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Second Substitute S.B. 180
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6 Cosponsor:John L. Valentine 7
8 LONG TITLE
9 General Description:
10 This bill enacts language related to a political subdivision officer or employee ethics
11 violation.
12 Highlighted Provisions:
13 This bill:
14 . authorizes a municipality to establish a municipal ethics commission;
15 . enacts general provisions;
16 . defines terms;
17 . authorizes a political subdivision to establish an ethics commission within the
18 political subdivision or by interlocal agreement;
19 . enacts provisions related to the Political Subdivisions Ethics Review Commission
20 (Commission);
21 . enacts provisions related to general powers and procedures;
22 . enacts provisions related to a hearing on an ethics complaint;
23 . enacts provisions related to an ethics complaint;
24 . enacts provisions related to a review of an ethics complaint for compliance;
25 . enacts provisions related to the commission's preliminary review and review of an
26 ethics violation;
27 . authorizes a county to establish a county ethics commission;
28 . amends provisions related to a closed public meeting;
29 . amends provisions related to a private record;
30 . removes a county from the authority of Title 67, Chapter 16, Utah Public Officers'
31 and Employees' Ethics Act;
32 . enacts language related to filing a complaint for a violation of Title 67, Chapter 16,
33 Utah Public Officers' and Employees' Ethics Act; and
34 . makes technical corrections.
35 Money Appropriated in this Bill:
36 None
37 Other Special Clauses:
38 None
39 Utah Code Sections Affected:
40 AMENDS:
41 10-3-1311, as enacted by Laws of Utah 1981, Chapter 57
42 17-16a-11, as enacted by Laws of Utah 1983, Chapter 46
43 52-4-204, as last amended by Laws of Utah 2010, Chapters 35 and 239
44 63G-2-302, as last amended by Laws of Utah 2011, Chapters 85, 327, and 413
45 67-16-3, as last amended by Laws of Utah 2008, Chapter 382
46 67-16-4, as last amended by Laws of Utah 2008, Chapter 382
47 ENACTS:
48 11-49-101, Utah Code Annotated 1953
49 11-49-102, Utah Code Annotated 1953
50 11-49-103, Utah Code Annotated 1953
51 11-49-201, Utah Code Annotated 1953
52 11-49-202, Utah Code Annotated 1953
53 11-49-301, Utah Code Annotated 1953
54 11-49-302, Utah Code Annotated 1953
55 11-49-401, Utah Code Annotated 1953
56 11-49-402, Utah Code Annotated 1953
57 11-49-403, Utah Code Annotated 1953
58 11-49-404, Utah Code Annotated 1953
59 11-49-405, Utah Code Annotated 1953
60 11-49-406, Utah Code Annotated 1953
61 11-49-407, Utah Code Annotated 1953
62 11-49-408, Utah Code Annotated 1953
63 11-49-501, Utah Code Annotated 1953
64 11-49-502, Utah Code Annotated 1953
65 11-49-601, Utah Code Annotated 1953
66 11-49-602, Utah Code Annotated 1953
67 11-49-603, Utah Code Annotated 1953
68 11-49-604, Utah Code Annotated 1953
69 11-49-701, Utah Code Annotated 1953
70 11-49-702, Utah Code Annotated 1953
71 11-49-703, Utah Code Annotated 1953
72 11-49-704, Utah Code Annotated 1953
73 11-49-705, Utah Code Annotated 1953
74 11-49-706, Utah Code Annotated 1953
75 67-16-15, Utah Code Annotated 1953
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77 Be it enacted by the Legislature of the state of Utah:
78 Section 1. Section 10-3-1311 is amended to read:
79 10-3-1311. Municipal ethics commission -- Complaints charging violations.
80 (1) A municipality may establish by ordinance an ethics commission to review a
81 complaint, except as provided in Subsection (3), against an officer or employee subject to this
82 part for a violation of a provision of this part.
83 (2) (a) Except as provided in Subsection (3), a person filing a complaint for a violation
84 of this part may file the complaint:
85 (i) with the municipal ethics commission, if a municipality has established a municipal
86 ethics commission in accordance with Subsection (1); or
87 (ii) with the Political Subdivisions Ethics Review Commission in accordance with
88 Title 11, Chapter 49, Political Subdivisions Ethics Review Commission.
89 (b) A municipality that receives a complaint described in Subsection (2)(a) may:
90 (i) accept the complaint if the municipality has established a municipal ethics
91 commission in accordance with Subsection (1); or
92 (ii) forward the complaint to the Political Subdivisions Ethics Review Commission
93 established in Section 11-49-201 :
94 (A) regardless of whether the municipality has established a municipal ethics
95 commission; or
96 (B) if the municipality has not established a municipal ethics commission.
97 [
98 person with a violation of this part, shall be filed and processed in accordance with the
99 provisions of the merit system.
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106 Section 2. Section 11-49-101 is enacted to read:
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109 11-49-101. Title.
110 This chapter is known as "Political Subdivisions Ethics Review Commission."
111 Section 3. Section 11-49-102 is enacted to read:
112 11-49-102. Definitions.
113 (1) "Commission" means the Political Subdivisions Ethics Review Commission
114 established in Section 11-49-201 .
115 (2) "Complainant" means a person who files a complaint in accordance with Section
116 11-49-501 .
117 (3) "Local political subdivision ethics commission" means an ethics commission
118 established by a political subdivision within the political subdivision or with another political
119 subdivision by interlocal agreement in accordance with Section 11-49-103 .
120 (4) "Political subdivision" means a county, municipality, school district, community
121 development and renewal agency, local district, special service district, an entity created by an
122 interlocal agreement adopted under Title 11, Chapter 13, Interlocal Cooperation Act, a local
123 building authority, or any other governmental subdivision or public corporation.
124 (5) (a) "Political subdivision employee" means a person who is:
125 (i) employed on a full or part-time basis by a political subdivision; and
126 (ii) subject to:
127 (A) Title 10, Chapter 3, Part 13, Municipal Officers' and Employees' Ethics Act;
128 (B) Title 17, Chapter 16a, County Officers and Employees Disclosure Act; or
129 (C) Title 67, Chapter 16, Utah Public Officers' and Employees' Ethics Act.
130 (b) "Political subdivision employee" does not include:
131 (i) a person who is a political subdivision officer;
132 (ii) an employee of a state entity; or
133 (iii) a legislative employee as defined in Section 67-16-3 .
134 (6) "Political subdivision governing body" means:
135 (a) for a county, the county legislative body as defined in Section 68-3-12.5 ;
136 (b) for a municipality, the council of the city or town;
137 (c) for a school district, the local board of education described in Section 53A-3-101 ;
138 (d) for a community development and renewal agency, the agency board described in
139 Section 17C-1-203 ;
140 (e) for a local district, the board of trustees described in Section 17B-1-301 ;
141 (f) for a special service district:
142 (i) the legislative body of the county, city, or town that established the special service
143 district, if no administrative control board has been appointed under Section 17D-1-301 ; or
144 (ii) the administrative control board of the special service district, if an administrative
145 control board has been appointed under Section 17D-1-301 ;
146 (g) for an entity created by an interlocal agreement, the governing body of an interlocal
147 entity, as defined in Section 11-13-103 ;
148 (h) for a local building authority, the governing body, as defined in Section 17D-2-102 ,
149 that creates the local building authority; or
150 (i) for any other governmental subdivision or public corporation, the board or other
151 body authorized to make executive and management decisions for the subdivision or public
152 corporation.
153 (7) (a) "Political subdivision officer" means a person elected or appointed in a political
154 subdivision who is subject to:
155 (i) Title 10, Chapter 3, Part 13, Municipal Officers' and Employees' Ethics Act;
156 (ii) Title 17, Chapter 16a, County Officers and Employees Disclosure Act; or
157 (iii) Title 67, Chapter 16, Utah Public Officers' and Employees' Ethics Act.
158 (b) "Political subdivision officer" does not include:
159 (i) a person elected or appointed to a state entity;
160 (ii) the governor;
161 (iii) the lieutenant governor;
162 (iv) a member or member-elect of either house of the Legislature; or
163 (v) a member of Utah's congressional delegation.
164 (8) "Respondent" means a person who files a response in accordance with Section
165 11-49-604 .
166 Section 4. Section 11-49-103 is enacted to read:
167 11-49-103. Local ethics commission permitted -- Filing requirements.
168 (1) A political subdivision, other than a municipality described in Section 10-3-1311 or
169 a county described in Section 17-16a-11 , may establish a local political subdivision ethics
170 commission within the political subdivision to review a complaint against a political
171 subdivision officer or employee subject to Title 67, Chapter 16, Utah Public Officers' and
172 Employees' Ethics Act.
173 (2) A political subdivision may enter into an interlocal agreement with another political
174 subdivision, in accordance with Title 11, Chapter 13, Interlocal Cooperation Act, to establish a
175 local political subdivision ethics commission to review a complaint against a political
176 subdivision officer or employee subject to Title 67, Chapter 16, Utah Public Officers' and
177 Employees' Ethics Act.
178 (3) (a) A person filing a complaint for a violation of Title 67, Chapter 16, Utah Public
179 Officers' and Employees' Ethics Act, may file the complaint with:
180 (i) a local political subdivision ethics commission, if the political subdivision has
181 established a local political subdivision ethics commission under Subsection (1) or (2); or
182 (ii) the commission.
183 (b) A political subdivision that receives a complaint described in Subsection (3)(a)
184 may:
185 (i) accept the complaint if the political subdivision has established a local political
186 subdivision ethics commission in accordance with Subsection (1) or (2); or
187 (ii) forward the complaint to the commission:
188 (A) regardless of whether the political subdivision has established a local political
189 subdivision ethics commission; or
190 (B) if the political subdivision has not established a local political subdivision ethics
191 commission.
192 Section 5. Section 11-49-201 is enacted to read:
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194 11-49-201. Commission established -- Membership.
195 (1) There is established a Political Subdivisions Ethics Review Commission.
196 (2) The commission is composed of seven persons, each of whom is registered to vote
197 in this state and appointed by the governor with the advice and consent of the Senate, as
198 follows:
199 (a) one member who has served, but no longer serves, as a judge of a court of record in
200 this state;
201 (b) one member who has served as a mayor or municipal council member no more
202 recently than four years before the date of appointment;
203 (c) one member who has served as a member of a local board of education no more
204 recently than four years before the date of appointment;
205 (d) two members who are lay persons; and
206 (e) two members, each of whom is one of the following:
207 (i) a municipal mayor no more recently than four years before the date of appointment;
208 (ii) a municipal council member no more recently than four years before the date of
209 appointment;
210 (iii) a county mayor no more recently than four years before the date of appointment;
211 (iv) a county commissioner no more recently than four years before the date of
212 appointment;
213 (v) a special service district administrative control board member no more recently
214 than four years before the date of appointment;
215 (vi) a local district board of trustees member no more recently than four years before
216 the date of appointment; or
217 (vii) a judge who has served, but no longer serves, as a judge of a court of record in
218 this state.
219 (3) A member of the commission may not, during the member's term of office on the
220 commission, act or serve as:
221 (a) a political subdivision officer;
222 (b) a political subdivision employee;
223 (c) an agency head as defined in Section 67-16-3 ;
224 (d) a lobbyist as defined in Section 36-11-102 ; or
225 (e) a principal as defined in Section 36-11-102 .
226 (4) (a) (i) Except as provided in Subsection (4)(a)(ii), each member of the commission
227 shall serve a four-year term.
228 (ii) When appointing the initial members upon formation of the commission, a member
229 described in Subsections (2)(b) through (d) shall be appointed to a two-year term so that
230 approximately half of the commission is appointed every two years.
231 (b) (i) When a vacancy occurs in the commission's membership for any reason, a
232 replacement member shall be appointed for the unexpired term of the vacating member using
233 the procedures and requirements of Subsection (2).
234 (ii) For the purposes of this section, an appointment for an unexpired term of a
235 vacating member is not considered a full term.
236 (c) A member may not be appointed to serve for more than two full terms, whether
237 those terms are two or four years.
238 (d) A member of the commission may resign from the commission by giving one
239 month's written notice of the resignation to the governor.
240 (e) The governor shall remove a member from the commission if the member:
241 (i) is convicted of, or enters a plea of guilty to, a crime involving moral turpitude;
242 (ii) enters a plea of no contest or a plea in abeyance to a crime involving moral
243 turpitude; or
244 (iii) fails to meet the qualifications of office as provided in this section.
245 (f) If a commission member is accused of wrongdoing in a complaint, or if a
246 commission member determines that the commission member has a conflict of interest in
247 relation to a complaint, a temporary commission member shall be appointed to serve in that
248 member's place for the purposes of reviewing that complaint using the procedures and
249 requirements of Subsection (2).
250 (5) (a) Except as provided in Subsection (5)(b)(i), a member of the commission may
251 not receive compensation or benefits for the member's service.
252 (b) (i) A member may receive per diem and expenses incurred in the performance of
253 the member's official duties at the rates established by the Division of Finance under Sections
254 63A-3-106 and 63A-3-107 .
255 (ii) A member may decline to receive per diem and expenses for the member's service.
256 (6) (a) The commission members shall convene a meeting annually each January and
257 elect, by a majority vote, a commission chair from among the commission members.
258 (b) A person may not serve as chair for more than two consecutive years.
259 Section 6. Section 11-49-202 is enacted to read:
260 11-49-202. Meetings -- Staff.
261 (1) The commission shall meet for the purpose of reviewing an ethics complaint when:
262 (a) except otherwise expressly provided in this chapter, called to meet at the discretion
263 of the chair; or
264 (b) a majority of members agree to meet.
265 (2) A majority of the commission is a quorum.
266 (3) (a) The commission shall prepare, on an annual basis, a summary data report that
267 contains:
268 (i) a general description of the activities of the commission during the past year;
269 (ii) the number of ethics complaints filed with the commission;
270 (iii) the number of ethics complaints dismissed in accordance with Section 11-49-602 ;
271 (iv) the number of ethics complaints reviewed by the commission in accordance with
272 Section 11-49-701 ;
273 (v) an executive summary of each complaint review in accordance with Section
274 11-49-701 ; and
275 (vi) an accounting of the commission's budget and expenditures.
276 (b) The summary data report shall be submitted to the Government Operations and
277 Political Subdivisions Interim Committee on an annual basis.
278 (c) The summary data report shall be a public record.
279 (4) (a) The Senate and the House of Representatives shall employ staff for the
280 commission at a level that is reasonable to assist the commission in performing its duties as
281 established in this chapter.
282 (b) The Legislative Management Committee shall:
283 (i) authorize each staff position for the commission; and
284 (ii) approve the employment of each staff member for the commission.
285 (c) Staff for the commission shall work only for the commission and may not perform
286 services for the Senate, House of Representatives, other legislative offices, or a political
287 subdivision.
288 (5) A meeting held by the commission is subject to Title 52, Chapter 4, Open and
289 Public Meetings Act, unless otherwise provided.
290 Section 7. Section 11-49-301 is enacted to read:
291
292 11-49-301. Authority to review complaint -- Grounds for complaint -- Limitations
293 on filings.
294 (1) Subject to the requirements of this chapter, the commission is authorized to review
295 an ethics complaint against a political subdivision officer or employee if the complaint alleges:
296 (a) if the applicable political subdivision is a municipality, a violation of Title 10,
297 Chapter 3, Part 13, Municipal Officers' and Employees' Ethics Act by:
298 (i) an appointed officer, as defined in Section 10-3-1303 ;
299 (ii) an elected officer, as defined in Section 10-3-1303 ; or
300 (iii) a municipal employee, as defined in Section 10-3-1303 ;
301 (b) if the applicable political subdivision is a county, a violation of Title 17, Chapter
302 16a, County Officers and Employees Disclosure Act by:
303 (i) an appointed officer, as defined in Section 17-16a-3 ;
304 (ii) an elected officer, as defined in Section 17-16a-3 ; or
305 (iii) an employee subject to Title 17, Chapter 16a, County Officers and Employees
306 Disclosure Act; or
307 (c) for a political subdivision officer or employee other than a municipal officer or
308 employee described in Subsection (1)(a) or a county officer or employee described in
309 Subsection (1)(b), a violation of Title 67, Chapter 16, Utah Public Officers' and Employees'
310 Ethics Act.
311 (2) A complaint described in Subsection (1) shall be filed in accordance with the time
312 limit provisions, if any, of the applicable part or chapter.
313 (3) (a) A complaint may not contain an allegation if that allegation and the general
314 facts and circumstances supporting that allegation have been previously reviewed by a
315 municipal ethics commission established under Section 10-3-1311 , a county ethics commission
316 established under Section 17-16a-11 , or a local political subdivision ethics commission
317 established under Section 11-49-103 , as applicable, or the commission unless:
318 (i) the allegation was previously reviewed and dismissed by either the commission
319 under Section 11-49-602 or 11-49-701 or, as applicable, a municipal, county, or local political
320 subdivision ethics commission;
321 (ii) the allegation is accompanied by material facts or circumstances supporting the
322 allegation that were not raised or pled to the commission or, as applicable, a municipal, county,
323 or local political subdivision ethics commission when the allegation was previously reviewed;
324 and
325 (iii) in the case of an allegation previously reviewed by the commission, the allegation
326 and the general facts and circumstances supporting that allegation have only been reviewed by
327 the commission in accordance with Section 11-49-701 on one previous occasion.
328 (b) The commission may not review a complaint that is currently before:
329 (i) a municipal ethics commission established under Section 10-3-1311 ;
330 (ii) a county ethics commission established under Section 17-16a-11 ; or
331 (iii) a local political subdivision ethics commission established under Section
332 11-49-103 .
333 (c) If an allegation in the complaint does not comply with the requirements of
334 Subsection (3)(a) or (b), the allegation shall be summarily dismissed with prejudice by:
335 (i) the chair when reviewing the complaint under Section 11-49-601 ; or
336 (ii) the commission, when reviewing the complaint under Section 11-49-602 or
337 11-49-701 .
338 Section 8. Section 11-49-302 is enacted to read:
339 11-49-302. General powers -- Jurisdiction.
340 (1) The commission has jurisdiction only over an individual who is a political
341 subdivision officer or employee.
342 (2) The commission shall dismiss an ethics complaint if:
343 (a) the respondent resigns or is terminated from the political subdivision; or
344 (b) except as provided in Subsection (3):
345 (i) the respondent is charged with a criminal violation of:
346 (A) Title 10, Chapter 3, Part 13, Municipal Officers' and Employees' Ethics Act;
347 (B) Title 17, Chapter 16a, County Officers and Employees Disclosure Act; or
348 (C) Title 67, Chapter 16, Utah Public Officers' and Employees' Ethics Act; and
349 (ii) the facts and allegations presented in the ethics complaint assert the same or similar
350 facts and allegations as those asserted in the criminal charges.
351 (3) If an ethics complaint asserts an ethics violation in addition to a criminal violation
352 described in Subsection (2)(b), the commission shall:
353 (a) dismiss an allegation described in Subsection (2)(b)(ii); and
354 (b) proceed with any remaining allegation in the complaint.
355 Section 9. Section 11-49-401 is enacted to read:
356
357 11-49-401. Hearing on ethics complaint -- General procedures.
358 (1) In conducting a hearing on a complaint in accordance with Part 7, Commission
359 Review of Ethics Violation, the commission shall comply with the following process in the
360 order specified:
361 (a) introduction and instructions for procedure and process, at the discretion of the
362 chair;
363 (b) complainant's opening argument, to be presented by a complainant or complainant's
364 counsel;
365 (c) complainant's presentation of evidence and witnesses in support of allegations in
366 the complaint;
367 (d) consideration of motions to dismiss the complaint or motions for a finding of no
368 cause, as applicable;
369 (e) respondent's opening argument, to be presented by the respondent or respondent's
370 counsel;
371 (f) respondent's presentation of evidence and witnesses refuting allegations in the
372 complaint;
373 (g) presentation of rebuttal evidence and witnesses by the complainant, at the
374 discretion of the chair;
375 (h) presentation of rebuttal evidence and witnesses by the respondent, at the discretion
376 of the chair;
377 (i) complainant's closing argument, to be presented by a complainant or complainant's
378 counsel;
379 (j) respondent's closing argument, to be presented by the respondent or respondent's
380 counsel;
381 (k) deliberations by the commission; and
382 (l) adoption of the commission's findings.
383 (2) The commission may, in extraordinary circumstances, vary the order contained in
384 Subsection (1) by majority vote and by providing notice to the parties.
385 (3) The chair may schedule the examination of a witness or evidence subpoenaed at the
386 request of the chair or the commission under Section 11-49-403 at the chair's discretion.
387 Section 10. Section 11-49-402 is enacted to read:
388 11-49-402. Chair as presiding officer.
389 (1) Except as expressly provided otherwise in this chapter, the chair of the commission
390 is vested with the power to direct the commission during meetings authorized by this chapter.
391 (2) Unless expressly prohibited from doing so under this chapter, the commission may
392 overrule a decision of the chair by using the following procedure:
393 (a) If a member objects to a decision of the chair, that member may appeal the decision
394 by stating:
395 (i) "I appeal the decision of the chair."; and
396 (ii) the basis for the objection.
397 (b) A motion described in Subsection (2)(a) is nondebatable.
398 (c) The chair shall direct a roll call vote to determine if the commission supports the
399 decision of the chair.
400 (d) A majority vote of the commission is necessary to overrule the decision of the
401 chair.
402 (3) The chair may set time limitations on any part of a meeting or hearing authorized
403 by this chapter.
404 Section 11. Section 11-49-403 is enacted to read:
405 11-49-403. Subpoena powers.
406 (1) Except for a preliminary review described in Section 11-49-602 , for a proceeding
407 authorized by this chapter, the commission may issue a subpoena to:
408 (a) require the attendance of a witness;
409 (b) direct the production of evidence; or
410 (c) require both the attendance of a witness and the production of evidence.
411 (2) The commission shall issue a subpoena:
412 (a) in accordance with Section 11-49-405 ;
413 (b) at the direction of the commission chair, if the chair determines that the testimony
414 or evidence is relevant to the review of a complaint under Part 7, Commission Review of
415 Ethics Violations; or
416 (c) upon a vote of a majority of the commission members.
417 (3) If the commission issues a subpoena authorized under this section, the commission
418 shall give a reasonable period of time for the person or entity to whom the subpoena is directed
419 to petition a district court to quash or modify the subpoena before the time specified in the
420 subpoena for compliance.
421 Section 12. Section 11-49-404 is enacted to read:
422 11-49-404. Contempt of the commission.
423 (1) (a) The following actions constitute contempt of the commission in relation to
424 actions and proceedings under this chapter:
425 (i) disobedience to a direction of the commission chair;
426 (ii) failure, without legal justification, to answer a question during a hearing when
427 directed to do so by:
428 (A) the commission chair, unless the direction is overridden by the commission in
429 accordance with Section 11-49-402 ; or
430 (B) a majority of the commission;
431 (iii) failure to comply with a subpoena or other order issued under authority of this
432 chapter;
433 (iv) violation of privacy provisions established by Section 11-49-502 ;
434 (v) violation of the communication provisions established by Section 11-49-407 ;
435 (vi) violation of a request to comply with a provision of this chapter by a chair or a
436 majority of the members of the commission; or
437 (vii) any other ground that is specified in statute or recognized by common law.
438 (b) Because the purpose of the Fifth Amendment privilege not to incriminate oneself is
439 to prevent prosecution for criminal action, it is improper for a witness to invoke the Fifth
440 Amendment privilege if the witness cannot be prosecuted for the crime to which the witness's
441 testimony relates.
442 (2) (a) The following persons may authorize an enforcement action against a person in
443 contempt of the commission under the provisions of this chapter:
444 (i) the commission chair, subject to the provisions of Section 11-49-402 ; or
445 (ii) members of the commission, by means of a majority vote.
446 (b) In initiating and pursuing an action against an individual for contempt of the
447 commission, the plaintiff shall comply with the procedures and requirements of Section
448 11-49-405 .
449 Section 13. Section 11-49-405 is enacted to read:
450 11-49-405. Order to compel -- Enforcement.
451 (1) (a) When the subject of a subpoena issued in accordance with Section 11-49-403
452 disobeys or fails to comply with the subpoena, or if a person appears before the commission
453 pursuant to a subpoena and refuses to testify to a matter upon which the person may be lawfully
454 interrogated, the commission may:
455 (i) file a motion for an order to compel obedience to the subpoena with the district
456 court within the jurisdiction of the applicable political subdivision;
457 (ii) file, with the district court, a motion for an order to show cause why the penalties
458 established in Title 78B, Chapter 6, Part 3, Contempt, should not be imposed upon the person
459 named in the subpoena for contempt of the commission; or
460 (iii) pursue other remedies against persons in contempt of the commission.
461 (b) (i) Upon receipt of a motion under this section, the court shall expedite the hearing
462 and decision on the motion.
463 (ii) A court may:
464 (A) order the person named in the subpoena to comply with the subpoena; and
465 (B) impose any penalties authorized by Title 78B, Chapter 6, Part 3, Contempt, upon
466 the person named in the subpoena for contempt of the commission.
467 (2) (a) If a commission subpoena requires the production of accounts, books, papers,
468 documents, or other tangible things, the person or entity to whom the subpoena is directed may
469 petition a district court to quash or modify the subpoena at or before the time specified in the
470 subpoena for compliance.
471 (b) The commission may respond to a motion to quash or modify the subpoena by
472 pursuing any remedy authorized by Subsection (1).
473 (c) If the court finds that a commission subpoena requiring the production of accounts,
474 books, papers, documents, or other tangible things is unreasonable or oppressive, the court may
475 quash or modify the subpoena.
476 (3) Nothing in this section prevents the commission from seeking an extraordinary writ
477 to remedy contempt of the commission.
478 (4) Any party aggrieved by a decision of a court under this section may appeal that
479 action directly to the Utah Supreme Court.
480 Section 14. Section 11-49-406 is enacted to read:
481 11-49-406. Testimony and examination of witnesses -- Oath -- Procedure --
482 Contempt.
483 (1) (a) The chair shall ensure that each witness listed in the complaint and response is
484 subpoenaed for appearance at the hearing unless:
485 (i) the witness is unable to be properly identified or located; or
486 (ii) service is otherwise determined to be impracticable.
487 (b) The chair shall determine the scheduling and order of witnesses and presentation of
488 evidence.
489 (c) The commission may, by majority vote:
490 (i) overrule the chair's decision not to subpoena a witness under Subsection (1)(a);
491 (ii) modify the chair's determination on the scheduling and order of witnesses under
492 Subsection (1)(b);
493 (iii) decline to hear or call a witness that has been requested by the complainant or
494 respondent;
495 (iv) decline to review or consider evidence submitted in relation to an ethics complaint;
496 or
497 (v) request and subpoena witnesses or evidence according to the procedures of Section
498 11-49-403 .
499 (2) (a) Each witness shall testify under oath.
500 (b) The chair or the chair's designee shall administer the oath to each witness.
501 (3) After the oath has been administered to the witness, the chair shall direct testimony
502 as follows:
503 (a) allow the party that has called the witness, or that party's counsel, to question the
504 witness;
505 (b) allow the opposing party, or that party's counsel, to cross-examine the witness;
506 (c) allow additional questioning by a party or a party's counsel as appropriate;
507 (d) give commission members the opportunity to question the witness; and
508 (e) as appropriate, allow further examination of the witness by the commission, or the
509 parties or their counsel.
510 (4) (a) If the witness, a party, or a party's counsel objects to a question, the chair shall:
511 (i) direct the witness to answer; or
512 (ii) rule that the witness is not required to answer the question.
513 (b) If the witness declines to answer a question after the chair or a majority of the
514 commission determines that the witness is required to answer the question, the witness may be
515 held in contempt as provided in Section 11-49-404 .
516 (5) (a) The chair or a majority of the members of the commission may direct a witness
517 to furnish any relevant evidence for consideration if the witness has brought the material
518 voluntarily or has been required to bring it by subpoena.
519 (b) If the witness declines to provide evidence in response to a subpoena, the witness
520 may be held in contempt as provided in Section 11-49-404 .
521 Section 15. Section 11-49-407 is enacted to read:
522 11-49-407. Communications of commission members.
523 (1) As used in this section, "third party" means a person who is not a member of the
524 commission or staff to the commission.
525 (2) While a complaint is under review by the commission, a member of the
526 commission may not initiate or consider any communications concerning the complaint with a
527 third party unless:
528 (a) the communication is expressly permitted under the procedures established by this
529 chapter; or
530 (b) the communication is made by the third party, in writing, simultaneously to:
531 (i) all members of the commission; and
532 (ii) a staff member of the commission.
533 (3) While the commission is reviewing a complaint under this chapter, a commission
534 member may communicate outside of the meetings, hearing, or deliberations with another
535 member of, or staff to, the commission, only if the member's communication does not
536 materially compromise the member's responsibility to independently review and make
537 decisions in relation to the complaint.
538 Section 16. Section 11-49-408 is enacted to read:
539 11-49-408. Attorney fees and costs.
540 (1) A person filing a complaint under this chapter:
541 (a) may, but is not required to, retain legal representation during the complaint review
542 process; and
543 (b) is responsible for payment of complainant's attorney fees and costs incurred.
544 (2) (a) A respondent against whom a complaint is filed under this chapter:
545 (i) may, but is not required to, retain legal representation during the complaint review
546 process; and
547 (ii) is responsible for the respondent's own attorney fees and costs involved, except as
548 provided in Subsection (2)(b).
549 (b) A political subdivision for which the respondent is a political subdivision officer or
550 employee shall pay the reasonable attorney fees and costs incurred by the respondent against
551 whom a complaint is filed under this chapter if the commission determines that none of the
552 allegations in the complaint have been proved.
553 (3) (a) An attorney participating in a hearing before the commission shall comply with:
554 (i) the Rules of Professional Conduct established by the Utah Supreme Court;
555 (ii) the procedures and requirements of this chapter; and
556 (iii) the directions of the chair and commission.
557 (b) A violation of Subsection (3)(a) may constitute:
558 (i) contempt of the commission under Section 11-49-404 ; or
559 (ii) a violation of the Rules of Professional Conduct subject to enforcement by the Utah
560 State Bar.
561 Section 17. Section 11-49-501 is enacted to read:
562
563 11-49-501. Ethics complaints -- Who may file -- Form.
564 (1) (a) Notwithstanding any other provision, the following may file a complaint,
565 subject to the requirements of Subsections (1)(b) and (c) and Section 11-49-301 , against a
566 political subdivision officer or employee:
567 (i) two or more registered voters who reside within the boundaries of a political
568 subdivision;
569 (ii) two or more registered voters who pay a fee or tax to a political subdivision; or
570 (iii) one or more registered voters who reside within the boundaries of a political
571 subdivision and one or more registered voters who pay a fee or tax to the political subdivision.
572 (b) A person described in Subsection (1)(a) may not file a complaint unless at least one
573 person described in Subsection (1)(a)(i), (ii), or (iii) has actual knowledge of the facts and
574 circumstances supporting the alleged violation.
575 (c) A complainant may file a complaint only against an individual who, on the date that
576 the complaint is filed, is serving as a political subdivision officer or is a political subdivision
577 employee.
578 (2) (a) (i) A complainant shall file a complaint with the Office of the Lieutenant
579 Governor.
580 (ii) The lieutenant governor shall forward the complaint to the chair of the commission
581 no later than five days after the day on which the complaint is filed.
582 (b) An individual may not file a complaint during the 60 calendar days immediately
583 preceding:
584 (i) a regular primary election, if the accused political subdivision officer is a candidate
585 in the primary election; or
586 (ii) a regular general election in which an accused political subdivision officer is a
587 candidate, unless the accused political subdivision officer is unopposed in the election.
588 (3) A complainant shall ensure that each complaint filed under this section is in writing
589 and contains the following information:
590 (a) the name and position of the political subdivision officer or employee alleged to be
591 in violation;
592 (b) the name, address, and telephone number of each individual who is filing the
593 complaint;
594 (c) a description of each alleged violation, including for each alleged violation:
595 (i) a reference to the section of the code alleged to have been violated;
596 (ii) the name of the complainant who has actual knowledge of the facts and
597 circumstances supporting each allegation; and
598 (iii) with reasonable specificity, the facts and circumstances supporting each allegation,
599 which shall be provided by:
600 (A) copies of official records or documentary evidence; or
601 (B) one or more affidavits that include the information required in Subsection (4);
602 (d) a list of the witnesses that a complainant wishes to have called, including for each
603 witness:
604 (i) the name, address, and, if available, one or more telephone numbers of the witness;
605 (ii) a brief summary of the testimony to be provided by the witness; and
606 (iii) a specific description of any documents or evidence a complainant desires the
607 witness to produce;
608 (e) a statement that each complainant:
609 (i) has reviewed the allegations contained in the complaint and the sworn statements
610 and documents attached to the complaint;
611 (ii) believes that the complaint is submitted in good faith and not for any improper
612 purpose such as for the purpose of harassing the respondent, causing unwarranted harm to the
613 respondent's reputation, or causing unnecessary expenditure of public funds; and
614 (iii) believes the allegations contained in the complaint to be true and accurate; and
615 (f) the signature of each complainant.
616 (4) An affidavit described in Subsection (3)(c)(iii)(B) shall include:
617 (a) the name, address, and telephone number of the signer;
618 (b) a statement that the signer has actual knowledge of the facts and circumstances
619 alleged in the affidavit;
620 (c) the facts and circumstances testified by the signer;
621 (d) a statement that the affidavit is believed to be true and correct and that false
622 statements are subject to penalties of perjury; and
623 (e) the signature of the signer.
624 Section 18. Section 11-49-502 is enacted to read:
625 11-49-502. Privacy of ethics complaint -- Contempt -- Enforcement of finding of
626 contempt -- Dismissal.
627 (1) (a) Except as provided in Subsection (1)(b) or (c), a person, including a
628 complainant, the respondent, a commission member, or staff to the commission, may not
629 disclose the existence of a complaint, a response, nor any information concerning any alleged
630 violation that is the subject of a complaint:
631 (i) unless otherwise provided in this chapter; or
632 (ii) after a complaint is presented at the meeting described in Section 11-49-701 .
633 (b) The restrictions in Subsection (1)(a) do not apply to the respondent's voluntary
634 disclosure of a finding by the commission that no allegations in a complaint were proved, after
635 that finding is issued by the commission under the procedures and requirements of Section
636 11-49-602 .
637 (c) Nothing in this section shall prevent a person from disclosing facts or allegations
638 about potential criminal violations to a law enforcement authority.
639 (d) Nothing in this section may be construed to hinder or prevent a respondent from
640 preparing a defense to a complaint, including contacting a witness or other actions in
641 preparation for review by the commission.
642 (2) A person who violates the provisions of Subsection (1)(a) is in contempt of the
643 commission and proceedings may be initiated to enforce the finding of contempt using the
644 procedures provided in Sections 11-49-404 and 11-49-405 .
645 (3) If the existence of an ethics complaint is publicly disclosed before or during the
646 preliminary review period described in Section 11-49-602 , the complaint shall be summarily
647 dismissed without prejudice.
648 Section 19. Section 11-49-601 is enacted to read:
649
650 11-49-601. Review of ethics complaint for compliance with form requirements --
651 Independent requirements for complaint-- Notice.
652 (1) Within five business days after receipt of a complaint, the staff of the commission,
653 in consultation with the chair of the commission, shall examine the complaint to determine if it
654 is in compliance with Sections 11-49-301 and 11-49-501 .
655 (2) (a) If the chair determines that the complaint does not comply with Sections
656 11-49-301 and 11-49-501 , the chair shall:
657 (i) return the complaint to the first complainant named on the complaint with:
658 (A) a statement detailing the reason for the non-compliance; and
659 (B) a copy of the applicable provisions in this chapter; and
660 (ii) notify the applicable political subdivision governing body that:
661 (A) a complaint was filed against an unidentified political subdivision officer or
662 employee but was returned for non-compliance with this chapter; and
663 (B) the fact that a complaint was filed and returned shall be kept confidential until the
664 commission submits its annual summary data report as required by Section 11-49-202 .
665 (b) If a complaint is returned for non-compliance with the requirements of this chapter,
666 a complainant may file another complaint if the new complaint independently meets the
667 requirements of Sections 11-49-301 and 11-49-501 , including any requirements for timely
668 filing.
669 (3) If the chair determines that the complaint complies with the requirements of this
670 section, the chair shall:
671 (a) accept the complaint;
672 (b) notify each member of the commission that the complaint has been filed and
673 accepted;
674 (c) notify the applicable political subdivision that:
675 (i) a complaint has been filed against an unidentified political subdivision officer or
676 employee;
677 (ii) the identity of the political subdivision officer or employee and the allegations
678 raised in the complaint are confidential pending the commission's preliminary review of the
679 complaint; and
680 (iii) the fact that a complaint was filed shall be kept confidential until the commission
681 publicly discloses the existence of the complaint via:
682 (A) notice of the commission's review of a complaint in accordance with Section
683 11-49-701 ; or
684 (B) submission of the commission's annual summary data report as required in Section
685 11-49-202 ; and
686 (d) promptly forward the complaint to the political subdivision officer or employee
687 who is the subject of the ethics complaint via personal delivery or a delivery method that
688 provides verification of receipt, together with a copy of this chapter and notice of the officer's
689 or employee's deadline for filing a response to the complaint if the complaint is not dismissed
690 under Section 11-49-602 .
691 Section 20. Section 11-49-602 is enacted to read:
692 11-49-602. Preliminary review of complaint -- Standard of proof -- Notice.
693 (1) (a) By no later than 10 calendar days after the day on which a complaint is accepted
694 under Section 11-49-601 , the commission chair shall:
695 (i) schedule a commission meeting on a date no later than 60 calendar days after the
696 date on which the commission accepts the complaint;
697 (ii) place the complaint on the agenda for consideration at the meeting;
698 (iii) provide a copy of the complaint to the members; and
699 (iv) provide notice of the date, time, and location of the meeting:
700 (A) to the respondent;
701 (B) the first complainant named in the complaint;
702 (C) each commission member; and
703 (D) in accordance with Section 52-4-202 .
704 (b) The meeting described in Subsection (1)(a)(ii) is closed to the public in accordance
705 with Section 52-4-204 .
706 (2) (a) At the meeting described in Subsection (1)(a)(i):
707 (i) the commission members shall review each allegation in the complaint;
708 (ii) the commission may not receive testimony, hear a motion from a party, or admit
709 evidence; and
710 (iii) the chair shall conduct deliberations.
711 (b) The commission may, if necessary:
712 (i) request a formal response or affidavit from a respondent; and
713 (ii) review the response or affidavit at the meeting.
714 (c) Upon a motion made by a commission member, the commission may exclude
715 commission staff from all or a portion of the deliberations by a majority vote.
716 (3) (a) During deliberations, each commission member shall, for each allegation,
717 determine:
718 (i) whether the facts alleged, if true, would be an ethics violation;
719 (ii) whether the complaint includes an affidavit from a person with firsthand
720 knowledge of alleged facts described in Subsection (3)(a)(i); and
721 (iii) whether the complaint is frivolous or solely for a political purpose.
722 (b) A commission member shall vote to forward an allegation in a complaint for a final
723 commission review in accordance with Part 7, Commission Review of Ethics Violation, if the
724 commission member determines:
725 (i) an allegation, if true, would be an ethics violation;
726 (ii) the complaint contains an affidavit with firsthand knowledge of the allegation
727 under Subsection (3)(a)(ii); and
728 (iii) the allegation is not frivolous or solely for a political purpose.
729 (4) (a) A verbal roll call vote shall be taken on each allegation and each member's vote
730 shall be recorded.
731 (b) The commission may not review an allegation for a final determination under Part
732 7, Commission Review of Ethics Violation, unless six of the seven members of the
733 commission vote to review the allegation.
734 (5) (a) An allegation that is not forwarded for a final determination is dismissed.
735 (b) Before the commission issues an order in accordance with this section, the
736 commission may, upon a majority vote, reconsider and hold a new vote on an allegation.
737 (c) A motion to reconsider a vote may only be made by a member of the commission
738 who voted that the allegation should not be forwarded for a final determination.
739 (6) (a) If each allegation stated in a complaint is dismissed in accordance with this
740 section, the commission shall:
741 (i) issue and enter into the record an order that the complaint is dismissed because no
742 allegations, in accordance with this section, were forwarded for a final determination;
743 (ii) classify all recordings, testimony, evidence, orders, findings, and other records
744 directly relating to the meetings authorized by this part as private records under Section
745 63G-2-302 ;
746 (iii) provide notice of the determination, in a manner determined by the chair, to:
747 (A) the respondent;
748 (B) the first complainant named on the complaint; and
749 (C) subject to Subsection (6)(b), the appropriate political subdivision; and
750 (iv) provide notice to each person or entity named in Subsections (6)(a)(iii)(A) through
751 (C) that, under provisions of Section 11-49-502 and other provisions of this chapter, a person
752 who discloses the findings of the commission in violation of any provision of this chapter is in
753 contempt of the commission and is subject to penalties for contempt.
754 (b) The notification to the appropriate political subdivision shall notify the political
755 subdivision that:
756 (i) a complaint against an unidentified political subdivision officer or employee has
757 been dismissed; and
758 (ii) the fact that a complaint was filed shall be kept confidential until the commission
759 publicly discloses the existence of the complaint via submission of the commission's annual
760 summary data report as required in Section 11-49-202 .
761 (7) If one or more of the allegations stated in a complaint are not dismissed in
762 accordance with this section, the commission shall:
763 (a) issue and enter into the record:
764 (i) an order for each allegation that is dismissed, if any, because the allegation was not
765 forwarded for a final determination; and
766 (ii) an order for further review under Part 7, Commission Review of Ethics Violation,
767 of each allegation that is not dismissed;
768 (b) classify all recordings, orders, findings, and other records or documents directly
769 relating to a meeting authorized by this section as private records under Section 63G-2-302 ;
770 (c) if an allegation was dismissed, provide notice of the determination for each
771 allegation dismissed in a manner determined by the chair, to:
772 (i) the respondent;
773 (ii) the first complainant named on the complaint; and
774 (iii) subject to Subsection (8), the appropriate political subdivision; and
775 (d) provide notice to each person or entity named in Subsections (7)(c)(i) through (iii)
776 that:
777 (i) under provisions of Section 11-49-502 and other provisions of this chapter, a person
778 who discloses the findings of the commission under this section in violation of any provision of
779 this chapter is in contempt of the commission and is subject to penalties for contempt; and
780 (ii) the commission shall review the remaining allegations in the complaint at a
781 meeting described in Section 11-49-603 and in accordance with Part 7, Commission Review of
782 Ethics Violation.
783 (8) The notification to the appropriate political subdivision shall notify the political
784 subdivision that:
785 (a) an unspecified allegation in a complaint against an unidentified political
786 subdivision officer or employee has been dismissed; and
787 (b) the fact that a complaint was filed shall be kept confidential until the commission
788 publicly discloses the existence of the complaint in accordance with the provisions of this
789 chapter.
790 (9) For a complaint described in Subsection (7), the commission members shall ensure
791 that, within five business days after the day of the meeting described in Subsection (1)(a)(ii),
792 the complaint is redacted to remove references to an allegation that is dismissed under this
793 section.
794 (10) The chair shall ensure that a record of the meeting held under this section is kept
795 in accordance with Section 11-49-702 .
796 Section 21. Section 11-49-603 is enacted to read:
797 11-49-603. Meeting of the Commission to review a complaint -- Procedures.
798 By no later than 10 calendar days after the day on which a complaint is accepted under
799 Section 11-49-602 for further review, the commission chair shall:
800 (1) schedule a commission meeting on a date no later than 45 calendar days after the
801 date on which the commission accepts the complaint;
802 (2) place the complaint on the agenda for consideration at the meeting described in
803 Subsection (1);
804 (3) provide notice of the date, time, and location of the meeting:
805 (a) to:
806 (i) the members of the commission;
807 (ii) the first complainant named in the complaint; and
808 (iii) the respondent; and
809 (b) in accordance with Section 52-4-202 ; and
810 (4) provide a copy of the complaint or redacted complaint, as required in Section
811 11-49-602 , to each member of the commission.
812 Section 22. Section 11-49-604 is enacted to read:
813 11-49-604. Response to ethics complaint -- Filing -- Form.
814 (1) The political subdivision officer or employee who is the subject of the complaint
815 may file a response to the complaint no later than 30 days after the day on which the officer or
816 employee receives delivery of an order issued by the commission under Subsection
817 11-49-602 (7).
818 (2) The respondent shall file the response with the commission and ensure that the
819 response is in writing and contains the following information:
820 (a) the name, address, and telephone number of the respondent;
821 (b) for each alleged violation in the complaint:
822 (i) each affirmative defense asserted in response to the allegation, including a general
823 description of each affirmative defense and the facts and circumstances supporting the defense
824 to be provided by one or more affidavits, each of which shall comply with Subsection (4);
825 (ii) the facts and circumstances refuting the allegation, which shall be provided by:
826 (A) copies of official records or documentary evidence; or
827 (B) one or more affidavits, each of which shall comply with Subsection (4);
828 (c) a list of the witnesses that the respondent wishes to have called, including for each
829 witness:
830 (i) the name, address, and, if available, telephone number of the witness;
831 (ii) a brief summary of the testimony to be provided by the witness; and
832 (iii) a specific description of any documents or evidence the respondent desires the
833 witness to produce;
834 (d) a statement that the respondent:
835 (i) has reviewed the allegations contained in the complaint and the sworn statements
836 and documents attached to the response; and
837 (ii) believes the contents of the response to be true and accurate; and
838 (e) the signature of the respondent.
839 (3) Promptly after receiving the response, the commission shall provide copies of the
840 response to:
841 (a) each member of the commission; and
842 (b) the first named complainant on the complaint.
843 (4) An affidavit described in Subsection (2)(b)(i) or (2)(b)(ii)(B) shall include the
844 following information:
845 (a) the name, address, and telephone number of the signer;
846 (b) a statement that the signer has actual knowledge of the facts and circumstances
847 alleged in the affidavit;
848 (c) the facts and circumstances testified to by the signer;
849 (d) a statement that the affidavit is believed to be true and correct and that false
850 statements are subject to penalties of perjury; and
851 (e) the signature of the signer.
852 Section 23. Section 11-49-701 is enacted to read:
853
854 11-49-701. Commission review of ethics violation.
855 (1) The scope of a review by the commission is limited to an alleged violation stated in
856 a complaint that has not been previously dismissed under Section 11-49-602 .
857 (2) (a) Before holding the meeting for review of the complaint, the commission chair
858 may schedule a separate meeting of the commission for the purposes of:
859 (i) hearing motions or arguments from the parties, including hearing motions or
860 arguments relating to dismissal of a complaint, admission of evidence, or procedures;
861 (ii) holding a vote of the commission, with or without the attendance of the parties, on
862 procedural or commission business matters relating to a complaint; or
863 (iii) reviewing a complaint, with or without the attendance of the parties, to determine
864 if the complaint should be dismissed in whole or in part, by means of a majority vote of the
865 commission, because the complaint pleads facts or circumstances against a political
866 subdivision officer or employee that have already been reviewed by, as provided in Section
867 11-49-301 , the commission, a municipal ethics commission established in accordance with
868 Section 10-3-1311 , a county ethics commission established in accordance with Section
869 17-16a-11 , or a local political subdivision ethics commission established in accordance with
870 Section 11-49-103 .
871 (b) Notwithstanding Section 11-49-603 , the commission may, by a majority vote,
872 change the date of the meeting for review of the complaint in order to accommodate:
873 (i) a meeting authorized under Subsection (2)(a); or
874 (ii) necessary scheduling requirements.
875 (3) (a) The commission shall comply with the Utah Rules of Evidence except where
876 the commission determines, by majority vote, that a rule is not compatible with the
877 requirements of this chapter.
878 (b) The chair shall make rulings on admissibility of evidence consistent with the
879 provisions of Section 11-49-402 .
880 (4) (a) A meeting or hearing authorized in this part is open to the public except as
881 provided in Section 52-4-204 .
882 (b) The following individuals may be present during the presentation of testimony and
883 evidence to the commission:
884 (i) the complainant;
885 (ii) the complainant's counsel, if applicable;
886 (iii) the respondent;
887 (iv) the respondent's counsel, if applicable;
888 (v) members of the commission;
889 (vi) staff to the commission;
890 (vii) a witness, while testifying before the commission; and
891 (viii) necessary security personnel.
892 (c) The commission may, in accordance with Section 52-4-204 , close a meeting to:
893 (i) seek or obtain legal advice on legal, evidentiary, or procedural matters; or
894 (ii) conduct deliberations to reach a decision on the complaint.
895 (5) If a majority of the commission determines that a continuance is necessary to obtain
896 further evidence and testimony, to accommodate administrative needs, or to accommodate the
897 attendance of commission members, witnesses, or a party, the commission shall:
898 (a) adjourn and continue the meeting to a future date and time after notice to the
899 parties; and
900 (b) establish that future date and time by majority vote.
901 (6) A document created by the commission under this part, reviewed by the
902 commission under this part, or received by the commission under this part is a public
903 document.
904 Section 24. Section 11-49-702 is enacted to read:
905 11-49-702. Record -- Recording of meetings.
906 (1) (a) Except as provided in Subsection (1)(b), an individual may not use a camera or
907 other recording device in a meeting authorized by this part.
908 (b) (i) The commission shall keep an audio or video recording of all portions of each
909 meeting authorized by this part.
910 (ii) The commission may, by a majority vote of the commission, permit a camera or
911 other recording device in the meeting in which the commission releases the commission's
912 recommendation under this part.
913 (2) In addition to the recording required in Subsection (1), the chair shall ensure that a
914 record of the meeting or hearing is made, which shall include:
915 (a) official minutes taken during the meeting or hearing, if any;
916 (b) copies of all documents or other items admitted into evidence by the commission;
917 (c) copies of a document or written order or ruling issued by the chair or the
918 commission; and
919 (d) any other information that a majority of the commission or the chair directs.
920 Section 25. Section 11-49-703 is enacted to read:
921 11-49-703. Commission deliberations -- Standard of proof.
922 (1) After each party has presented a closing argument, the commission shall, at the
923 direction of the chair, begin its deliberations:
924 (a) immediately after conclusion of the closing arguments; or
925 (b) at a future meeting of the commission, on a date and time determined by a majority
926 of the members of the commission.
927 (2) (a) The chair of the commission shall conduct the deliberations.
928 (b) Upon a motion made by a commission member, the commission may:
929 (i) exclude commission staff from all or a portion of the deliberations by a majority
930 vote of the commission; or
931 (ii) close the meeting in accordance with Section 52-4-204 .
932 (3) (a) During deliberations, for each allegation reviewed by the commission, each
933 member shall determine and cast a vote stating:
934 (i) whether the allegation is:
935 (A) proven by clear and convincing evidence; or
936 (B) not proven; and
937 (ii) for each allegation proven, whether the commission would recommend to the
938 appropriate political subdivision governing body to take one or more of the following actions:
939 (A) censure;
940 (B) in the case of a political subdivision employee, termination;
941 (C) in the case of a political subdivision officer, removal from office; or
942 (D) any other action or reprimand that the commission determines is appropriate.
943 (b) (i) A verbal roll call vote shall be taken on each allegation, and each recommended
944 action described in Subsection (3)(a)(ii) on each allegation.
945 (ii) Each member's vote shall be recorded.
946 (4) (a) An allegation is not considered to be proven unless six of the seven members of
947 the commission vote that the allegation is proven.
948 (b) An allegation that is not considered to be proven is dismissed.
949 (c) (i) Before the commission issues its recommendation in accordance with Section
950 11-49-704 , the commission may, upon a majority vote, reconsider and hold a new vote on an
951 allegation.
952 (ii) A motion to reconsider a vote may only be made by a member of the commission
953 who voted that the allegation was not proved.
954 (5) At the conclusion of deliberations, the commission shall prepare its
955 recommendations as provided in Sections 11-49-704 and 11-49-705 .
956 Section 26. Section 11-49-704 is enacted to read:
957 11-49-704. Recommendations of commission.
958 (1) (a) If the commission determines that no allegations in the complaint were proved,
959 the commission shall:
960 (i) issue and enter into the record an order that the complaint is dismissed because no
961 allegations in the complaint were found to have been proved;
962 (ii) provide notice of the determination at a public meeting; and
963 (iii) provide written notice of the determination to:
964 (A) the respondent;
965 (B) the first complainant named on the complaint; and
966 (C) the appropriate political subdivision.
967 (2) If the commission determines that one or more of the allegations in the complaint
968 were proved, the commission shall:
969 (a) if one or more allegations were not found to have been proven, enter into the record
970 an order dismissing those unproven allegations; and
971 (b) prepare a written recommendation to the applicable political subdivision governing
972 body that:
973 (i) lists the name of each complainant;
974 (ii) lists the name of the respondent;
975 (iii) states the date of the recommendation;
976 (iv) for each allegation that was found to be proven:
977 (A) provides a reference to the statute or criminal provision allegedly violated;
978 (B) states the number and names of commission members voting that the allegation
979 was proved and the number and names of commission members voting that the allegation was
980 not proved;
981 (C) at the option of those members voting that the allegation was proved, includes a
982 statement by one or all of those members stating the reasons for voting that the allegation was
983 proved; and
984 (D) at the option of those members voting that the allegation was not proved, includes
985 a statement by one or all of those members stating the reasons for voting that the allegation was
986 not proved;
987 (v) contains any general statement that is adopted for inclusion in the recommendation
988 by a majority of the members of the commission;
989 (vi) contains a statement referring the allegations found to have been proved to the
990 appropriate political subdivision governing body for review and, if necessary, further action;
991 (vii) contains a statement referring to each allegation the commission's
992 recommendation under Subsection 11-49-703 (3)(a)(ii);
993 (viii) states the name of each member of the commission; and
994 (ix) is signed by each commission member.
995 (3) The commission shall provide notice of the determination:
996 (a) at a public meeting; and
997 (b) in writing to:
998 (i) the respondent;
999 (ii) the first complainant named on the complaint; and
1000 (iii) in accordance with Subsection (4), the appropriate political subdivision.
1001 (4) The commission shall ensure that, within five business days of the date of public
1002 issuance of the determination in accordance with Subsection (3), the following documents are
1003 provided to the political subdivision governing body:
1004 (a) a cover letter referring the proven allegations contained in the complaint to the
1005 political subdivision governing body for review;
1006 (b) a copy of the complaint;
1007 (c) a copy of the response; and
1008 (d) a copy of the commission's recommendation.
1009 Section 27. Section 11-49-705 is enacted to read:
1010 11-49-705. Criminal allegation -- Recommendation to county or district attorney.
1011 (1) If the commission finds that a political subdivision officer or employee allegedly
1012 violated a criminal provision, the commission shall, in addition to sending a recommendation
1013 to a political subdivision governing body in accordance with Section 11-49-704 , send a
1014 recommendation for further investigation to the county or district attorney of jurisdiction by
1015 delivering to the county or district attorney a written recommendation that:
1016 (a) lists the name of each complainant;
1017 (b) lists the name of the respondent;
1018 (c) states the date of the recommendation;
1019 (d) for each allegation of a criminal violation, provide a reference to the criminal
1020 provision allegedly violated;
1021 (e) includes a general statement that is adopted by a majority of the members of the
1022 commission; and
1023 (f) gives the name of the political subdivision governing body that the commission sent
1024 a recommendation to in accordance with Section 11-49-704 .
1025 (2) If the commission sends a recommendation in accordance with Subsection (1)(a),
1026 the commission shall enter into the record:
1027 (a) a copy of the recommendation; and
1028 (b) the name of the county or district attorney of jurisdiction to whom it was sent.
1029 (3) A recommendation prepared and delivered in accordance with this section is a
1030 public record.
1031 Section 28. Section 11-49-706 is enacted to read:
1032 11-49-706. Action by political subdivision governing body.
1033 A political subdivision governing body that receives a recommendation in accordance
1034 with Section 11-49-704 shall:
1035 (1) review the recommendation; and
1036 (2) take further action in accordance with a political subdivision's governing ordinance,
1037 bylaws, or other applicable governing rule.
1038 Section 29. Section 17-16a-11 is amended to read:
1039 17-16a-11. County ethics commission -- Complaints charging violations --
1040 Procedure.
1041 (1) A county may establish by ordinance an ethics commission to review a complaint,
1042 except as provided in Subsection (3), against an officer or employee subject to this part for a
1043 violation of a provision of this part.
1044 (2) (a) Except as provided in Subsection (3), a person filing a complaint for a violation
1045 of this part may file the complaint:
1046 (i) with the county ethics commission, if the county has established a county ethics
1047 commission in accordance with Subsection (1); or
1048 (ii) with the Political Subdivisions Ethics Review Commission established in
1049 accordance with Title 11, Chapter 49, Political Subdivisions Ethics Review Commission.
1050 (b) A county that receives a complaint described in Subsection (2)(a) may:
1051 (i) accept the complaint if the county has established a county ethics commission in
1052 accordance with Subsection (1); or
1053 (ii) forward the complaint to the Political Subdivisions Ethics Review Commission
1054 established in Section 11-49-201 :
1055 (A) regardless of whether the county has established a county ethics commission; or
1056 (B) if the county has not established a county ethics commission.
1057 [
1058 person with a violation of this part, shall be filed and processed in accordance with the
1059 provisions of the merit system.
1060 [
1061
1062
1063
1064
1065
1066 Section 30. Section 52-4-204 is amended to read:
1067 52-4-204. Closed meeting held upon vote of members -- Business -- Reasons for
1068 meeting recorded.
1069 (1) A closed meeting may be held if:
1070 (a) (i) a quorum is present;
1071 (ii) the meeting is an open meeting for which notice has been given under Section
1072 52-4-202 ; and
1073 (iii) (A) two-thirds of the members of the public body present at the open meeting vote
1074 to approve closing the meeting;
1075 (B) for a meeting that is required to be closed under Section 52-4-205 , if a majority of
1076 the members of the public body present at an open meeting vote to approve closing the
1077 meeting; [
1078 (C) for an ethics committee of the Legislature that is conducting an open meeting for
1079 the purpose of reviewing an ethics complaint, a majority of the members present vote to
1080 approve closing the meeting for the purpose of seeking or obtaining legal advice on legal,
1081 evidentiary, or procedural matters, or for conducting deliberations to reach a decision on the
1082 complaint; or
1083 (D) for the Political Subdivisions Ethics Review Commission established in Section
1084 11-49-201 that is conducting an open meeting for the purpose of reviewing an ethics complaint
1085 in accordance with Section 11-49-701 , a majority of the members present vote to approve
1086 closing the meeting for the purpose of seeking or obtaining legal advice on legal, evidentiary,
1087 or procedural matters, or for conducting deliberations to reach a decision on the complaint; or
1088 (b) (i) for the Independent Legislative Ethics Commission, the closed meeting is
1089 convened for the purpose of conducting business relating to the receipt or review of an ethics
1090 complaint, provided that public notice of the closed meeting is given under Section 52-4-202 ,
1091 with the agenda for the meeting stating that the meeting will be closed for the purpose of
1092 "conducting business relating to the receipt or review of ethics complaints"[
1093 (ii) for the Political Subdivisions Ethics Review Commission established in Section
1094 11-49-201 , the closed meeting is convened for the purpose of conducting business relating to
1095 the preliminary review of an ethics complaint in accordance with Section 11-49-602 , provided
1096 that public notice of the closed meeting is given under Section 52-4-202 , with the agenda for
1097 the meeting stating that the meeting will be closed for the purpose of "conducting business
1098 relating to the review of ethics complaints".
1099 (2) A closed meeting is not allowed unless each matter discussed in the closed meeting
1100 is permitted under Section 52-4-205 .
1101 (3) An ordinance, resolution, rule, regulation, contract, or appointment may not be
1102 approved at a closed meeting.
1103 (4) The following information shall be publicly announced and entered on the minutes
1104 of the open meeting at which the closed meeting was approved:
1105 (a) the reason or reasons for holding the closed meeting;
1106 (b) the location where the closed meeting will be held; and
1107 (c) the vote by name, of each member of the public body, either for or against the
1108 motion to hold the closed meeting.
1109 (5) Except as provided in Subsection 52-4-205 (2), nothing in this chapter shall be
1110 construed to require any meeting to be closed to the public.
1111 Section 31. Section 63G-2-302 is amended to read:
1112 63G-2-302. Private records.
1113 (1) The following records are private:
1114 (a) records concerning an individual's eligibility for unemployment insurance benefits,
1115 social services, welfare benefits, or the determination of benefit levels;
1116 (b) records containing data on individuals describing medical history, diagnosis,
1117 condition, treatment, evaluation, or similar medical data;
1118 (c) records of publicly funded libraries that when examined alone or with other records
1119 identify a patron;
1120 (d) records received by or generated by or for:
1121 (i) the Independent Legislative Ethics Commission, except for:
1122 (A) the commission's summary data report that is required under legislative rule; and
1123 (B) any other document that is classified as public under legislative rule; or
1124 (ii) a Senate or House Ethics Committee in relation to the review of ethics complaints,
1125 unless the record is classified as public under legislative rule;
1126 (e) records received or generated for a Senate confirmation committee concerning
1127 character, professional competence, or physical or mental health of an individual:
1128 (i) if prior to the meeting, the chair of the committee determines release of the records:
1129 (A) reasonably could be expected to interfere with the investigation undertaken by the
1130 committee; or
1131 (B) would create a danger of depriving a person of a right to a fair proceeding or
1132 impartial hearing; and
1133 (ii) after the meeting, if the meeting was closed to the public;
1134 (f) employment records concerning a current or former employee of, or applicant for
1135 employment with, a governmental entity that would disclose that individual's home address,
1136 home telephone number, Social Security number, insurance coverage, marital status, or payroll
1137 deductions;
1138 (g) records or parts of records under Section 63G-2-303 that a current or former
1139 employee identifies as private according to the requirements of that section;
1140 (h) that part of a record indicating a person's Social Security number or federal
1141 employer identification number if provided under Section 31A-23a-104 , 31A-25-202 ,
1142 31A-26-202 , 58-1-301 , 58-55-302 , 61-1-4 , or 61-2f-203 ;
1143 (i) that part of a voter registration record identifying a voter's driver license or
1144 identification card number, Social Security number, or last four digits of the Social Security
1145 number;
1146 (j) a record that:
1147 (i) contains information about an individual;
1148 (ii) is voluntarily provided by the individual; and
1149 (iii) goes into an electronic database that:
1150 (A) is designated by and administered under the authority of the Chief Information
1151 Officer; and
1152 (B) acts as a repository of information about the individual that can be electronically
1153 retrieved and used to facilitate the individual's online interaction with a state agency;
1154 (k) information provided to the Commissioner of Insurance under:
1155 (i) Subsection 31A-23a-115 (2)(a);
1156 (ii) Subsection 31A-23a-302 (3); or
1157 (iii) Subsection 31A-26-210 (3);
1158 (l) information obtained through a criminal background check under Title 11, Chapter
1159 40, Criminal Background Checks by Political Subdivisions Operating Water Systems;
1160 (m) information provided by an offender that is:
1161 (i) required by the registration requirements of Section 77-27-21.5 ; and
1162 (ii) not required to be made available to the public under Subsection 77-27-21.5 (27);
1163 (n) a statement and any supporting documentation filed with the attorney general in
1164 accordance with Section 34-45-107 , if the federal law or action supporting the filing involves
1165 homeland security;
1166 (o) electronic toll collection customer account information received or collected under
1167 Section 72-6-118 , including contact and payment information and customer travel data[
1168 (p) an email address provided by a military or overseas voter under Section
1169 20A-16-501 ; [
1170 (q) a completed military-overseas ballot that is electronically transmitted under Title
1171 20A, Chapter 16, Uniform Military and Overseas Voters Act[
1172 (r) records received by or generated by or for the Political Subdivision Ethics Review
1173 Commission established in Section 11-49-201 , except for:
1174 (i) the commission's summary data report that is required in Section 11-49-202 ; and
1175 (ii) any other document that is classified as public in accordance with Title 11, Chapter
1176 49, Political Subdivisions Ethics Review Commission.
1177 (2) The following records are private if properly classified by a governmental entity:
1178 (a) records concerning a current or former employee of, or applicant for employment
1179 with a governmental entity, including performance evaluations and personal status information
1180 such as race, religion, or disabilities, but not including records that are public under Subsection
1181 63G-2-301 (2)(b) or 63G-2-301 (3)(o), or private under Subsection (1)(b);
1182 (b) records describing an individual's finances, except that the following are public:
1183 (i) records described in Subsection 63G-2-301 (2);
1184 (ii) information provided to the governmental entity for the purpose of complying with
1185 a financial assurance requirement; or
1186 (iii) records that must be disclosed in accordance with another statute;
1187 (c) records of independent state agencies if the disclosure of those records would
1188 conflict with the fiduciary obligations of the agency;
1189 (d) other records containing data on individuals the disclosure of which constitutes a
1190 clearly unwarranted invasion of personal privacy;
1191 (e) records provided by the United States or by a government entity outside the state
1192 that are given with the requirement that the records be managed as private records, if the
1193 providing entity states in writing that the record would not be subject to public disclosure if
1194 retained by it; and
1195 (f) any portion of a record in the custody of the Division of Aging and Adult Services,
1196 created in Section 62A-3-102 , that may disclose, or lead to the discovery of, the identity of a
1197 person who made a report of alleged abuse, neglect, or exploitation of a vulnerable adult.
1198 (3) (a) As used in this Subsection (3), "medical records" means medical reports,
1199 records, statements, history, diagnosis, condition, treatment, and evaluation.
1200 (b) Medical records in the possession of the University of Utah Hospital, its clinics,
1201 doctors, or affiliated entities are not private records or controlled records under Section
1202 63G-2-304 when the records are sought:
1203 (i) in connection with any legal or administrative proceeding in which the patient's
1204 physical, mental, or emotional condition is an element of any claim or defense; or
1205 (ii) after a patient's death, in any legal or administrative proceeding in which any party
1206 relies upon the condition as an element of the claim or defense.
1207 (c) Medical records are subject to production in a legal or administrative proceeding
1208 according to state or federal statutes or rules of procedure and evidence as if the medical
1209 records were in the possession of a nongovernmental medical care provider.
1210 Section 32. Section 67-16-3 is amended to read:
1211 67-16-3. Definitions.
1212 As used in this chapter:
1213 (1) "Agency" means any department, division, agency, commission, board, council,
1214 committee, authority, or any other institution of the state or any of its political subdivisions.
1215 (2) "Agency head" means the chief executive or administrative officer of any agency.
1216 (3) "Assist" means to act, or offer or agree to act, in such a way as to help, represent,
1217 aid, advise, furnish information to, or otherwise provide assistance to a person or business
1218 entity, believing that such action is of help, aid, advice, or assistance to such person or business
1219 entity and with the intent to assist such person or business entity.
1220 (4) "Business entity" means a sole proprietorship, partnership, association, joint
1221 venture, corporation, firm, trust, foundation, or other organization or entity used in carrying on
1222 a business.
1223 (5) "Compensation" means anything of economic value, however designated, which is
1224 paid, loaned, granted, given, donated, or transferred to any person or business entity by anyone
1225 other than the governmental employer for or in consideration of personal services, materials,
1226 property, or any other thing whatsoever.
1227 (6) "Controlled, private, or protected information" means information classified as
1228 controlled, private, or protected in Title 63G, Chapter 2, Government Records Access and
1229 Management Act, or other applicable provision of law.
1230 (7) "Governmental action" means any action on the part of the state, a political
1231 subdivision, or an agency, including:
1232 (a) any decision, determination, finding, ruling, or order; and
1233 (b) any grant, payment, award, license, contract, subcontract, transaction, decision,
1234 sanction, or approval, or the denial thereof, or the failure to act in respect to.
1235 (8) "Improper disclosure" means disclosure of controlled, private, or protected
1236 information to any person who does not have the right to receive the information.
1237 (9) "Legislative employee" means any officer or employee of the Legislature, or any
1238 committee of the Legislature, who is appointed or employed to serve, either with or without
1239 compensation, for an aggregate of less than 800 hours during any period of 365 days.
1240 "Legislative employee" does not include legislators.
1241 (10) "Legislator" means a member or member-elect of either house of the Legislature
1242 of the state of Utah.
1243 (11) "Political subdivision" means a district, [
1244 political subdivision of the state that is not an agency, but does not include [
1245 municipality or a county.
1246 (12) "Public employee" means a person who is not a public officer who is employed on
1247 a full-time, part-time, or contract basis by the state or any of its political subdivisions. "Public
1248 employee" does not include legislators or legislative employees.
1249 (13) "Public officer" means all elected or appointed officers of the state or any of its
1250 political subdivisions who occupy policymaking posts. "Public officer" does not include
1251 legislators or legislative employees.
1252 (14) "State" means the state of Utah.
1253 (15) "Substantial interest" means the ownership, either legally or equitably, by an
1254 individual, the individual's spouse, or the individual's minor children, of at least 10% of the
1255 outstanding capital stock of a corporation or a 10% interest in any other business entity.
1256 Section 33. Section 67-16-4 is amended to read:
1257 67-16-4. Improperly disclosing or using private, controlled, or protected
1258 information -- Using position to secure privileges or exemptions -- Accepting employment
1259 which would impair independence of judgment or ethical performance -- Exceptions.
1260 (1) [
1261 employee, or legislator, under circumstances not amounting to a violation of Section
1262 63G-6-1001 or 76-8-105 , to:
1263 (a) accept employment or engage in any business or professional activity that he might
1264 reasonably expect would require or induce him to improperly disclose controlled information
1265 that he has gained by reason of his official position;
1266 (b) disclose or improperly use controlled, private, or protected information acquired by
1267 reason of his official position or in the course of official duties in order to further substantially
1268 the officer's or employee's personal economic interest or to secure special privileges or
1269 exemptions for himself or others;
1270 (c) use or attempt to use his official position to:
1271 (i) further substantially the officer's or employee's personal economic interest; or
1272 (ii) secure special privileges or exemptions for himself or others;
1273 (d) accept other employment that he might expect would impair his independence of
1274 judgment in the performance of his public duties; or
1275 (e) accept other employment that he might expect would interfere with the ethical
1276 performance of his public duties.
1277 (2) (a) Subsection (1) does not apply to the provision of education-related services to
1278 public school students by public education employees acting outside their regular employment.
1279 (b) The conduct referred to in Subsection (2)(a) is subject to Section 53A-1-402.5 .
1280 [
1281
1282
1283 [
1284
1285 [
1286 Section 34. Section 67-16-15 is enacted to read:
1287 67-16-15. Complaint -- Political Subdivisions Ethics Review Commission.
1288 A person may file a complaint for an alleged violation of this chapter by a political
1289 subdivision officer or employee in accordance with Title 11, Chapter 49, Political Subdivisions
1290 Ethics Review Commission.
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