This document includes House Floor Amendments incorporated into the bill on Thu, Feb 22, 2018 at 12:02 PM by bbryner.
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7 LONG TITLE
8 Committee Note:
9 The Political Subdivisions Interim Committee recommended this bill.
10 General Description:
11 This bill establishes a process to remove a county elected officer from office for mental
12 incapacity.
13 Highlighted Provisions:
14 This bill:
15 ▸ defines terms;
16 ▸ establishes a process to remove a county elected officer from office for mental
17 incapacity;
18 ▸ provides that the provisions of this bill apply only to a county, with at least five
19 members on the county legislative body, that opts into the provisions of this bill;
20 ▸ requires a county to determine whether the county elected officer has the mental
21 capacity to fulfill the essential functions of the applicable office, with or without
22 reasonable accommodations;
23 ▸ establishes a process for:
24 • a voluntary mental capacity evaluation; or
25 • if the county elected officer refuses to undergo a voluntary mental capacity
26 evaluation, a court order to undergo the evaluation;
27 ▸ provides certain exceptions to the Open and Public Meetings Act;
28 ▸ permits the county legislative body to remove a county elected officer from office if
29 the qualified medical professional who conducts the mental capacity evaluation
30 determines that the county elected officer lacks the mental capacity to fulfill the
31 essential functions of the applicable office, with or without reasonable
32 accommodations;
33 ▸ requires the county legislative body to provide reasonable accommodations under
34 certain circumstances; and
35 ▸ provides for the award of court costs, attorney fees, and sanctions under certain
36 circumstances.
37 Money Appropriated in this Bill:
38 None
39 Other Special Clauses:
40 None
41 Utah Code Sections Affected:
42 ENACTS:
43 20A-1-901, Utah Code Annotated 1953
44 20A-1-902, Utah Code Annotated 1953
45 20A-1-903, Utah Code Annotated 1953
46 20A-1-904, Utah Code Annotated 1953
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48 Be it enacted by the Legislature of the state of Utah:
49 Section 1. Section 20A-1-901 is enacted to read:
50
51 20A-1-901. Definitions.
52 As used in this part:
53 (1) "Applicable office" means the office held by the subject officer.
54 (2) "Mental capacity evaluation" means an evaluation by a qualified medical
55 professional to determine whether the subject officer has the mental capacity to fulfill the
56 essential functions of the applicable office, with or without reasonable accommodations.
57 (3) "Officer" means a county officer.
58 (4) "Results of the mental capacity evaluation" means a statement by the qualified
59 medical professional who conducts the mental capacity evaluation that the subject officer:
60 (a) has the mental capacity to fulfill the essential functions of the applicable office,
61 without reasonable accommodations;
62 (b) has the mental capacity to fulfill the essential functions of the applicable office,
63 with specified reasonable accommodations; or
64 (c) lacks the mental capacity to fulfill the essential functions of the applicable office,
65 with or without reasonable accommodations.
66 (5) "Subject officer" means the officer who is subject to proceedings under this part to
67 determine whether the officer has the mental capacity to fulfill the essential functions of the
68 officer's office, with or without reasonable accommodations.
69 (6) "Unanimous" means a vote of all members of a county legislative body where all
70 members of the county legislative body, not including the subject officer, vote on the same side
71 of the motion.
72 Section 2. Section 20A-1-902 is enacted to read:
73 20A-1-902. Removal of officer from office -- Initial determination.
74 (1) (a) A county legislative body may remove an officer from office in accordance with
75 this part if:
76 (i) the county legislative body adopts the provisions of this part by ordinance, without
77 additions, deletions, or modifications;
78 (ii) the officer lacks the mental capacity to fulfill the essential functions of the
79 applicable office, with or without reasonable accommodations; and
80 (iii) the county legislative body consists of at least five members.
81 (b) This section does not apply to a county, unless the county:
82 (i) has adopted the ordinance described in Subsection (1)(a)(i); and
83 (ii) has at least five members on the county legislative body.
84 (2) Before removing the subject officer from office under Subsection (1), the county
85 legislative body shall hold a closed meeting, as authorized under Subsection 52-4-205(1)(a), to
86 discuss whether the subject officer has the mental capacity to fulfill the essential functions of
87 the officer's office, with or without reasonable accommodations.
88 (3) At the meeting described in Subsection (2):
89 (a) the county legislative body shall give the subject officer the opportunity to discuss
90 the subject officer's mental capacity to fulfill the essential functions of the applicable office and
91 any reasonable accommodations that would enable the subject officer to continue to function in
92 the applicable office; and
93 (b) the subject officer may bring one individual to the meeting to assist the subject
94 officer in the discussion.
95 (4) (a) After the discussion described in Subsection (3), the county legislative body
96 may exclude the subject officer and the individual described in Subsection (3)(b) from the
97 closed portion of the meeting to discuss whether the subject officer has the mental capacity to
98 fulfill the essential functions of the applicable office, with or without reasonable
99 accommodations.
100 (b) If the subject officer is a member of the county legislative body:
101 (i) the county legislative body may exclude the subject officer and the individual
102 described in Subsection (3)(b) from the portion of the closed meeting described in Subsection
103 (4)(a); and
104 (ii) the subject officer is recused from voting on any decision, described in this part, of
105 the county legislative body.
106 (c) Notwithstanding the provisions of Title 52, Chapter 4, Open and Public Meetings
107 Act, the county legislative body shall meet in a closed meeting to vote on whether the subject
108 officer has the ability to fulfill the essential functions of the applicable office, with or without
109 reasonable accommodations.
110 (5) If the county legislative body Ĥ→ [
110a preliminary conclusion ←Ĥ that the subject officer lacks
111 the mental capacity to fulfill the essential functions of the applicable office, with or without
112 reasonable accommodations, the county legislative body shall:
113 (a) confidentially inform the subject officer of the vote; and
114 (b) allow the subject officer five calendar days, after the day on which the county
115 legislative body makes the conclusion, to:
116 (i) resign from the applicable office;
117 (ii) (A) voluntarily agree to undergo a mental capacity evaluation at the expense of the
118 county; and
119 (B) sign a waiver to disclose only the results of the mental capacity evaluation to the
120 county legislative body; or
121 (iii) refuse to take any action.
122 (6) If the county legislative body does not Ĥ→ [
122a preliminary conclusion ←Ĥ that the subject
123 officer lacks the mental capacity to fulfill the essential functions of the applicable office, with
124 or without reasonable accommodations:
125 (a) the county legislative body shall:
126 (i) publicly announce that the vote failed, without disclosing the number of votes for or
127 against and without disclosing the vote of individual members of the county legislative body;
128 and
129 (ii) provide any necessary reasonable accommodations; and
130 (b) the subject officer may continue to function in the applicable office.
131 Section 3. Section 20A-1-903 is enacted to read:
132 20A-1-903. Voluntary evaluation.
133 (1) This section does not apply to a county, unless the county:
134 (a) has adopted the ordinance described in Subsection 20A-1-902(1)(a)(i); and
135 (b) has at least five members on the county legislative body.
136 (2) At the end of the five-day period described in Subsection 20A-1-902(5)(b), if the
137 subject officer agrees to the voluntary mental capacity evaluation option described in
138 Subsection 20A-1-902(5)(b)(ii):
139 (a) the county legislative body and the subject officer shall mutually agree on a
140 qualified medical professional to conduct the mental capacity evaluation; and
141 (b) the subject officer shall undergo the mental capacity evaluation within 15 calendar
142 days after the day on which the subject officer agrees to undergo the mental capacity
143 evaluation, or longer if the county legislative body and the subject officer agree to an extended
144 period.
145 (3) Notwithstanding the provisions of Title 52, Chapter 4, Open and Public Meetings
146 Act, any action taken by the county legislative body under Subsection (2) shall occur in a
147 closed meeting.
148 (4) If the qualified medical professional concludes that the subject officer has the
149 mental capacity to fulfill the essential functions of the applicable office, with or without
150 reasonable accommodations:
151 (a) the county legislative body shall provide any necessary reasonable
152 accommodations; and
153 (b) the subject officer may continue to function in the applicable office.
154 (5) (a) If the qualified medical professional concludes that the subject officer lacks the
155 mental capacity to fulfill the essential functions of the applicable office, with or without
156 reasonable accommodations, the subject officer may resign from office.
157 (b) If the subject officer does not resign from office within five calendar days after the
158 day on which the qualified medical professional makes the conclusion described in Subsection
159 (5)(a), the county legislative body may, in an open meeting by unanimous vote, remove the
160 subject officer from the applicable office.
161 Section 4. Section 20A-1-904 is enacted to read:
162 20A-1-904. Court order for involuntary evaluation.
163 (1) This section does not apply to a county, unless the county:
164 (a) has adopted the ordinance described in Subsection 20A-1-902(1)(a)(i); and
165 (b) has at least five members on the county legislative body.
166 (2) The county legislative body may file an action against the subject officer in district
167 court for an order to undergo a mental capacity evaluation if:
168 (a) the county legislative body:
169 (i) unanimously concludes that the subject officer lacks the mental capacity to fulfill
170 the essential functions of the applicable office, with or without reasonable accommodations, in
171 accordance with the requirements of Section 20A-1-902; and
172 (ii) complies with the requirements of Subsections 20A-1-902(2) through (5); and
173 (b) (i) the subject officer does not, within the five-day period described in Subsection
174 20A-1-902(5)(b):
175 (A) resign from the applicable office; or
176 (B) agree to undergo a voluntary mental capacity evaluation and sign a waiver to
177 disclose only the results of the mental capacity evaluation to the county legislative body;
178 (ii) the subject officer does not complete the mental capacity evaluation within the
179 15-day period described in Subsection 20A-1-903(2)(b), or any longer period agreed to
180 between the subject officer and the county legislative body; or
181 (iii) the subject officer and the county legislative body cannot mutually agree on a
182 qualified medical professional to conduct the mental capacity evaluation.
183 (3) The district court shall order the subject officer to undergo a mental capacity
184 evaluation by a qualified medical professional appointed by the court, and shall provide only
185 the results of the mental capacity evaluation to the county legislative body, if the court finds
186 that there is reasonable cause to believe that the subject officer may lack the mental capacity to
187 fulfill the essential functions of the applicable office, with or without reasonable
188 accommodations.
189 (4) If the qualified medical professional concludes that the subject officer has the
190 mental capacity to fulfill the essential functions of the applicable office, with or without
191 reasonable accommodations:
192 (a) the county legislative body shall provide any necessary reasonable
193 accommodations;
194 (b) the subject officer may continue to function in the applicable office; and
195 (c) the court shall order the county legislative body to pay the court costs and
196 reasonable attorney fees of the subject officer.
197 (5) (a) If the qualified medical professional concludes that the subject officer lacks the
198 mental capacity to fulfill the essential functions of the applicable office, with or without
199 reasonable accommodations, the subject officer may resign from office.
200 (b) If the subject officer does not resign from office within five calendar days after the
201 day on which the qualified medical professional makes the conclusion described in Subsection
202 (5)(a), the county legislative body may, in an open meeting by unanimous vote, remove the
203 subject officer from the applicable office.
204 (6) The court shall dismiss an action filed under this section, and rescind any order to
205 undergo a mental capacity evaluation, if the subject officer resigns from the applicable office.
206 (7) The court may order sanctions against the county legislative body if the court finds,
207 by clear and convincing evidence, that the county legislative body filed or pursued an action
208 described in this section in bad faith.
Legislative Review Note
Office of Legislative Research and General Counsel