1     
ADMINISTRATIVE LAW JUDGE APPOINTMENT

2     
2015 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Wayne A. Harper

5     
House Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions relating to administrative law judges.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     provides that the Division of Administrative Rules shall employ certain
14     administrative law judges;
15          ▸     establishes a hiring and review procedure for certain administrative law judges;
16          ▸     addresses the creation of an internal service fund to pay the administrative law
17     judges employed by the Division of Administrative Rules;
18          ▸     moves certain responsibilities relating to administrative law judges from the
19     Department of Human Resource Management to the Department of Administrative
20     Services, including establishing a standard of conduct, conducting performance
21     surveys, conducting performance evaluations, and processing complaints; and
22          ▸     makes technical and conforming changes.
23     Money Appropriated in this Bill:
24          This bill appropriates in fiscal year 2016:
25          ▸     to the Department of Human Resource Management:
26               •     from the General Fund, ($75,200).
27               •     from the General Fund, One-time, $37,600.

28          ▸     to the Department of Administrative Services -- Administrative Rules:
29               •     from the General Fund, $75,200.
30               •     from the General Fund, One-time, ($37,600).
31     Other Special Clauses:
32          This bill provides a special effective date.
33     Utah Code Sections Affected:
34     AMENDS:
35          31A-2-404, as last amended by Laws of Utah 2013, Chapters 43 and 319
36          35A-3-302, as last amended by Laws of Utah 2013, Chapter 112
37          53-2a-209, as renumbered and amended by Laws of Utah 2013, Chapter 295
38          53C-1-201, as last amended by Laws of Utah 2014, Chapter 426
39          63G-3-102, as renumbered and amended by Laws of Utah 2008, Chapter 382
40          63G-3-401, as renumbered and amended by Laws of Utah 2008, Chapter 382
41          63G-3-402, as last amended by Laws of Utah 2010, Chapter 341
42          63J-1-602.4, as last amended by Laws of Utah 2014, Chapters 37, 186, and 189
43     ENACTS:
44          63A-15-101, Utah Code Annotated 1953
45          63A-15-102, Utah Code Annotated 1953
46          63A-15-201, Utah Code Annotated 1953
47          63A-15-202, Utah Code Annotated 1953
48          63A-15-203, Utah Code Annotated 1953
49          63A-15-301, Utah Code Annotated 1953
50     RENUMBERS AND AMENDS:
51          63A-15-103, (Renumbered from 67-19e-104, as enacted by Laws of Utah 2013,
52     Chapter 165)
53          63A-15-302, (Renumbered from 67-19e-103, as enacted by Laws of Utah 2013,
54     Chapter 165)
55          63A-15-303, (Renumbered from 67-19e-105, as enacted by Laws of Utah 2013,
56     Chapter 165)
57          63A-15-304, (Renumbered from 67-19e-106, as enacted by Laws of Utah 2013,
58     Chapter 165)

59          63A-15-305, (Renumbered from 67-19e-107, as enacted by Laws of Utah 2013,
60     Chapter 165)
61          63A-15-306, (Renumbered from 67-19e-108, as enacted by Laws of Utah 2013,
62     Chapter 165)
63          63A-15-307, (Renumbered from 67-19e-109, as enacted by Laws of Utah 2013,
64     Chapter 165)
65     REPEALS:
66          67-19e-101, as enacted by Laws of Utah 2013, Chapter 165
67          67-19e-102, as enacted by Laws of Utah 2013, Chapter 165
68     

69     Be it enacted by the Legislature of the state of Utah:
70          Section 1. Section 31A-2-404 is amended to read:
71          31A-2-404. Duties of the commissioner and Title and Escrow Commission.
72          (1) Notwithstanding the other provisions of this chapter, to the extent provided in this
73     part, the commissioner shall administer and enforce the provisions in this title related to:
74          (a) title insurance; and
75          (b) escrow conducted by a title licensee or title insurer.
76          (2) The commission shall:
77          (a) in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and
78     subject to Subsection (4), make rules for the administration of the provisions in this title related
79     to title insurance including rules related to:
80          (i) rating standards and rating methods for a title licensee, as provided in Section
81     31A-19a-209;
82          (ii) the licensing for a title licensee, including the licensing requirements of Section
83     31A-23a-204;
84          (iii) continuing education requirements of Section 31A-23a-202; and
85          (iv) standards of conduct for a title licensee;
86          (b) concur in the issuance and renewal of a license in accordance with Section
87     31A-23a-105 or 31A-26-203;
88          (c) in accordance with Section 31A-3-103, establish, with the concurrence of the
89     commissioner, the fees imposed by this title on a title licensee;

90          (d) in accordance with Section 31A-23a-415 determine, after consulting with the
91     commissioner, the assessment on a title insurer as defined in Section 31A-23a-415;
92          (e) conduct an administrative hearing not delegated by the commission to an
93     administrative law judge related to the:
94          (i) licensing of an applicant;
95          (ii) conduct of a title licensee; or
96          (iii) approval of a continuing education program required by Section 31A-23a-202;
97          (f) with the concurrence of the commissioner, approve a continuing education program
98     required by Section 31A-23a-202;
99          (g) with the concurrence of the commissioner, impose a penalty:
100          (i) under this title related to:
101          (A) title insurance; or
102          (B) escrow conducted by a title licensee;
103          (ii) after investigation by the commissioner in accordance with Part 3, Procedures and
104     Enforcement; and
105          (iii) that is enforced by the commissioner;
106          (h) advise the commissioner on the administration and enforcement of any matter
107     affecting the title insurance industry;
108          (i) advise the commissioner on matters affecting the commissioner's budget related to
109     title insurance; and
110          (j) perform other duties as provided in this title.
111          (3) The commission may make rules establishing an examination for a license that will
112     satisfy Section 31A-23a-204:
113          (a) after consultation with the commissioner and the commissioner's test administrator;
114          (b) in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and
115          (c) subject to Subsection (4).
116          (4) The commission may make a rule under this title only if at the time the commission
117     files its proposed rule and rule analysis with the Division of Administrative Rules and
118     Administrative Law Judges in accordance with Section 63G-3-301, the commission provides
119     the Real Estate Commission that same information.
120          (5) (a) The commissioner shall annually report the information described in Subsection

121     (5)(b) in writing to the commission.
122          (b) The information required to be reported under this Subsection (5):
123          (i) may not identify a person; and
124          (ii) shall include:
125          (A) the number of complaints the commissioner receives with regard to transactions
126     involving title insurance or a title licensee during the calendar year immediately proceeding the
127     report;
128          (B) the type of complaints described in Subsection (5)(b)(ii)(A); and
129          (C) for each complaint described in Subsection (5)(b)(ii)(A):
130          (I) any action taken by the commissioner with regard to the complaint; and
131          (II) the time-period beginning the day on which a complaint is made and ending the
132     day on which the commissioner determines it will take no further action with regard to the
133     complaint.
134          (6) The commission may not impose a penalty in a manner inconsistent with
135     Subsection (2)(g) or make a rule that conflicts with Subsection (2)(g).
136          Section 2. Section 35A-3-302 is amended to read:
137          35A-3-302. Eligibility requirements.
138          (1) The program of cash assistance provided under this part is known as the Family
139     Employment Program.
140          (2) (a) The division shall submit a state plan to the secretary of the United States
141     Department of Health and Human Services to obtain federal funding under the Temporary
142     Assistance for Needy Families Block Grant.
143          (b) The division shall make the plan consistent with this part and federal law.
144          (c) If a discrepancy arises between a provision of the state plan and this part, this part
145     supersedes the provision in the state plan.
146          (3) The services and supports under this part are for both one-parent and two-parent
147     families.
148          (4) To be eligible for cash assistance under this part, a family shall:
149          (a) have at least one minor dependent child; or
150          (b) have a parent who is in the third trimester of a pregnancy.
151          (5) The department shall make rules for eligibility and the amount of cash assistance a

152     family is eligible to receive under this part based on:
153          (a) family size;
154          (b) family income;
155          (c) income disregards;
156          (d) other relevant factors; and
157          (e) if the applicant has met the eligibility requirements under Subsections (5)(a)
158     through (d), the assessment and other requirements described in Sections 35A-3-304 and
159     35A-3-304.5.
160          (6) The division shall disregard money on deposit in an individual development
161     account established under Section 35A-3-312 in determining eligibility.
162          (7) The department shall provide for an appeal of a determination of eligibility in
163     accordance with Title 63G, Chapter 4, Administrative Procedures Act.
164          (8) (a) The department shall make a report to either the Legislature's Executive
165     Appropriations Committee or the Social Services Appropriations Subcommittee on any
166     proposed rule change made under Subsection (5) that would modify the eligibility requirements
167     or the amount of cash assistance a family would be eligible to receive.
168          (b) The department shall submit the report prior to implementing the proposed rule
169     change and the report shall include:
170          (i) a description of the department's current practice or policy that it is proposing to
171     change;
172          (ii) an explanation of why the department is proposing the change;
173          (iii) the effect of an increase or decrease in cash benefits on families; and
174          (iv) the fiscal impact of the proposed change.
175          (c) The department may use the Notice of Proposed Rule Amendment form filed with
176     the Division of Administrative Rules and Administrative Law Judges as its report if the notice
177     contains the information required under Subsection (8)(b).
178          (9) The department shall make rules to ensure that:
179          (a) a recipient of assistance from the Family Employment Program:
180          (i) has adequate access to the assistance;
181          (ii) has the ability to use and withdraw assistance with minimal fees or surcharges,
182     including the opportunity to obtain assistance with no fees or surcharges;

183          (iii) is provided information regarding fees and surcharges that may apply to assistance
184     accessed through an electronic fund transaction; and
185          (iv) is provided information explaining the restrictions on accessing assistance
186     described in Subsection (10); and
187          (b) information regarding fees and surcharges that may apply when accessing
188     assistance from the Family Employment Program through an electronic fund transaction is
189     available to the public.
190          (10) An individual receiving assistance under this section may not access the assistance
191     through an electronic benefit transfer, including through an automated teller machine or
192     point-of-sale device, in an establishment in the state that:
193          (a) exclusively or primarily sells intoxicating liquor;
194          (b) allows gambling or gaming; or
195          (c) provides adult-oriented entertainment where performers disrobe or perform
196     unclothed.
197          (11) An establishment in the state may not allow an individual to access the assistance
198     described in this section on the establishment's premises through an electronic benefit transfer,
199     including through an automated teller machine or point-of-sale device, if the establishment:
200          (a) exclusively or primarily sells intoxicating liquor;
201          (b) allows gambling or gaming; or
202          (c) provides adult-oriented entertainment where performers disrobe or perform
203     unclothed.
204          (12) In accordance with federal requirements, the department shall make rules to
205     prevent individuals from accessing assistance in a manner prohibited by Subsections (10) and
206     (11), which rules may include enforcement provisions that impose sanctions that temporarily or
207     permanently disqualify an individual from receiving assistance.
208          (13) When exercising rulemaking authority under this part, the department shall
209     comply with the requirements of Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
210          Section 3. Section 53-2a-209 is amended to read:
211          53-2a-209. Orders, rules, and regulations having force of law -- Filing
212     requirements -- Suspension of state agency rules -- Suspension of enforcement of certain
213     statutes during a state of emergency.

214          (1) All orders, rules, and regulations promulgated by the governor, a municipality, a
215     county, or other agency authorized by this part to make orders, rules, and regulations, not in
216     conflict with existing laws except as specifically provided herein, shall have the full force and
217     effect of law during the state of emergency, when a copy of the order, rule, or regulation is filed
218     with:
219          (a) the Division of Administrative Rules and Administrative Law Judges, if issued by
220     the governor or a state agency; or
221          (b) the office of the clerk of the municipality or county, if issued by the chief executive
222     officer of a municipality or county.
223          (2) The governor may suspend the provisions of any order, rule, or regulation of any
224     state agency, if the strict compliance with the provisions of the order, rule, or regulation would
225     substantially prevent, hinder, or delay necessary action in coping with the emergency or
226     disaster.
227          (3) (a) Except as provided in Subsection (3)(b) and subject to Subsections (3)(c) and
228     (d), the governor may by executive order suspend the enforcement of a statute if:
229          (i) the governor declares a state of emergency in accordance with Section 53-2a-206;
230          (ii) the governor determines that suspending the enforcement of the statute is:
231          (A) directly related to the state of emergency described in Subsection (3)(a)(i); and
232          (B) necessary to address the state of emergency described in Subsection (3)(a)(i);
233          (iii) the executive order:
234          (A) describes how the suspension of the enforcement of the statute is:
235          (I) directly related to the state of emergency described in Subsection (3)(a)(i); and
236          (II) necessary to address the state of emergency described in Subsection (3)(a)(i); and
237          (B) provides the citation of the statute that is the subject of suspended enforcement;
238          (iv) the governor acts in good faith;
239          (v) the governor provides written notice of the suspension of the enforcement of the
240     statute to the speaker of the House of Representatives and the president of the Senate no later
241     than 24 hours after suspending the enforcement of the statute; and
242          (vi) the governor makes the report required by Section 53-2a-214.
243          (b) (i) Except as provided in Subsection (3)(b)(ii), the governor may not suspend the
244     enforcement of a criminal penalty created in statute.

245          (ii) The governor may suspend the enforcement of a misdemeanor or infraction if:
246          (A) the misdemeanor or infraction relates to food, health, or transportation; and
247          (B) the requirements of Subsection (3)(a) are met.
248          (c) A suspension described in this Subsection (3) terminates no later than the date the
249     governor terminates the state of emergency in accordance with Section 53-2a-206 to which the
250     suspension relates.
251          (d) The governor:
252          (i) shall provide the notice required by Subsection (3)(a)(v) using the best available
253     method under the circumstances as determined by the governor; and
254          (ii) may provide the notice required by Subsection (3)(a)(v) in electronic format.
255          Section 4. Section 53C-1-201 is amended to read:
256          53C-1-201. Creation of administration -- Purpose -- Director -- Participation in
257     Risk Management Fund.
258          (1) (a) There is established within state government the School and Institutional Trust
259     Lands Administration.
260          (b) The administration shall manage all school and institutional trust lands and assets
261     within the state, except as otherwise provided in Title 53C, Chapter 3, Deposit and Allocation
262     of Revenue from Trust Lands, and Title 53D, Chapter 1, School and Institutional Trust Fund
263     Management Act.
264          (2) The administration is an independent state agency and not a division of any other
265     department.
266          (3) (a) It is subject to the usual legislative and executive department controls except as
267     provided in this Subsection (3).
268          (b) (i) The director may make rules as approved by the board that allow the
269     administration to classify a business proposal submitted to the administration as protected
270     under Section 63G-2-305, for as long as is necessary to evaluate the proposal.
271          (ii) The administration shall return the proposal to the party who submitted the
272     proposal, and incur no further duties under Title 63G, Chapter 2, Government Records Access
273     and Management Act, if the administration determines not to proceed with the proposal.
274          (iii) The administration shall classify the proposal pursuant to law if it decides to
275     proceed with the proposal.

276          (iv) Section 63G-2-403 does not apply during the review period.
277          (c) The director shall make rules in compliance with Title 63G, Chapter 3, Utah
278     Administrative Rulemaking Act, except that the administration is not subject to Subsections
279     63G-3-301(6) and (7) and Section 63G-3-601, and the director, with the board's approval, may
280     establish a procedure for the expedited approval of rules, based on written findings by the
281     director showing:
282          (i) the changes in business opportunities affecting the assets of the trust;
283          (ii) the specific business opportunity arising out of those changes which may be lost
284     without the rule or changes to the rule;
285          (iii) the reasons the normal procedures under Section 63G-3-301 cannot be met without
286     causing the loss of the specific opportunity;
287          (iv) approval by at least five board members; and
288          (v) that the director has filed a copy of the rule and a rule analysis, stating the specific
289     reasons and justifications for its findings, with the Division of Administrative Rules and
290     Administrative Law Judges and notified interested parties as provided in Subsection
291     63G-3-301(10).
292          (d) (i) The administration shall comply with Title 67, Chapter 19, Utah State Personnel
293     Management Act, except as provided in this Subsection (3)(d).
294          (ii) The board may approve, upon recommendation of the director, that exemption for
295     specific positions under Subsections 67-19-12(2) and 67-19-15(1) is required in order to enable
296     the administration to efficiently fulfill its responsibilities under the law. The director shall
297     consult with the executive director of the Department of Human Resource Management prior
298     to making such a recommendation.
299          (iii) The positions of director, deputy director, associate director, assistant director,
300     legal counsel appointed under Section 53C-1-305, administrative assistant, and public affairs
301     officer are exempt under Subsections 67-19-12(2) and 67-19-15(1).
302          (iv) Salaries for exempted positions, except for the director, shall be set by the director,
303     after consultation with the executive director of the Department of Human Resource
304     Management, within ranges approved by the board. The board and director shall consider
305     salaries for similar positions in private enterprise and other public employment when setting
306     salary ranges.

307          (v) The board may create an annual incentive and bonus plan for the director and other
308     administration employees designated by the board, based upon the attainment of financial
309     performance goals and other measurable criteria defined and budgeted in advance by the board.
310          (e) The administration shall comply with Title 63G, Chapter 6a, Utah Procurement
311     Code, except where the board approves, upon recommendation of the director, exemption from
312     the Utah Procurement Code, and simultaneous adoption of rules under Title 63G, Chapter 3,
313     Utah Administrative Rulemaking Act, for procurement, which enable the administration to
314     efficiently fulfill its responsibilities under the law.
315          (f) (i) Except as provided in Subsection (3)(f)(ii), the administration is not subject to
316     the fee agency requirements of Section 63J-1-504.
317          (ii) The following fees of the administration are subject to the requirements of Section
318     63J-1-504: application, assignment, amendment, affidavit for lost documents, name change,
319     reinstatement, grazing nonuse, extension of time, partial conveyance, patent reissue, collateral
320     assignment, electronic payment, and processing.
321          (4) The administration is managed by a director of school and institutional trust lands
322     appointed by a majority vote of the board of trustees with the consent of the governor.
323          (5) (a) The board of trustees shall provide policies for the management of the
324     administration and for the management of trust lands and assets.
325          (b) The board shall provide policies for the ownership and control of Native American
326     remains that are discovered or excavated on school and institutional trust lands in consultation
327     with the Division of Indian Affairs and giving due consideration to Title 9, Chapter 9, Part 4,
328     Native American Grave Protection and Repatriation Act. The director may make rules in
329     accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement
330     policies provided by the board regarding Native American remains.
331          (6) In connection with joint ventures and other transactions involving trust lands and
332     minerals approved under Sections 53C-1-303 and 53C-2-401, the administration, with board
333     approval, may become a member of a limited liability company under Title 48, Chapter 2c,
334     Utah Revised Limited Liability Company Act, or Title 48, Chapter 3a, Utah Revised Uniform
335     Limited Liability Company Act, as appropriate pursuant to Section 48-3a-1405 and is
336     considered a person under Section 48-2c-102 or Section 48-3a-102.
337          (7) Subject to the requirements of Subsection 63E-1-304(2), the administration may

338     participate in coverage under the Risk Management Fund created by Section 63A-4-201.
339          Section 5. Section 63A-15-101 is enacted to read:
340     
CHAPTER 15. ADMINISTRATIVE LAW JUDGES

341     
Part 1. General Provisions

342          63A-15-101. Title.
343          (1) This chapter is known as "Administrative Law Judges."
344          (2) This part is known as "General Provisions."
345          Section 6. Section 63A-15-102 is enacted to read:
346          63A-15-102. Definitions.
347          As used in this chapter:
348          (1) (a) "Administrative law judge" means an individual who is employed or contracted
349     by a state agency that:
350          (i) presides over or conducts formal administrative hearings on behalf of an agency;
351          (ii) has the power to administer oaths, rule on the admissibility of evidence, take
352     testimony, evaluate evidence, and make determinations of fact; and
353          (iii) issues written orders, rulings, or final decisions on behalf of an agency.
354          (b) "Administrative law judge" does not include:
355          (i) an individual who reviews an order or ruling of an administrative law judge;
356          (ii) the executive director of a state agency; or
357          (iii) a person employed by or who contracts with:
358          (A) the Board of Pardons and Parole;
359          (B) the Department of Corrections; or
360          (C) the State Tax Commission.
361          (c) "Administrative law judge" includes an employee administrative law judge.
362          (2) "Agency" means the same as that term is defined in Section 63G-4-103.
363          (3) "Committee" means the Administrative Law Judge Conduct Committee created in
364     Section 63A-15-306.
365          (4) "Department" means the Department of Administrative Services.
366          (5) "Designated agency" means:
367          (a) for an employee administrative law judge, the state agency for which the employee
368     administrative law judge performs services as an administrative law judge; or

369          (b) for an administrative law judge who is not an employee administrative law judge,
370     the state agency that contracts with the administrative law judge.
371          (6) "Director" means the director of the Division of Administrative Rules and
372     Administrative Law Judges.
373          (7) "Division" means the Division of Administrative Rules and Administrative Law
374     Judges.
375          (8) (a) "Employee administrative law judge" means an administrative law judge who is
376     employed by a state agency.
377          (b) "Employee administrative law judge" does not include an administrative law judge
378     employed by the Department of Health.
379          (9) "Executive director" means the executive director of the Department of
380     Administrative Services.
381          (10) "Minimum performance standards" means the performance standards for an
382     administrative law judge established by the department under Section 63A-15-103.
383          Section 7. Section 63A-15-103, which is renumbered from Section 67-19e-104 is
384     renumbered and amended to read:
385          [67-19e-104].      63A-15-103. Rulemaking authority.
386          The department shall make rules, in accordance with Title 63G, Chapter 3, Utah
387     Administrative Rulemaking Act:
388          (1) establishing minimum performance standards for all administrative law judges;
389          (2) providing procedures for filing, addressing, and reviewing complaints against
390     administrative law judges;
391          (3) providing standards for complaints against administrative law judges; and
392          (4) promulgating a code of conduct for all administrative law judges in all state
393     agencies.
394          Section 8. Section 63A-15-201 is enacted to read:
395     
Part 2. Employment and Oversight of Administrative Law Judges

396          63A-15-201. Title.
397          This part is known as "Employment and Oversight of Administrative Law Judges."
398          Section 9. Section 63A-15-202 is enacted to read:
399          63A-15-202. Employment of administrative law judges -- Hiring procedure.

400          (1) Beginning January 1, 2016:
401          (a) each employee administrative law judge is an employee of the division; and
402          (b) the director shall supervise each employee administrative law judge.
403          (2) (a) An employee administrative law judge shall perform administrative law judge
404     services for a single designated agency.
405          (b) An employee administrative law judge's designated agency shall provide a
406     workspace and all necessary equipment and support staff to the employee administrative law
407     judge.
408          (3) (a) An employee administrative law judge who is hired on or after January 1, 2016
409     shall be hired in accordance with this Subsection (3).
410          (b) If the division decides to interview an applicant for an employee administrative law
411     judge position, the division shall interview the applicant by means of a hiring panel.
412          (c) The hiring panel described in Subsection (3)(b) shall consist of:
413          (i) the director, or the director's designee;
414          (ii) the director of the position's designated agency, or the director's designee; and
415          (iii) the executive director of the Department of Human Resource Management, or the
416     executive director's designee.
417          (d) (i) After the hiring panel completes the interviews for an employee administrative
418     law judge position, the hiring panel shall recommend an applicant for the position.
419          (ii) The director shall consider the hiring panel's recommendation and decide which
420     applicant to hire for the employee administrative law judge position.
421          Section 10. Section 63A-15-203 is enacted to read:
422          63A-15-203. Peer review and evaluation.
423          (1) For each year in which the department conducts a performance survey for an
424     employee administrative law judge, the employee administrative law judge shall meet with a
425     peer review and evaluation panel described in Subsection (2) to review and discuss:
426          (a) the results of that year's performance evaluation;
427          (b) the results of the performance survey; and
428          (c) any other information that the department considers relevant to the employee
429     administrative law judge's performance.
430          (2) A peer review and evaluation panel shall include:

431          (a) the executive director, or the executive director's designee;
432          (b) the executive director of the Department of Human Resource Management, or the
433     executive director's designee;
434          (c) the director of the employee administrative law judge's designated agency, or the
435     director's designee; and
436          (d) an employee administrative law judge from a different designated agency, selected
437     by the executive director.
438          Section 11. Section 63A-15-301 is enacted to read:
439     
Part 3. Administrative Law Judge Standards of Conduct and Evaluation

440          63A-15-301. Title.
441          This part is known as "Administrative Law Judge Standards of Conduct and
442     Evaluation."
443          Section 12. Section 63A-15-302, which is renumbered from Section 67-19e-103 is
444     renumbered and amended to read:
445          [67-19e-103].      63A-15-302. Administrative law judges -- Standard of
446     conduct.
447          (1) [All agency] Each administrative law [judges who conduct formal administrative
448     hearings are] judge is subject to [this chapter.]:
449          (a) the provisions of this part; and
450          [(2) All administrative law judges are subject to]
451          (b) the code of conduct promulgated by the department in accordance with Section
452     [67-19e-104] 63A-15-103.
453          [(3)] (2) (a) An administrative law judge who tampers with or destroys evidence
454     submitted to the administrative law judge is subject to the provisions of Section 76-8-510.5.
455          [This section] (b) Subsection (2)(a) does not apply to documents destroyed in
456     accordance with Title 63G, Chapter 2, Government Records Access and Management Act.
457          Section 13. Section 63A-15-303, which is renumbered from Section 67-19e-105 is
458     renumbered and amended to read:
459          [67-19e-105].      63A-15-303. Performance evaluation of administrative law
460     judges.
461          (1) Beginning January 1, [2014] 2016, the department shall prepare a performance

462     evaluation for each administrative law judge [contracted or employed by a state agency].
463          (2) The performance evaluation for an administrative law judge shall include:
464          (a) the results of the administrative law judge's performance evaluations conducted by
465     the [employing] administrative law judge's designated agency since the administrative law
466     judge's last performance evaluation conducted by the department in accordance with the
467     performance evaluation procedure [for the agency];
468          (b) information from the [employing] designated agency concerning the administrative
469     law judge's compliance with the minimum performance standards;
470          (c) the administrative law judge's disciplinary record, if any;
471          (d) the results of any performance surveys conducted since the administrative law
472     judge's last performance review conducted by the department; and
473          (e) any other factor that the department considers relevant to evaluating the
474     administrative law judge's performance.
475          (3) If an administrative law judge fails to meet the minimum performance standards the
476     department shall provide a copy of the performance evaluation and survey to:
477          (a) the [employing] designated agency[.]; and
478          (b) if the administrative law judge is an employee administrative law judge, the
479     director.
480          (4) The department shall conduct a performance [reviews] review for each
481     administrative law judge every four years [for administrative law judges contracted or
482     employed by an agency].
483          Section 14. Section 63A-15-304, which is renumbered from Section 67-19e-106 is
484     renumbered and amended to read:
485          [67-19e-106].      63A-15-304. Performance surveys.
486          [(1) For administrative law judges contracted or employed before July 1, 2013,
487     performance surveys shall be conducted initially at either the two-, three-, or four-year mark
488     beginning January 1, 2014.]
489          (1) (a) The department shall continue the four-year performance survey schedule for
490     each administrative law judge the Department of Human Resource Management started on
491     January 1, 2014.
492          (b) By July 1, 2018, all administrative law judges shall be on a four-year staggered

493     cycle for performance evaluations.
494          (2) The performance survey shall include as respondents a sample of each of the
495     following groups as applicable:
496          (a) attorneys who have appeared before the administrative law judge as counsel; and
497          (b) staff who have worked with the administrative law judge.
498          (3) The department may include an additional classification of respondents if the
499     department:
500          (a) considers a survey of that classification of respondents helpful to the department;
501     and
502          (b) establishes the additional classification of respondents by rule made in accordance
503     with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
504          (4) A survey response is anonymous, including any comment included with a survey
505     response.
506          (5) If the department provides any information to an administrative law judge or the
507     committee, the information shall be provided in such a way as to protect the confidentiality of a
508     survey respondent.
509          (6) (a) If the department establishes an additional classification, in accordance with
510     Subsection (3), a survey shall be provided to a potential survey respondent within 30 days of
511     the day on which the case in which the person appeared before the administrative law judge is
512     closed, exclusive of any appeal.
513          (b) Staff and attorneys may be surveyed at any time during the survey period.
514          (7) Survey categories may include questions concerning an administrative law judge's:
515          (a) legal ability, including the following:
516          (i) demonstration of understanding of the substantive law and any relevant rules of
517     procedure and evidence;
518          (ii) attentiveness to factual and legal issues before the administrative law judge;
519          (iii) adherence to precedent and ability to clearly explain departures from precedent;
520          (iv) grasp of the practical impact on the parties of the administrative law judge's
521     rulings, including the effect of delay and increased litigation expense;
522          (v) ability to write clear opinions and decisions; and
523          (vi) ability to clearly explain the legal basis for opinions;

524          (b) temperament and integrity, including the following:
525          (i) demonstration of courtesy toward attorneys, staff, and others in the administrative
526     law judge's [department] designated agency;
527          (ii) maintenance of decorum in the courtroom;
528          (iii) demonstration of judicial demeanor and personal attributes that promote public
529     trust and confidence in the administrative law judge system;
530          (iv) preparedness for oral argument;
531          (v) avoidance of impropriety or the appearance of impropriety;
532          (vi) display of fairness and impartiality toward all parties; and
533          (vii) ability to clearly communicate, including the ability to explain the basis for
534     written rulings, court procedures, and decisions; and
535          (c) administrative performance, including the following:
536          (i) management of workload;
537          (ii) sharing proportionally the workload within the department; and
538          (iii) issuance of opinions and orders without unnecessary delay.
539          (8) If the department determines that a certain survey question or category of questions
540     is not appropriate for a respondent group, the department may omit that question or category of
541     questions from the survey provided to that respondent group.
542          (9) (a) The survey shall allow respondents to indicate responses in a manner
543     determined by the department, which shall be:
544          (i) on a numerical scale from one to five; or
545          (ii) in the affirmative or negative, with an option to indicate the respondent's inability
546     to respond in the affirmative or negative.
547          (b) To supplement the responses to questions on either a numerical scale or in the
548     affirmative or negative, the department may allow respondents to provide written comments.
549          (10) The department shall compile and make available to each administrative law
550     judge that administrative law judge's survey results with each of the administrative law judge's
551     performance evaluations.
552          (11) A survey and an administrative law judge's survey results are classified as
553     protected under Title 63G, Chapter 2, Government Records Access and Management Act.
554          Section 15. Section 63A-15-305, which is renumbered from Section 67-19e-107 is

555     renumbered and amended to read:
556          [67-19e-107].      63A-15-305. Complaints.
557          (1) A complaint against an administrative law judge shall be filed with the department.
558          (2) Upon receipt of a complaint, the department shall conduct an investigation.
559          (3) (a) If the department's investigation determines that the complaint is frivolous or
560     without merit, it may dismiss it without further action.
561          (b) A complaint that merely indicates disagreement, without further misconduct, with
562     the administrative law judge's decision shall be treated as without merit.
563          (4) The contents of [all complaints] a complaint and any documents relating to a
564     subsequent [investigations] investigation are classified as protected under Title 63G, Chapter 2,
565     Government Records Access and Management Act.
566          Section 16. Section 63A-15-306, which is renumbered from Section 67-19e-108 is
567     renumbered and amended to read:
568          [67-19e-108].      63A-15-306. Administrative Law Judge Conduct Committee.
569          (1) There is created the Administrative Law Judge Conduct Committee to investigate,
570     review, and hear complaints filed against administrative law judges.
571          (2) (a) The committee shall be composed of:
572          [(a)] (i) the executive director [of the department], or the executive director's designee,
573     as chair; and
574          [(b)] (ii) four executive directors, or their designees, of agencies:
575          (A) that employ or contract with administrative law judges[, to be selected by the
576     executive director as needed.]; or
577          (B) for which one or more employee administrative law judges are designated.
578          (b) The executive director shall select the members described in Subsection (2)(a)(ii)
579     as needed.
580          (3) The [department] division shall provide staff for the committee as needed.
581          Section 17. Section 63A-15-307, which is renumbered from Section 67-19e-109 is
582     renumbered and amended to read:
583          [67-19e-109].      63A-15-307. Procedure for review of complaint by conduct
584     committee.
585          (1) (a) Upon a determination that a complaint requires further action, the executive

586     director shall select four executive directors or their designees and convene the committee.
587          (b) The executive director of the designated agency [that employs or contracts with] of
588     the administrative law judge who is the subject of the complaint may not be a member of the
589     committee.
590          (2) (a) The department shall provide a copy of the complaint, along with the results of
591     the department's investigation, to the committee and the administrative law judge who is the
592     subject of the complaint. [If the committee directs,]
593          (b) Upon direction from the committee, the department shall also send a copy of the
594     complaint and investigation [may also be provided] to the attorney general.
595          (3) The committee shall allow an administrative law judge who is the subject of a
596     complaint to appear and speak at any committee meeting, except a closed meeting conducted in
597     accordance with Subsection (4), during which the committee is deliberating the complaint.
598          (4) The committee may meet in a closed meeting to discuss a complaint against an
599     administrative law judge by complying with Title 52, Chapter 4, Open and Public Meetings
600     Act.
601          (5) (a) After deliberation and discussion of the complaint and all information provided,
602     the committee shall provide a report, with a recommendation, to the [agency] director.
603          (b) The recommendation described in Subsection (5)(a) shall include:
604          [(a)] (i) a brief description of the complaint and results of the department's
605     investigation;
606          [(b)] (ii) the committee's findings; and
607          [(c)] (iii) a recommendation from the committee whether action should be taken
608     against the administrative law judge.
609          (6) Actions recommended by the committee may include no action, disciplinary action,
610     termination, or any other action an employer may take against an employee.
611          (7) The record of an individual committee member's vote on a recommended [actions]
612     action against an administrative law judge is a protected record under Title 63G, Chapter 2,
613     Government Records Access and Management Act.
614          Section 18. Section 63G-3-102 is amended to read:
615          63G-3-102. Definitions.
616          As used in this chapter:

617          (1) "Administrative record" means information an agency relies upon when making a
618     rule under this chapter including:
619          (a) the proposed rule, change in the proposed rule, and the rule analysis form;
620          (b) the public comment received and recorded by the agency during the public
621     comment period;
622          (c) the agency's response to the public comment;
623          (d) the agency's analysis of the public comment; and
624          (e) the agency's report of its decision-making process.
625          (2) "Agency" means each state board, authority, commission, institution, department,
626     division, officer, or other state government entity other than the Legislature, its committees, the
627     political subdivisions of the state, or the courts, which is authorized or required by law to make
628     rules, adjudicate, grant or withhold licenses, grant or withhold relief from legal obligations, or
629     perform other similar actions or duties delegated by law.
630          (3) "Bulletin" means the Utah State Bulletin.
631          (4) "Catchline" means a short summary of each section, part, rule, or title of the code
632     that follows the section, part, rule, or title reference placed before the text of the rule and serves
633     the same function as boldface in legislation as described in Section 68-3-13.
634          (5) "Code" means the body of all effective rules as compiled and organized by the
635     division and entitled "Utah Administrative Code."
636          (6) "Department" means the Department of Administrative Services.
637          [(6)] (7) "Director" means the director of the Division of Administrative Rules and
638     Administrative Law Judges.
639          [(7)] (8) "Division" means the Division of Administrative Rules and Administrative
640     Law Judges.
641          [(8)] (9) "Effective" means operative and enforceable.
642          [(9)] (10) (a) "File" means to submit a document to the division as prescribed by the
643     division.
644          (b) "Filing date" means the day and time the document is recorded as received by the
645     division.
646          [(10)] (11) "Interested person" means any person affected by or interested in a
647     proposed rule, amendment to an existing rule, or a nonsubstantive change made under Section

648     63G-3-402.
649          [(11)] (12) "Order" means an agency action that determines the legal rights, duties,
650     privileges, immunities, or other interests of one or more specific persons, but not a class of
651     persons.
652          [(12)] (13) "Person" means any individual, partnership, corporation, association,
653     governmental entity, or public or private organization of any character other than an agency.
654          [(13)] (14) "Publication" or "publish" means making a rule available to the public by
655     including the rule or a summary of the rule in the bulletin.
656          [(14)] (15) "Publication date" means the inscribed date of the bulletin.
657          [(15)] (16) "Register" may include an electronic database.
658          [(16)] (17) (a) "Rule" means an agency's written statement that:
659          (i) is explicitly or implicitly required by state or federal statute or other applicable law;
660          (ii) implements or interprets a state or federal legal mandate; and
661          (iii) applies to a class of persons or another agency.
662          (b) "Rule" includes the amendment or repeal of an existing rule.
663          (c) "Rule" does not mean:
664          (i) orders;
665          (ii) an agency's written statement that applies only to internal management and that
666     does not restrict the legal rights of a public class of persons or another agency;
667          (iii) the governor's executive orders or proclamations;
668          (iv) opinions issued by the attorney general's office;
669          (v) declaratory rulings issued by the agency according to Section 63G-4-503 except as
670     required by Section 63G-3-201;
671          (vi) rulings by an agency in adjudicative proceedings, except as required by Subsection
672     63G-3-201(6); or
673          (vii) an agency written statement that is in violation of any state or federal law.
674          [(17)] (18) "Rule analysis" means the format prescribed by the division to summarize
675     and analyze rules.
676          [(18)] (19) "Small business" means a business employing fewer than 50 persons.
677          [(19)] (20) "Substantive change" means a change in a rule that affects the application
678     or results of agency actions.

679          Section 19. Section 63G-3-401 is amended to read:
680     
Part 4. Division of Administrative Rules and Administrative Law Judges

681          63G-3-401. Division of Administrative Rules and Administrative Law Judges
682     created -- Appointment of director.
683          (1) There is created within the Department of Administrative Services the Division of
684     Administrative Rules and Administrative Law Judges, to be administered by a director.
685          (2) The director of [administrative rules] the division shall be appointed by the
686     executive director with the approval of the governor.
687          (3) (a) For purposes of the division's duties under Title 63A, Chapter 15, Part 2,
688     Employment and Oversight of Administrative Law Judges, the department shall operate the
689     division as an internal service fund agency in accordance with Section 63A-1-109.5.
690          (b) The division shall submit to the Rate Committee established in Section 63A-1-114:
691          (i) the proposed rate and fee schedule as required by Section 63A-1-114; and
692          (ii) other information or analysis that the Rate Committee requests.
693          Section 20. Section 63G-3-402 is amended to read:
694          63G-3-402. Division of Administrative Rules and Administrative Law Judges --
695     Duties generally.
696          (1) The Division of Administrative Rules and Administrative Law Judges shall:
697          (a) establish all filing, publication, and hearing procedures necessary to make rules
698     under this chapter;
699          (b) record in a register the receipt of all agency rules, rule analysis forms, and notices
700     of effective dates;
701          (c) make the register, copies of all proposed rules, and rulemaking documents available
702     for public inspection;
703          (d) publish all proposed rules, rule analyses, notices of effective dates, and review
704     notices in the bulletin at least monthly, except that the division may publish the complete text
705     of any proposed rule that the director determines is too long to print or too expensive to publish
706     by reference to the text maintained by the division;
707          (e) compile, format, number, and index all effective rules in an administrative code,
708     and periodically publish that code and supplements or revisions to it;
709          (f) publish a digest of all rules and notices contained in the most recent bulletin;

710          (g) publish at least annually an index of all changes to the administrative code and the
711     effective date of each change;
712          (h) print, or contract to print, all rulemaking publications the division determines
713     necessary to implement this chapter;
714          (i) distribute without charge the bulletin and administrative code to state-designated
715     repositories, the Administrative Rules Review Committee, the Office of Legislative Research
716     and General Counsel, and the two houses of the Legislature;
717          (j) distribute without charge the digest and index to state legislators, agencies, political
718     subdivisions on request, and the Office of Legislative Research and General Counsel;
719          (k) distribute, at prices covering publication costs, all paper rulemaking publications to
720     all other requesting persons and agencies;
721          (l) provide agencies assistance in rulemaking;
722          [(m) if the Department of Administrative Services operates the division as an internal
723     service fund agency in accordance with Section 63A-1-109.5, submit to the Rate Committee
724     established in Section 63A-1-114:]
725          [(i) the proposed rate and fee schedule as required by Section 63A-1-114; and]
726          [(ii) other information or analysis requested by the Rate Committee; and]
727          [(n)] (m) administer this chapter and require state agencies to comply with filing,
728     publication, and hearing procedures[.];
729          (n) employ designated administrative law judges in accordance with the provisions of
730     Title 63A, Chapter 15, Part 2, Employment and Oversight of Administrative Law Judges; and
731          (o) administer the provisions of Title 63A, Chapter 15, Part 3, Administrative Law
732     Judge Standards of Conduct and Evaluation.
733          (2) The division may after notifying the agency make nonsubstantive changes to rules
734     filed with the division or published in the bulletin or code by:
735          (a) implementing a uniform system of formatting, punctuation, capitalization,
736     organization, numbering, and wording;
737          (b) correcting obvious errors and inconsistencies in punctuation, capitalization,
738     numbering, referencing, and wording;
739          (c) changing a catchline to more accurately reflect the substance of each section, part,
740     rule, or title;

741          (d) updating or correcting annotations associated with a section, part, rule, or title; and
742          (e) merging or determining priority of any amendment, enactment, or repeal to the
743     same rule or section made effective by an agency.
744          (3) In addition, the division may make the following nonsubstantive changes with the
745     concurrence of the agency:
746          (a) eliminate duplication within rules;
747          (b) eliminate obsolete and redundant words; and
748          (c) correcting defective or inconsistent section and paragraph structure in arrangement
749     of the subject matter of rules.
750          (4) For nonsubstantive changes made in accordance with Subsection (2) or (3) after
751     publication of the rule in the bulletin, the division shall publish a list of nonsubstantive changes
752     in the bulletin. For each nonsubstantive change, the list shall include:
753          (a) the affected code citation;
754          (b) a brief description of the change; and
755          (c) the date the change was made.
756          (5) All funds appropriated or collected for publishing the division's publications shall
757     be nonlapsing.
758          Section 21. Section 63J-1-602.4 is amended to read:
759          63J-1-602.4. List of nonlapsing funds and accounts -- Title 61 through Title 63M.
760          (1) Funds paid to the Division of Real Estate for the cost of a criminal background
761     check for a mortgage loan license, as provided in Section 61-2c-202.
762          (2) Funds paid to the Division of Real Estate for the cost of a criminal background
763     check for principal broker, associate broker, and sales agent licenses, as provided in Section
764     61-2f-204.
765          (3) Certain funds donated to the Department of Human Services, as provided in
766     Section 62A-1-111.
767          (4) Appropriations from the National Professional Men's Basketball Team Support of
768     Women and Children Issues Restricted Account created in Section 62A-1-202.
769          (5) Certain funds donated to the Division of Child and Family Services, as provided in
770     Section 62A-4a-110.
771          (6) Appropriations from the Choose Life Adoption Support Restricted Account created

772     in Section 62A-4a-608.
773          (7) Appropriations to the Division of Services for People with Disabilities, as provided
774     in Section 62A-5-102.
775          (8) A portion of the funds appropriated to the Utah Seismic Safety Commission, as
776     provided in Section 63C-6-104.
777          (9) Certain money payable for commission expenses of the Pete Suazo Utah Athletic
778     Commission, as provided under Section 63C-11-301.
779          (10) Funds appropriated or collected for publishing the Division of Administrative
780     [Rules'] Rules and Administrative Law Judges' publications, as provided in Section 63G-3-402.
781          (11) The Immigration Act Restricted Account created in Section 63G-12-103.
782          (12) Money received by the military installation development authority, as provided in
783     Section 63H-1-504.
784          (13) Appropriations to fund the Governor's Office of Economic Development's
785     Enterprise Zone Act, as provided in Title 63M, Chapter 1, Part 4, Enterprise Zone Act.
786          (14) The Motion Picture Incentive Account created in Section 63M-1-1803.
787          Section 22. Repealer.
788          This bill repeals:
789          Section 67-19e-101, Title.
790          Section 67-19e-102, Definitions -- Application of chapter -- Exceptions.
791          Section 23. Appropriation.
792          Under the terms and conditions of Title 63J, Chapter 1, Budgetary Procedures Act, for
793     the fiscal year beginning July 1, 2015, and ending June 30, 2016, the following sums of money
794     are appropriated from resources not otherwise appropriated, or reduced from amounts
795     previously appropriated, out of the funds or accounts indicated. These sums of money are in
796     addition to any amounts previously appropriated for fiscal year 2016.
797          To Department of Human Resource Management
798               From General Fund
($75,200)

799               From General Fund, One-time
$37,600

800               Schedule of Programs:
801                         ALJ Compliance                    ($37,600)
802          To Department of Administrative Services - Administrative Rules

803               From General Fund
$75,200

804               From General Fund, One-time
($37,600)

805               Schedule of Programs:
806                    DAR Administration                         $37,600
807          The Legislature intends that the Department of Administrative Services use the
808     appropriation under this section to implement and administer the provisions of Title 63A,
809     Chapter 15, Part 3, Administrative Law Judge Standards of Conduct and Evaluation.
810          Section 24. Effective date.
811          (1) Except as provided in Subsection (2), this bill takes effect on January 1, 2016.
812          (2) Uncodified Section 23, Appropriation, takes effect on July 1, 2015.







Legislative Review Note
     as of 2-26-15 4:22 PM


Office of Legislative Research and General Counsel