall be
448 approved by the attorney general before these costs are incurred. The attorney general shall
449 approve all billing statements from outside counsel and shall pay the full costs of this counsel
450 unless the agency by legislative appropriation or in the form of costs, fees, fines, penalties,
451 forfeitures, or proceeds reserved or designated for the payment of legal fees [receives] received
452 from any other source the equivalent cost or a portion thereof, in which case the attorney general
453 may bill the agency for the services; provided, the agency may deduct any unreimbursed costs and
454 expenses incurred by the agency in connection with the legal service rendered.
455 Section 10. Section 67-5-106 , which is renumbered from Section 67-5-15 is renumbered
456 and amended to read:
457 [67-5-15]. 67-5-106. Records of the attorney general.
458 (1) A record provided to the Office of the Attorney General by a client governmental entity
459 shall be considered a record of the client governmental entity for purposes of Title 63, Chapter 2,
460 Government Records Access and Management Act, if the client governmental entity retains a copy
461 of the record.

462 (2) Notwithstanding Subsection 63-2-201 (5), records may be exchanged between the
463 Office of the Attorney General and a client governmental entity, without meeting the requirements
464 of Section 63-2-206 provided that they are used only for the purpose of representing the client
465 governmental entity.
466 Section 11. Section 67-5-107 , which is renumbered from Section 67-5-16 is renumbered
467 and amended to read:
468 [67-5-16]. 67-5-107. Child protective services investigators within attorney
469 general's office -- Authority.
470 [The attorney general may employ, with]
471 (1) With the consent of the Division of Child and Family Services within the Department
472 of Human Services, and in accordance with Section 62A-4a-202.6 , the attorney general may
473 employ child protective services investigators to investigate alleged instances of abuse or neglect
474 of a child that occur while a child is in the custody of the Division of Child and Family Services.
475 (2) Those investigators may also investigate reports of abuse or neglect of a child by an
476 employee of the Department of Human Services, or involving a person or entity licensed to provide
477 substitute care for children in the custody of the Division of Child and Family Services.
478 Section 12. Section 67-5-108 , which is renumbered from Section 67-5-17 is renumbered
479 and amended to read:
480 [67-5-17]. 67-5-108. Attorney-client relationship.
481 (1) When representing the governor, lieutenant governor, auditor, or treasurer, or when
482 representing an agency under the supervision of any of those officers, the attorney general shall:
483 (a) keep the officer or the officer's designee reasonably informed about the status of a
484 matter and promptly comply with reasonable requests for information;
485 (b) explain a matter to the extent reasonably necessary to enable the officer or the officer's
486 designee to make informed decisions regarding the representation;
487 (c) abide by the officer's or designee's decisions concerning the objectives of the
488 representation and consult with the officer or designee as to the means by which they are to be
489 pursued; and
490 (d) jointly by agreement, establish protocols with the officer to facilitate communications
491 and working relationships with the officer or agencies under the officer's supervision.
492 (2) Nothing in Subsection (1) modifies or supercedes any independent legal authority

493 granted specifically by statute to the attorney general.
494 (3) When the attorney general institutes or maintains a civil enforcement action on behalf
495 of the state of Utah that is not covered under Subsection (1), the attorney general shall:
496 (a) fully advise the governor, as the officer in whom the executive authority of the state
497 is vested, before instituting the action, entering into a settlement or consent decree, or taking an
498 appeal; and
499 (b) keep the governor reasonably informed about the status of the matter and promptly
500 comply with reasonable requests for information.
501 (4) In a civil action not covered under Subsection (1) or (3), the attorney general shall:
502 (a) keep the governor reasonably informed about the status of the matter and promptly
503 comply with reasonable requests for information;
504 (b) explain the matter to the extent reasonably necessary to enable the governor to make
505 informed decisions regarding the representation; and
506 (c) abide by the governor's decisions concerning the objectives of the representation and
507 consult with the governor as to the means by which they are to be pursued.
508 (5) The governor may appear in any civil legal action involving the state and appoint legal
509 counsel to advise or appear on behalf of the governor. The court shall allow the governor's
510 appearance.
511 Section 13. Section 67-5-201 , which is renumbered from Section 67-5-6 is renumbered
512 and amended to read:
513 Part 2. Career Service Act for Attorneys Employed by the Attorney General
514 [67-5-6]. 67-5-201. Attorney General Career Service Act -- Citation.
515 This [act shall be] part is known [and may be cited] as the "Career Service Act for
516 Attorneys Employed by the Attorney General [Career Service Act]."
517 Section 14. Section 67-5-202 , which is renumbered from Section 67-5-7 is renumbered
518 and amended to read:
519 [67-5-7]. 67-5-202. Establishment of career service system.
520 [(1) The purpose of this chapter is to establish a career service system for attorneys
521 employed by the Office of the Attorney General that will attract and retain attorneys of proven
522 ability and experience who will devote their full time to the service of the state.]
523 [(2)] The Office of the Attorney General may adopt rules necessary to implement this

524 chapter, including personnel and work rules different from those promulgated by the Department
525 of Human Resource Management.
526 Section 15. Section 67-5-203 , which is renumbered from Section 67-5-8 is renumbered
527 and amended to read:
528 [67-5-8]. 67-5-203. Eligibility for career service status.
529 (1) (a) The attorney general has sole authority to determine who may be employed with
530 the attorney general's office. [No]
531 (b) An attorney employed by the state or any of its departments or agencies [has] does not
532 have any claim or right to a position in the attorney general's office [by virtue] because of that
533 employment.
534 [(2) An attorney employed by the attorney general's office shall be placed in a career
535 service status if:]
536 [(a) the attorney is a member in good standing of the Utah State Bar Association; and]
537 [(b) the attorney has been employed by the attorney general's office as an attorney for a
538 probationary period of no more than one year except as provided in Subsection (3), but in no event
539 less than six months. No]
540 (2) (a) (i) On and after July 1, 2002, the attorney general and the attorney general's office
541 may not place any attorney employed by the attorney general's office in career service status.
542 (ii) Attorneys not in career service status are at-will employees and shall be governed by
543 the classification and pay plans established under Section 67-5-204 .
544 (b) Except as provided in Subsection (2)(c), an attorney now employed by the attorney
545 general's office in career service may not be terminated under this chapter except for cause.
546 [(3) The attorney general shall determine whether an attorney should be granted career
547 service status. If, at the end of the probationary period established under Subsection (2), the
548 attorney general determines that an attorney should be granted career service status, the attorney
549 general shall notify the attorney in writing of that decision and place a copy of the notification in
550 the attorney's personnel file. If the attorney general determines that career service status should
551 not be granted, the attorney general may either terminate the attorney or extend the probationary
552 period for a period not to exceed one year. The attorney general shall notify the attorney in writing
553 of that decision and place a copy of the notification in the attorney's personnel file. An attorney
554 terminated under this section has no appeal rights under this chapter.]

555 (c) An attorney now employed by the attorney general's office in career service may
556 voluntarily abandon the attorney's career service status and convert to at-will status by informing
557 the attorney general of that intent in writing.
558 [(4)] (3) (a) Attorneys in career service status under this chapter shall retire upon attaining
559 the age of 70 years. [Attorneys]
560 (b) The attorney general may employ attorneys required to retire under this section [may
561 be employed by the attorney general] after their retirement as special assistant attorneys general.
562 (c) Any attorney employed in this capacity is an at-will employee, not in career service
563 status and is subject to termination as any other attorney employed by the attorney general who is
564 not in a career service status.
565 Section 16. Section 67-5-204 is enacted to read:
566 67-5-204. Classification and pay plans for attorneys not in career service status.
567 The attorney general shall, in consultation with the Department of Human Resource
568 Management, develop a classification plan and a pay plan for at-will attorneys who are not in
569 career service status.
570 Section 17. Section 67-5-205 , which is renumbered from Section 67-5-9 is renumbered
571 and amended to read:
572 [67-5-9]. 67-5-205. Reassignment of career status attorneys -- Additional
573 compensation for managerial assignments -- Employment of special assistant attorneys
574 general -- Termination of attorneys -- Salary increases.
575 [This chapter does not affect the authority of the attorney general to:]
576 (1) (a) The attorney general may assign and reassign attorneys in a career status to different
577 positions on his staff. [The]
578 (b) Except as provided in Subsections (1)(c) and (2), the attorney general may not decrease
579 the salary of an attorney reassigned to a different position [shall not be decreased by reason]
580 because of reassignment[; except that if].
581 (c) If the attorney reassigned occupies the position of deputy attorney general, the attorney
582 general may reduce that attorney's salary [may be reduced] by not more than 15% upon the
583 assignment to a different position[;].
584 (2) [develop,] (a) The attorney general shall, with the assistance of the Department of
585 Human Resource Management, develop a plan for additional compensation for career status

586 attorneys who accept managerial assignments within the office. [The provisions of Subsection (1)
587 notwithstanding, the]
588 (b) The attorney general may discontinue any additional compensation [if] when the
589 attorney no longer holds a managerial assignment.
590 (c) Additional compensation provided under this section shall be determined by the
591 attorney general pursuant to the plan developed by the Office of the Attorney General. [At such
592 time as]
593 (d) When the attorney no longer holds a managerial assignment, and the attorney general
594 decides to discontinue [any] the additional compensation, the reduction may not place the attorney
595 at a salary below where the attorney would be through normal salary increases if the attorney had
596 not been in a managerial position[;].
597 (3) The attorney general may:
598 [(3)] (a) employ special assistant attorneys general, who [shall] are not [be] subject to this
599 chapter, to represent the state in particular lawsuits or to handle particular legal matters for the
600 state;
601 [(4)] (b) terminate the employment of any attorney employed by the Office of the Attorney
602 General who is not in a career service status; and
603 [(5)] (c) establish the salary or determine salary increases of any attorney under this
604 chapter.
605 Section 18. Section 67-5-206 , which is renumbered from Section 67-5-12 is renumbered
606 and amended to read:
607 [67-5-12]. 67-5-206. Dismissal of career status attorneys -- Causes -- Procedure
608 -- Retention roster -- Reappointment register.
609 (1) (a) Attorneys in a career status may be dismissed only:
610 (i) to advance the good of public service;
611 (ii) where funds have expired or work no longer exists; or
612 (iii) for causes such as dishonesty, inefficiency, insubordination, disloyalty to the orders
613 of a superior, misfeasance, malfeasance, or nonfeasance in office.
614 (b) Attorneys in career status may not be dismissed for reasons of race, national origin,
615 religion, or political affiliation.
616 (2) Except in aggravated cases of misconduct, no attorney in a career status may be

617 demoted or dismissed without the following procedures:
618 (a) The attorney general shall notify the attorney of the reasons for demotion or dismissal.
619 (b) The attorney shall have an opportunity to reply and have the reply considered by the
620 attorney general.
621 (c) The attorney shall have an opportunity to be heard by the attorney general or his
622 designated representatives.
623 (d) Following a hearing, an attorney may be demoted or dismissed if the attorney general
624 finds adequate reason.
625 (e) If the attorney general finds that retention of an attorney would endanger the peace and
626 safety of others or pose a grave threat to the public interest, the attorney may be summarily
627 suspended pending administrative hearings and a review by the Career Service Review Board.
628 (3) (a) An attorney in a career status who is aggrieved by a decision of the attorney general
629 to either dismiss or demote may appeal the decision to the Career Service Review Board or its
630 hearing officers by following the procedures in Title 67, Chapter 19a, Grievance and Appeal
631 Procedures.
632 (b) Matters other than dismissal or demotion may be appealed to and reviewed by the
633 attorney general or a designated representative whose decision is final with no right of appeal to
634 the Career Service Review Board or its hearing officers.
635 (4) Disciplinary actions shall be supported by credible evidence, but the normal rules of
636 evidence in courts of law do not apply in hearings before the attorney general or the Career Service
637 Review Board or its hearing officers.
638 (5) (a) Reductions in force required by [reinstatement of an attorney under Section
639 67-5-11 ,] inadequate funds, change of workload, or lack of work shall be governed by a retention
640 roster to be maintained by the director of the Department of Human Resource Management and
641 the requirements of this Subsection (5).
642 [(b) Attorneys not in a career status shall be separated before any attorney in a career
643 status.]
644 [(c)] (b) Retention points for each attorney in a career status shall be based on his seniority
645 in service as an attorney in the Office of the Attorney General, including any military service
646 fulfilled subsequent to his original appointment.
647 [(d)] (c) Attorneys in career status shall be separated in the order of their retention points,

648 the attorney with the lowest points to be discharged first.
649 [(e) Those attorneys who are serving in other positions under Section 67-5-11 shall:]
650 [(i) have retention points determined as if they were working for the office; and]
651 [(ii) be separated in the order of the retention points as if they were working in the Office
652 of the Attorney General.]
653 [(f)] (d) An attorney in a career status who is separated by reason of a reduction in force
654 shall be[: (i)] placed on a reappointment register kept by the director of the Department of Human
655 Resource Management for one year[; and ].
656 [(ii) offered reappointment to a position in the Office of the Attorney General before any
657 attorney not having a career status is appointed.]
658 Section 19. Section 67-5-207 , which is renumbered from Section 67-5-13 is renumbered
659 and amended to read:
660 [67-5-13]. 67-5-207. Limitations on political activities by career status attorneys.
661 (1) [No] (a) An attorney in a career status may not, while in a pay status, be a state or
662 federal officer in any partisan political party organization or in any statewide partisan political
663 campaign.
664 (b) The attorney[, however,] may be an officer or delegate in a partisan political party
665 organization at a county or inferior level or a delegate at a state or national level.
666 (2) [No] (a) An attorney in career status [shall] may not be a candidate for any partisan
667 political office, but, upon application to the attorney general [he], the attorney shall be granted a
668 leave of absence without pay but without loss of existing seniority to participate in a partisan
669 political campaign either as an officer or as a candidate.
670 (b) Time spent during the political leave [shall] may not be counted for seniority purposes
671 as being in service.
672 (c) For the purposes of this section, an attorney is not [deemed] considered to be a
673 candidate until the primary elections have been held.
674 (3) [No] (a) An attorney in career status may not engage in political activity during the
675 hours of employment[, nor may any].
676 (b) A person may not solicit political contributions from any attorney in career status
677 during hours of employment or through state facilities or in any manner impose assessments on
678 them for political purposes[; but nothing].

679 (c) Nothing in this section [shall preclude] precludes voluntary contributions to a candidate
680 or a political party.
681 (4) [Partisan] (a) The partisan political activity [shall] of an attorney in career status may
682 not be a basis for employment, promotion, demotion, or dismissal.
683 (b) Any violation of this section may lead to disciplinary action against the attorney, which
684 may consist of reprimand, suspension, demotion, or termination as determined by the attorney
685 general.
686 (5) This section [shall] may not be construed to permit partisan political activity by any
687 attorney in career status who is prevented or restricted from engaging in this political activity by
688 the provisions of any federal act or the rules and regulations promulgated under it.
689 Section 20. Section 67-5-301 , which is renumbered from Section 67-5-18 is renumbered
690 and amended to read:
691 Part 3. Pornography Complaints Ombudsman
692 [67-5-18]. 67-5-301. Pornography Complaints Ombudsman -- Powers.
693 (1) As used in this section, "pornography" means material or a performance that meets the
694 requirements of Subsection 76-10-1203 (1).
695 (2) (a) There is created an Obscenity and Pornography Complaints Ombudsman in the
696 Office of the Attorney General.
697 (b) The attorney general shall hire an attorney licensed to practice law in Utah who has
698 knowledge of obscenity and pornography law and, if possible, who has a background or expertise
699 in investigating and prosecuting obscenity and pornography law violations to fill the position.
700 (c) The person hired to fill the position is an exempt employee.
701 (d) The attorney general may hire clerks, interns, or other personnel to assist the
702 pornography complaints ombudsman.
703 (3) The Obscenity and Pornography Complaints Ombudsman shall:
704 (a) develop and maintain expertise in and understanding of laws designed to control or
705 eliminate obscenity and pornography and the legal standards governing the regulation or
706 elimination of obscenity and pornography;
707 (b) advise citizens and local governments about remedies to address instances of obscenity
708 and pornography in their communities;
709 (c) advise local governments about ways to strengthen local laws and ordinances

710 addressing obscenity and pornography;
711 (d) advise local governments about strategies to restrict, suppress, or eliminate obscenity
712 and pornography in their communities;
713 (e) at the request of the attorney general or a local government, assist a local government
714 in investigating and prosecuting state and local laws and ordinances addressing obscenity or
715 pornography;
716 (f) advise citizens about their options to address specific complaints about obscenity or
717 pornography in their communities;
718 (g) when requested by a citizen or local government official, arbitrate between citizens and
719 businesses to resolve complaints about obscenity or pornography;
720 (h) provide information to private citizens, civic groups, government entities, and other
721 interested parties about the dangers of obscenity and pornography, the current laws to restrict,
722 suppress, or eliminate pornography, and their rights and responsibilities under those laws;
723 (i) in conjunction with Utah's county and municipal prosecuting attorneys:
724 (i) review Utah's and Idaho's moral nuisance law;
725 (ii) draft a comprehensive moral nuisance law for Utah and a model ordinance for
726 municipalities and counties to provide an effective mechanism to abate and discourage obscenity
727 and pornography; and
728 (iii) present the draft to the Legislature's Judiciary Interim Committee before October 25,
729 2001; and
730 (j) establish a program to combat Internet pornography and to assist parents in protecting
731 their children from Internet pornography.
732 Section 21. Repealer.
733 This act repeals:
734 Section 67-5-11, Attorney accepting appointment to state position exempt from merit
735 provisions -- Reinstatement in career status.

Legislative Review Note
as of 12-19-01 9:32 AM

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

Office of Legislative Research and General Counsel