Senator Don L. Ipson proposes the following substitute bill:


1     
GUBERNATORIAL TRANSFER OF POWER

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Don L. Ipson

5     
House Sponsor: Robert M. Spendlove

6     

7     LONG TITLE
8     General Description:
9          This bill provides for the transition between gubernatorial administrations.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     clarifies the deadline for the Senate to consent to certain gubernatorial appointees;
14          ▸     requires the executive branch and an incoming gubernatorial administration to work
15     together to facilitate an efficient transition between gubernatorial administrations;
16          ▸     allows appropriations to be made for an incoming gubernatorial administration to
17     use in making the transition into the offices of governor and lieutenant governor;
18          ▸     specifies how the governor's proposed budget is to be prepared in a year in which
19     there is a transition between gubernatorial administrations; and
20          ▸     makes technical and conforming changes.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          None
25     Utah Code Sections Affected:

26     AMENDS:
27          67-1-1.5, as last amended by Laws of Utah 2020, Chapter 352
28     ENACTS:
29          67-1b-101, Utah Code Annotated 1953
30          67-1b-102, Utah Code Annotated 1953
31          67-1b-103, Utah Code Annotated 1953
32          67-1b-104, Utah Code Annotated 1953
33          67-1b-105, Utah Code Annotated 1953
34          67-1b-106, Utah Code Annotated 1953
35     

36     Be it enacted by the Legislature of the state of Utah:
37          Section 1. Section 67-1-1.5 is amended to read:
38          67-1-1.5. Gubernatorial appointment powers.
39          (1) As used in this section:
40          (a) "Board member" means each gubernatorial appointee to any state board, committee,
41     commission, council, or authority.
42          (b) "Executive branch management position" includes department executive directors,
43     division directors, and any other administrative position in state government where the person
44     filling the position:
45          (i) works full-time performing managerial and administrative functions;
46          (ii) is appointed by the governor with the advice and consent of the Senate.
47          (c) (i) "Executive branch policy position" means any person other than a person filling
48     an executive branch management position, who is appointed by the governor with the advice
49     and consent of the Senate.
50          (ii) "Executive branch policy position" includes each member of any state board and
51     commission appointed by the governor with the advice and consent of the Senate.
52          (2) (a) Whenever a vacancy occurs in any executive branch policy position or in any
53     executive branch management position, the governor shall submit the name of a nominee to the
54     Senate for advice and consent no later than three months after the day on which the vacancy
55     occurs.
56          (b) If the Senate fails to consent to that person within 90 days after the day on which

57     the governor submits the nominee's name to the Senate for consent:
58          (i) the nomination is considered rejected; and
59          (ii) the governor shall resubmit the name of the nominee described in Subsection (2)(a)
60     or submit the name of a different nominee to the Senate for consent no later than 60 days after
61     the date on which the nomination was rejected by the Senate.
62          (3) [(a)] Whenever a vacancy occurs in any executive branch management position, the
63     governor may either:
64          [(i)] (a) appoint an interim manager who meets the qualifications of the vacant position
65     to exercise the powers and duties of the vacant position for three months, pending consent of a
66     person to permanently fill that position by the Senate; or
67          [(ii)] (b) appoint an interim manager who does not meet the qualifications of the vacant
68     position and submit that person's name to the Senate for consent as interim manager within one
69     month of the appointment.
70          [(b) If] (4) Except for an interim manager appointed to a position described in
71     Subsection 67-1-2(3)(b)(i) through (vii), if the Senate fails to consent to the interim manager
72     appointed under Subsection [(3)(a)(ii)] (3)(b) within 30 days after the day on which the
73     governor submits the nominee's name to the Senate for consent:
74          [(i)] (a) the nomination is considered rejected; and
75          [(ii)] (b) the governor may:
76          (i) (A) [(I)] reappoint the interim manager to whom the Senate failed to consent within
77     30 days; and
78          [(II)] (B) resubmit the name of the person described in Subsection [(3)(b)(ii)(A)(I)]
79     (4)(b)(i)(A) to the Senate for consent as interim manager; or
80          [(B)] (ii) appoint a different interim manager under Subsection (3)[(a)].
81          (5) For an interim manager appointed to a position described in Subsection
82     67-1-2(3)(b)(i) through (vii), if the Senate fails to consent to the interim manager appointed
83     under Subsection (3)(b) within 60 days after the day on which the governor submits the
84     nominee's name to the Senate for consent:
85          (a) the nomination is considered rejected; and
86          (b) the governor may:
87          (i) (A) reappoint the interim manager to whom the Senate failed to consent; and

88          (B) resubmit the name of the person described in Subsection (5)(b)(i)(A) to the Senate
89     for consent as interim manager; or
90          (ii) appoint a different interim manager under Subsection (3).
91          [(c)] (6) If, after an interim manager has served three months, no one has been
92     appointed and received Senate consent to permanently fill the position, the governor shall:
93          [(i)] (a) appoint a new interim manager who meets the qualifications of the vacant
94     position to exercise the powers and duties of the vacant position for three months; or
95          [(ii)] (b) submit the name of the first interim manager to the Senate for consent as an
96     interim manager for a three-month term.
97          [(d)] (7) If the Senate fails to consent to a nominee whose name is submitted under
98     Subsection [(3)(c)(ii)] (6)(b) within 30 days after the day on which the governor submits the
99     name to the Senate:
100          [(i)] (a) the nomination is considered rejected; and
101          [(ii)] (b) the governor shall:
102          (i) (A) [(I)] reappoint the person described in Subsection [(3)(d)] (6)(b); and
103          [(II)] (B) resubmit the name of the person described in Subsection [(3)(d)] (6)(b) to the
104     Senate for consent as interim manager; or
105          (B) appoint a different interim manager in the manner required by Subsection (3)[(a)].
106          [(4)] (8) The governor may not make a temporary appointment to fill a vacant
107     executive branch policy position.
108          [(5)] (9) (a) Before appointing any person to serve as a board member, the governor
109     shall ask the person whether [or not] the person wishes to receive per diem, expenses, or both
110     for serving as a board member.
111          (b) If the person declines to receive per diem, expenses, or both, the governor shall
112     notify the agency administering the board, commission, committee, council, or authority and
113     direct the agency to implement the board member's request.
114          [(6)] (10) A gubernatorial nomination upon which the Senate has not acted to give
115     consent or refuse to give consent is void when a vacancy in the office of governor occurs.
116          Section 2. Section 67-1b-101 is enacted to read:
117     
CHAPTER 1b. TRANSITION TO NEW GUBERNATORIAL ADMINISTRATION

118          67-1b-101. Title.

119          This chapter is known as "Transition to New Gubernatorial Administration."
120          Section 3. Section 67-1b-102 is enacted to read:
121          67-1b-102. Definitions.
122          As used in this chapter:
123          (1) "Board of canvassers" means the state board of canvassers created in Section
124     20A-4-306.
125          (2) (a) "Executive branch" means:
126          (i) the governor, the governor's staff, and the governor's appointed advisors;
127          (ii) the lieutenant governor and lieutenant governor's staff;
128          (iii) cabinet level officials;
129          (iv) except as provided in Subsection (2)(b), an agency, board, department, division,
130     committee, commission, council, office, or other administrative subunit of the executive branch
131     of state government;
132          (v) except as provided in Subsection (2)(b), a cabinet officer, elected official, executive
133     director, or board or commission vested with:
134          (A) policy making and oversight responsibility for a state executive branch agency; or
135          (B) authority to appoint and remove the director of a state executive branch agency;
136          (vi) executive ministerial officers;
137          (vii) each gubernatorial appointee to a state board, committee, commission, council, or
138     authority;
139          (viii) each executive branch management position, as defined in Section 67-1-1.5;
140          (ix) each executive branch policy position, as defined in Section 67-1-1.5; and
141          (x) the military forces of the state.
142          (b) "Executive branch" does not include:
143          (i) the legislative branch;
144          (ii) the judicial branch;
145          (iii) the State Board of Education;
146          (iv) the Utah Board of Higher Education;
147          (v) institutions of higher education;
148          (vi) independent entities as defined in Section 63E-1-102;
149          (vii) elective constitutional offices of the executive department, including the state

150     auditor, the state treasurer, and the attorney general;
151          (viii) a county, municipality, school district, local district, or special service district; or
152          (ix) an administrative subdivision of a county, municipality, school district, local
153     district, or special service district.
154          (3) "Governor-elect" means, during a transition period, an individual whom the board
155     of canvassers determines to be the successful candidate for governor after a general election for
156     the office of governor, if that successful candidate is an individual other than the incumbent
157     governor.
158          (4) "Governor-elect's staff" means:
159          (a) an individual that a governor-elect intends to nominate as a department head;
160          (b) an individual that a governor-elect intends to appoint to a key position in the
161     executive branch;
162          (c) an individual hired by a governor-elect under Subsection 67-1b-106(c); and
163          (d) any other individual expressly engaged by the governor-elect to assist with the
164     governor-elect's transition into the office of governor.
165          (5) "Governor's Office of Management and Budget" means the office created in Section
166     63J-4-201.
167          (6) "Incoming gubernatorial administration" means a governor-elect, a governor-elect's
168     staff, a lieutenant governor-elect, and a lieutenant governor-elect's staff.
169          (7) "Lieutenant governor-elect" means, during a transition period, an individual whom
170     the board of canvassers determines to be the successful candidate for lieutenant governor after
171     a general election for the office of lieutenant governor, if that successful candidate is an
172     individual other than the incumbent lieutenant governor.
173          (8) "Lieutenant governor-elect's staff" means:
174          (a) an individual hired by a lieutenant governor-elect under Subsection 67-1b-106(c);
175     and
176          (b) any other individual expressly engaged by the lieutenant governor-elect to assist
177     with the lieutenant governor-elect's transition into the office of lieutenant governor.
178          (9) "Office of the Legislative Fiscal Analyst" means the office created in Section
179     36-12-13.
180          (10) "Record" means the same as that term is defined in Section 63G-2-103.

181          (11) "Transition period" means the period of time beginning the day after the meeting
182     of the board of canvassers under Section 20A-4-306 in a year in which the board of canvassers
183     determines that the successful candidate for governor is an individual other than the incumbent
184     governor, and ending on the first Monday of the next January.
185          Section 4. Section 67-1b-103 is enacted to read:
186          67-1b-103. Applicability.
187          (1) Except as otherwise provided, this chapter applies when there is a transition from
188     the administration of one governor to the administration of the next governor following a
189     regular general election at which a new governor is elected.
190          (2) Except as otherwise provided, this chapter does not apply:
191          (a) to a transition from the administration of one governor to the administration of
192     another governor due to a vacancy in the office of governor under Utah Constitution, Article
193     VII, Section 11; or
194          (b) if the successful candidate for governor is the incumbent governor.
195          Section 5. Section 67-1b-104 is enacted to read:
196          67-1b-104. Duties during transition period.
197          (1) During a transition period, the executive branch shall:
198          (a) provide any lawful assistance that the incoming gubernatorial administration may
199     reasonably request related to the transition between gubernatorial administrations; and
200          (b) take reasonable steps to:
201          (i) avoid or minimize disruptions that might be occasioned by a transition between
202     gubernatorial administrations; and
203          (ii) facilitate an efficient transition between gubernatorial administrations.
204          (2) During a transition period, the incoming gubernatorial administration shall take
205     reasonable steps to:
206          (a) avoid or minimize disruptions that might be occasioned by a transition between
207     gubernatorial administrations; and
208          (b) facilitate an efficient transition between gubernatorial administrations.
209          (3) (a) During a transition period, the executive branch shall timely provide a
210     governor-elect, upon the governor-elect's request, with all records and information from the
211     executive branch upon any subject relating to the executive branch's condition, expenditures,

212     expenses, management, operations, personnel, and receipts.
213          (b) For a record requested by a governor-elect under Subsection (3)(a) that is classified
214     as private or protected under Title 63G, Chapter 2, Government Records Access and
215     Management Act, there is a rebuttable presumption that disclosure of the record to the
216     governor-elect meets the conditions for disclosure under Subsection 63G-2-201(5).
217          (c) A governor-elect who receives records under this Subsection (3) is subject to the
218     provisions of Title 63G, Chapter 2, Government Records Access and Management Act,
219     governing the use and disclosure of records.
220          (d) The disclosure of a record that is classified as private or protected to a
221     governor-elect does not affect the classification of that record under Title 63G, Chapter 2,
222     Government Records Access and Management Act.
223          Section 6. Section 67-1b-105 is enacted to read:
224          67-1b-105. Appropriations.
225          (1) (a) There is created a restricted account in the General Fund known as the
226     "Gubernatorial Transition Account."
227          (b) The account created in Subsection (1)(a) shall be funded by appropriations made to
228     the account by the Legislature.
229          (c) The Department of Administrative Services shall administer the Gubernatorial
230     Transition Account and shall make money in the Gubernatorial Transition Account available to
231     an incoming gubernatorial administration to use for expenses reasonably related to fulfilling
232     the incoming gubernatorial administration's duties under Subsection 67-1b-104(2), including:
233          (i) office space;
234          (ii) fixtures, furniture, office supplies, office machines, equipment, or information and
235     communication systems used in the office space described in Subsection (2)(c)(i);
236          (ii) mobile computing devices, including mobile phones, tablet computers, or laptop
237     computers used by the incoming gubernatorial administration; or
238          (iii) hiring employees to assist with transition efforts.
239          (d) Interest or other earnings derived from the Gubernatorial Transition Account shall
240     be deposited in the General Fund.
241          (2) Any unexpended balance of an appropriation made under this section is nonlapsing.
242          Section 7. Section 67-1b-106 is enacted to read:

243          67-1b-106. Governor's budget.
244          (1) During a transition period:
245          (a) the governor-elect is entitled to participate in all executive branch budget meetings;
246          (b) subject to Title 63G, Chapter 2, Government Records Access and Management Act,
247     the executive branch shall make records and information related to the preparation of the
248     governor's confidential draft proposed budget available to the governor-elect; and
249          (c) the incumbent governor shall consider any proposed additions or changes from the
250     governor-elect in preparing the governor's confidential draft proposed budget recommendations
251     to be submitted to the Office of Legislative Fiscal Analyst in accordance with Section
252     63J-1-201.
253          (2) (a) If the governor-elect proposes additions or changes to the governor that are not
254     adopted by the governor in preparing the governor's confidential draft proposed budget
255     recommendations, the governor-elect may prepare confidential proposed additions or changes
256     and submit them to the Office of the Legislative Fiscal Analyst concurrent with the governor's
257     confidential draft proposed budget recommendations.
258          (b) The Governor's Office of Management and Budget shall, at the request of the
259     governor-elect, assist the governor-elect in preparing confidential proposed additions or
260     changes to the incumbent governor's draft proposed budget recommendations for submission to
261     the Office of the Legislative Fiscal Analyst.
262          (3) (a) After the incumbent governor's confidential draft proposed budget
263     recommendations are submitted to the Office of the Legislative Fiscal Analyst, the
264     governor-elect is responsible for preparing the proposed budget to be submitted to the presiding
265     officers of each house of the Legislature in accordance with Section 63J-1-201, and shall
266     submit the proposed budget to the presiding officers of each house of the Legislature after
267     assuming the office of governor.
268          (b) The executive branch shall provide the governor-elect with any assistance
269     reasonably requested by the governor-elect to prepare the proposed budget to be submitted to
270     the presiding officers of each house of the Legislature.
271          (c) A governor whose term ends following a transition period may not submit a
272     proposed budget to the presiding officers of each house of the Legislature.