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8 LONG TITLE
9 General Description:
10 This bill amends provisions of the Utah Protection of Public Employees Act.
11 Highlighted Provisions:
12 This bill:
13 ▸ exempts an action filed under the Utah Protection of Public Employees Act from
14 certain requirements of the Governmental Immunity Act of Utah;
15 ▸ expands the list of entities to whom an employee may communicate wrongful
16 government conduct under the protections provided by the Utah Protection of
17 Public Employees Act;
18 ▸ defines "independent personnel board" for a state institution of higher education;
19 ▸ sets a deadline for an independent personnel board to hear a complaint;
20 ▸ provides for the appeal of the ruling of an independent personnel board or final
21 decision maker;
22 ▸ requires a state institution of higher education to adopt a policy to establish an
23 independent personnel board to hear and take action on a complaint alleging adverse
24 action against an employee;
25 ▸ provides an exception to the 180-day time limit for bringing an action under the
26 Utah Protection of Public Employees Act;
27 ▸ expands the circumstances under which an employer is required to provide a copy
28 of the Utah Protection of Public Employees Act to an employee; and
29 ▸ makes technical and conforming amendments.
30 Money Appropriated in this Bill:
31 None
32 Other Special Clauses:
33 None
34 Utah Code Sections Affected:
35 AMENDS:
36 63G-7-203, as renumbered and amended by Laws of Utah 2008, Chapter 382
37 67-21-3, as last amended by Laws of Utah 2013, Chapter 427
38 67-21-3.7, as enacted by Laws of Utah 2013, Chapter 427
39 67-21-4, as last amended by Laws of Utah 2013, Chapter 427
40 67-21-9, as last amended by Laws of Utah 2013, Chapter 427
41
42 Be it enacted by the Legislature of the state of Utah:
43 Section 1. Section 63G-7-203 is amended to read:
44 63G-7-203. Exemptions for certain actions.
45 [
46
47 apply to:
48 (1) an action that involves takings law, as defined in Section 63L-3-102; or
49 (2) an action filed under Title 67, Chapter 21, Utah Protection of Public Employees
50 Act.
51 Section 2. Section 67-21-3 is amended to read:
52 67-21-3. Reporting of governmental waste or violations of law -- Employer action
53 -- Exceptions.
54 (1) (a) An employer may not take adverse action against an employee because the
55 employee, or a person authorized to act on behalf of the employee, communicates in good
56 faith:
57 (i) the waste or misuse of public funds, property, or manpower;
58 (ii) a violation or suspected violation of a law, rule, or regulation adopted under the law
59 of this state, a political subdivision of this state, or any recognized entity of the United States;
60 or
61 (iii) as it relates to a state government employer:
62 (A) gross mismanagement;
63 (B) abuse of authority; or
64 (C) unethical conduct.
65 (b) For purposes of Subsection (1)(a), an employee is presumed to have communicated
66 in good faith if the employee gives written notice or otherwise formally communicates the
67 conduct described in Subsection (1)(a) to:
68 (i) a person in authority over the person alleged to have engaged in the conduct
69 described in Subsection (1)(a);
70 (ii) the attorney general's office;
71 (iii) law enforcement, if the conduct is criminal in nature;
72 (iv) if the employee is a public entity employee, public body employee, legislative
73 employee, or a judicial employee:
74 (A) the state auditor's office;
75 (B) the president of the Senate;
76 (C) the speaker of the House of Representatives;
77 (D) the Office of Legislative Auditor General;
78 [
79 [
80 [
81 (v) if the employee is a public entity employee, but not an employee of a state
82 institution of higher education, the director of the Division of Purchasing and General Services;
83 (vi) if the employee is a political subdivision employee:
84 (A) the legislative body, or a member of the legislative body, of the political
85 subdivision;
86 (B) the governing body, or a member of the governing body, of the political
87 subdivision;
88 (C) the top executive of the political subdivision; or
89 (D) any government official with authority to audit the political subdivision or the
90 applicable part of the political subdivision; or
91 (vii) if the employee is an employee of a state institution of higher education:
92 (A) the State Board of Regents or a member of the State Board of Regents;
93 (B) the commissioner of higher education;
94 (C) the president of the state institution of higher education where the employee is
95 employed; or
96 (D) the entity that conducts audits of the state institution of higher education where the
97 employee is employed.
98 (c) The presumption described in Subsection (1)(b) may be rebutted by showing that
99 the employee knew or reasonably ought to have known that the report is malicious, false, or
100 frivolous.
101 (2) An employer may not take adverse action against an employee because an
102 employee participates or gives information in an investigation, hearing, court proceeding,
103 legislative or other inquiry, or other form of administrative review held by the public body.
104 (3) An employer may not take adverse action against an employee because the
105 employee has objected to or refused to carry out a directive that the employee reasonably
106 believes violates a law of this state, a political subdivision of this state, or the United States, or
107 a rule or regulation adopted under the authority of the laws of this state, a political subdivision
108 of this state, or the United States.
109 (4) An employer may not implement rules or policies that unreasonably restrict an
110 employee's ability to document:
111 (a) the waste or misuse of public funds, property, or manpower;
112 (b) a violation or suspected violation of any law, rule, or regulation; or
113 (c) as it relates to a state government employer:
114 (i) gross mismanagement;
115 (ii) abuse of authority; or
116 (iii) unethical conduct.
117 Section 3. Section 67-21-3.7 is amended to read:
118 67-21-3.7. Administrative review for state institution of higher education
119 employees.
120 (1) (a) As used in this section, "independent personnel board" means a board where no
121 member of the board:
122 (i) is in the same department as the complainant;
123 (ii) is a supervisor of the complainant; or
124 (iii) has a conflict of interest in relation to the complainant or an allegation made in the
125 complaint.
126 [
127 establish an independent personnel board to hear and take action on a complaint alleging
128 adverse action.
129 [
130 (i) procedures for filing a complaint and conducting a hearing; and
131 (ii) a burden of proof on the employer to establish by substantial evidence that the
132 employer's action was justified by reasons unrelated to the employee's good faith actions under
133 Section 67-21-3.
134 [
135
136 (2) (a) An employee of [
137 with the independent personnel board described in Subsection (1)(b) alleging adverse action.
138 (b) An independent personnel board that receives a complaint under Subsection (2)(a)
139 shall hear the matter, resolve the complaint, and take action under Subsection (3) within the
140 later of:
141 (i) 30 days after the day on which the employee files the complaint; or
142 (ii) a longer period of time, not to exceed 30 additional days, if the employee and the
143 independent personnel board mutually agree on the longer time period.
144 (3) If an independent personnel board finds that adverse action is taken in violation of
145 the policy described in Subsection (1)[
146 recommend to a final decision maker:
147 (a) reinstatement of the employee at the same level as before the adverse action;
148 (b) the payment of back wages;
149 (c) full reinstatement of fringe benefits;
150 (d) full reinstatement of seniority rights; or
151 (e) if the adverse action includes failure to promote, as described in Subsection
152 67-19a-101(8)(d), a pay raise that results in the employee receiving the pay that the employee
153 would have received if the person had been promoted.
154 (4) A final decision maker who receives a recommendation under Subsection (3) shall
155 render a decision and enter an order within seven days after the day on which the final decision
156 maker receives the recommendation.
157 Section 4. Section 67-21-4 is amended to read:
158 67-21-4. Choice of forum -- Remedies for employee bringing action -- Proof
159 required.
160 (1) (a) Except as provided in Subsection (1)(b) or (d), and subject to Subsections
161 (1)[
162 action for appropriate injunctive relief, damages, or both, within 180 days after the occurrence
163 of the alleged violation of this chapter.
164 (b) Except as provided in Subsection (1)(d):
165 (i) [
166 in Section 67-21-3.6:
167 (A) may bring a civil action described in Subsection (1)(a) within 180 days after the
168 day on which the employee has exhausted administrative remedies; and
169 (B) may not bring a civil action described in Subsection (1)(a) until the employee has
170 exhausted administrative remedies[
171 (ii) [
172
173 (A) may bring a civil action described in Subsection (1)(a) within 180 days after the
174 day on which the employee has exhausted administrative remedies; and
175 (B) may not bring a civil action described in Subsection (1)(a) until the employee has
176 exhausted administrative remedies.
177 (c) [
178 legislative employee or a judicial employee may bring a claim of retaliatory action by selecting
179 one of the following methods:
180 (i) filing a grievance with the Career Service Review Office in accordance with Section
181 67-19a-402.5; or
182 (ii) bringing a civil action for appropriate injunctive relief, damages, or both, within
183 180 days after the occurrence of the alleged violation of this chapter.
184 (d) (i) A claimant may bring an action after the 180-day limit described in this
185 Subsection (1) if:
186 (A) the claimant originally brought the action within the 180-day time limit;
187 (B) the action described in Subsection (1)(d)(i)(A) failed or was dismissed for a reason
188 other than on the merits; and
189 (C) the claimant brings the new action within 180 days after the day on which the
190 claimant originally brought the action under Subsection (1)(d)(i)(A).
191 (ii) A claimant may commence a new action under this Subsection (1)(d) only once.
192 [
193 (1)[
194 (i) may not, at any time, bring a civil action in relation to the subject matter of the
195 grievance;
196 (ii) may seek a remedy described in Subsection 67-21-3.5(2); and
197 (iii) waives the right to seek a remedy or a type of damages not included in Subsection
198 67-21-3.5(2).
199 [
200 (1)[
201 relation to the subject matter of the civil action.
202 (2) An employee who brings a civil action under this section shall bring the action in
203 the district court for the county where the alleged violation occurred, the county where the
204 complainant resides, or the county where the person against whom the civil complaint is filed
205 resides or has the person's principal place of business.
206 (3) To prevail in an action brought under this section, the employer shall prove by
207 substantial evidence that the employer's action was justified.
208 Section 5. Section 67-21-9 is amended to read:
209 67-21-9. Notice of contents of this chapter -- Posting.
210 (1) An employer shall post notices and use other appropriate means to keep employees
211 informed of their protections and obligations under this chapter.
212 (2) [
213 An employer shall provide [
214 (a) when the employee is hired;
215 (b) upon a request by the employee; and
216 (c) when the employee files a grievance under this chapter.
Legislative Review Note
Office of Legislative Research and General Counsel