Representative Kay J. Christofferson proposes the following substitute bill:


1     
OFFICE OF THE ATTORNEY GENERAL EMPLOYMENT

2     
AMENDMENTS

3     
2023 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: Kay J. Christofferson

6     
Senate Sponsor: ____________

7     

8     LONG TITLE
9     General Description:
10          This bill modifies provisions relating to employees of the Office of the Attorney
11     General.
12     Highlighted Provisions:
13          This bill:
14          ▸     modifies provisions relating to the career service status of employees of the Office
15     of the Attorney General;
16          ▸     provides that employees hired after a specified date may not be given career service
17     status;
18          ▸     provides for certain employees to voluntarily elect to convert to a position with
19     career service exempt status;
20          ▸     authorizes the attorney general to adopt a policy for a review process for an
21     employee in a career service exempt status who is recommended to be suspended,
22     demoted, or dismissed;
23          ▸     requires the attorney general to adopt a pay for performance plan and provides for
24     the features of a plan; and
25          ▸     makes technical changes.
26     Money Appropriated in this Bill:
27          None
28     Other Special Clauses:
29          This bill provides a special effective date.
30          This bill provides revisor instructions.
31     Utah Code Sections Affected:
32     ENACTS:
33          67-5-201, Utah Code Annotated 1953
34          67-5-205, Utah Code Annotated 1953
35          67-5-206, Utah Code Annotated 1953
36     RENUMBERS AND AMENDS:
37          67-5-202, (Renumbered from 67-5-7, as last amended by Laws of Utah 2021, Chapter
38     344)
39          67-5-203, (Renumbered from 67-5-8, as last amended by Laws of Utah 2012, Chapter
40     101)
41          67-5-204, (Renumbered from 67-5-9, as last amended by Laws of Utah 2007, Chapter
42     166)
43          67-5-207, (Renumbered from 67-5-10, as last amended by Laws of Utah 1994, Chapter
44     199)
45          67-5-208, (Renumbered from 67-5-11, as last amended by Laws of Utah 2021, Chapter
46     345)
47          67-5-209, (Renumbered from 67-5-12, as last amended by Laws of Utah 2012, Chapter
48     369)
49          67-5-210, (Renumbered from 67-5-13, as last amended by Laws of Utah 2007, Chapter
50     166)
51     REPEALS:
52          67-5-6, as enacted by Laws of Utah 1973, Chapter 185
53     

54     Be it enacted by the Legislature of the state of Utah:
55          Section 1. Section 67-5-201 is enacted to read:
56     
Part 2. Employees of the Office of the Attorney General

57          67-5-201. Definitions.
58          As used in this part:
59          (1) "Career service exempt status" means the employment status of an employee who is
60     exempt from and not subject to the career service provisions of this part.
61          (2) "Career service status" means the employment status of an employee who is subject
62     to the career service provisions of this part.
63          (3) "Eligible employee" means an employee, except a POST-certified employee:
64          (a) who, on the effective date of this section, is employed in a position with career
65     service status; or
66          (b) (i) who was hired before the effective date of this section for a position with career
67     service status;
68          (ii) whose position is subject to a probationary period of service described in
69     Subsection 67-5-203(2)(a)(iii); and
70          (iii) who, on the effective date of this section, has not yet completed the probationary
71     period of service.
72          (4) "Employee" means an individual employed by the Office of the Attorney General.
73          (5) "Pay for performance plan" means a plan:
74          (a) for incentivizing an employee to meet or exceed production or performance goals;
75          (b) that is established before work begins;
76          (c) under which specific goals and targets for the employee are determined and
77     measurement procedures are in place; and
78          (d) that includes features described in Subsection 67-5-206(2).
79          (6) "POST-certified employee" means an employee who:
80          (a) is employed in a position that requires the employee to have received the training
81     certification under Title 53, Chapter 6, Part 2, Peace Officer Training and Certification Act;
82          (b) received the training certification described in Subsection (6)(a); and
83          (c) maintains the training certification described in Subsection (6)(a) throughout the
84     time of the employee's employment in a position that requires the employee to have received
85     the training certification described in Subsection (6)(a).
86          Section 2. Section 67-5-202, which is renumbered from Section 67-5-7 is renumbered
87     and amended to read:
88          [67-5-7].      67-5-202. Establishment of employment system.
89          (1) The purpose of this [chapter] part is to establish [a career service] an employment
90     system for employees of the Office of the Attorney General that will attract and retain
91     employees of proven ability and experience who will devote their full time to the service of the
92     state.
93          (2) The Office of the Attorney General may adopt policies necessary to implement this
94     [chapter] part, including personnel and work policies different from those made by the Division
95     of Human Resource Management.
96          Section 3. Section 67-5-203, which is renumbered from Section 67-5-8 is renumbered
97     and amended to read:
98          [67-5-8].      67-5-203. Eligibility for career service status.
99          (1) (a) The attorney general has sole authority to determine who may be employed with
100     the Office of the Attorney General.
101          (b) An employee of the state or any of its departments or agencies has no claim or right
102     to a position in the [attorney general's office] Office of the Attorney General by virtue of that
103     employment.
104          (2) (a) An employee of the Office of the Attorney General shall be [placed in a] granted
105     career service status if:
106          (i) the employee:
107          (A) was hired before the effective date of this section for a position with career service
108     status; and
109          (B) does not voluntarily elect to convert to career service exempt status under Section
110     67-5-205;
111          [(i)] (ii) for an employee who is an attorney, the attorney is a member in good standing
112     of the Utah State Bar Association; and
113          [(ii)] (iii) except as provided in Subsection (3), the employee has been employed by the
114     Office of the Attorney General as a probationary employee for a period of:
115          (A) at least one year but no more than 18 months; or
116          (B) in the case of investigators, at least 18 months, but no more than two years.
117          (b) An employee [now] employed by the [attorney general's office in] Office of the
118     Attorney General who has career service status may not be terminated under this [chapter] part
119     except for cause.
120          (3) (a) The attorney general shall determine whether an employee hired before the
121     effective date of this section should be granted career service status, subject to the employee
122     completing an applicable probationary period.
123          (b) If, at the end of the probationary period established under Subsection (2), the
124     attorney general determines that an employee should be granted career service status, the
125     attorney general shall notify the employee in writing of that decision and place a copy of the
126     notification in the employee's personnel file.
127          (c) If the attorney general determines that career service status should not be granted,
128     the attorney general:
129          (i) may [either] terminate the employee or extend the probationary period for a period
130     not to exceed one year[.]; and
131          [(d) The attorney general shall]
132          (ii) shall:
133          (A) notify the employee in writing of [that decision] the attorney general's
134     determination; and
135          (B) place a copy of the notification in the employee's personnel file.
136          [(e)] (d) An employee terminated under [this section] Subsection (3)(c) has no appeal
137     rights under this [chapter] part.
138          (4) An employee of the Office of the Attorney General hired on or after the effective
139     date of this section may not be granted career service status.
140          Section 4. Section 67-5-204, which is renumbered from Section 67-5-9 is renumbered
141     and amended to read:
142          [67-5-9].      67-5-204. Reassignment of career status employees -- Additional
143     compensation for managerial assignments -- Employment of special assistant attorneys
144     general -- Termination of employees -- Salary increases.
145          (1) This [chapter] part does not affect the authority of the attorney general to:
146          (a) assign or reassign an employee with career service status to a different position on
147     the attorney general's staff, subject to Subsection (2);
148          (b) develop a plan for additional compensation for a career service status employee
149     who accepts a managerial assignment within the office, subject to Subsection (3);
150          [(1) assign and reassign employees in a career status to different positions on his staff.
151     The salary of an employee reassigned to a different position shall not be decreased by reason of
152     reassignment; except that if the employee reassigned occupies the position of chief deputy
153     attorney general, the salary may be reduced by not more than 15% upon the assignment to a
154     different position;]
155          [(2) develop a plan for additional compensation for career status employees who accept
156     managerial assignments within the office. The provisions of Subsection (1) notwithstanding,
157     the attorney general may discontinue any additional compensation if the employee no longer
158     holds a managerial assignment. Additional compensation provided under this section shall be
159     determined by the attorney general pursuant to the plan developed by the Office of the Attorney
160     General. If the employee no longer holds a managerial assignment, and the attorney general
161     decides to discontinue any additional compensation, the reduction may not place the employee
162     at a salary below where the employee would be through normal salary increases if the
163     employee had not been in a managerial position;]
164          [(3)] (c) employ special assistant attorneys general[, who shall not be subject to this
165     chapter,] to represent the state in particular lawsuits or to handle particular legal matters for the
166     state, without being subject to this part;
167          [(4)] (d) terminate the employment of any employee of the Office of the Attorney
168     General [who is not in a] with career service exempt status; or
169          [(5)] (e) establish the salary or determine salary increases of any employee [under this
170     chapter] of the Office of the Attorney General.
171          (2) (a) Except as provided in Subsection (2)(b), the salary of an employee with career
172     service status who is reassigned to a different position in the Office of the Attorney General
173     may not be decreased because of the reassignment.
174          (b) The salary of an employee with career service status who is reassigned to a different
175     position in the Office of the Attorney General may be reduced by not more than 15% upon the
176     reassignment if the employee's position before the reassignment is chief deputy attorney
177     general.
178          (3) (a) Any additional compensation paid to an employee holding a managerial
179     assignment shall be determined by the attorney general pursuant to the plan developed by the
180     Office of the Attorney General under Subsection (1)(b).
181          (b) (i) Subject to Subsection (3)(b)(ii), if the attorney general reassigns an employee
182     who holds a managerial position and who is paid additional compensation because of the
183     managerial position to a position that is not a managerial position, the attorney general may
184     discontinue the employee's additional compensation.
185          (ii) A discontinuance of additional compensation under Subsection (3)(b)(i) may not
186     result in the employee being paid a salary lower than the salary the employee would have been
187     paid, considering normal salary increases, if the employee had not been in a managerial
188     position.
189          Section 5. Section 67-5-205 is enacted to read:
190          67-5-205. Employees with career service status -- Election to convert to a career
191     service exempt status -- Adoption of policy for review process for career service exempt
192     status employees.
193          (1) An employee who, on the effective date of this section, has career service status
194     maintains the career service status unless the employee voluntarily elects to convert to career
195     service exempt status as provided in this section.
196          (2) (a) The attorney general shall disseminate to each eligible employee information on
197     financial and other incentives for the eligible employee's voluntary election to convert to career
198     service exempt status.
199          (b) An employee with career service status who elects to convert to a career service
200     exempt status before March 30, 2024 shall receive a salary increase of 15%.
201          (3) (a) The attorney general may adopt a policy to implement a review process for an
202     employee with career service exempt status who is recommended to be suspended, demoted, or
203     dismissed from employment.
204          (b) The review process implemented in a policy adopted under Subsection (3)(a) may
205     consist of some or all of the grievance procedures provided in Chapter 19a, Grievance
206     Procedures.
207          Section 6. Section 67-5-206 is enacted to read:
208          67-5-206. Pay for performance plan.
209          (1) No later than July 1, 2023, the attorney general shall:
210          (a) adopt a pay for performance plan; and
211          (b) subject to available funds and as necessary, adjust an employee's wage to reflect:
212          (i) subject to Subsection (3)(b), the salary range of the position classified plan for the
213     employee's position; and
214          (ii) an increase, decrease, or no change in the employee's wage:
215          (A) commensurate with an employee's performance as reflected by the evaluation
216     conducted in accordance with the pay for performance plan; and
217          (B) in an amount that is in accordance with the guidelines and criteria established for a
218     wage change in the pay for performance plan.
219          (2) A pay for performance plan shall include:
220          (a) guidelines and criteria for performance policies and to administer pay based on an
221     employee's performance in furtherance of the mission of the Office of the Attorney General;
222          (b) employee performance ratings;
223          (c) requirements for written employee performance standards and expectations;
224          (d) a provision for supervisor verbal and written feedback based on the standards of
225     performance and behavior outlined in an employee's performance plan; and
226          (e) a provision for the periodic evaluation of an employee's performance, no less
227     frequently than annually, as established by the attorney general in the pay for performance plan.
228          (3) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
229     attorney general shall make rules:
230          (a) for the administration of a pay for performance plan; and
231          (b) authorizing an employee with career service status to receive a wage that exceeds
232     the salary range of the employee's career service status position if warranted based on the
233     employee's performance rating.
234          Section 7. Section 67-5-207, which is renumbered from Section 67-5-10 is renumbered
235     and amended to read:
236          [67-5-10].      67-5-207. Career status attorneys as full-time employees --
237     Completion of outside law practice.
238          (1) (a) [Attorneys in a career status] An attorney with career service status:
239          (i) shall be a full-time [employees and shall] employee;
240          (ii) may not engage in the private practice of law [and shall]; and
241          (iii) may not receive any fee for legal services rendered to any person, corporation,
242     partnership, or other legal entity other than the state or the county in which the [person]
243     attorney holds office or by whom the [person] attorney is employed.
244          (b) The practice of law prohibited by [this subsection] Subsection (1)(a) does not
245     include pro bono service.
246          (2) (a) [Attorneys] An attorney on probationary status who [have] has not been granted
247     career service status may, in the discretion of the attorney general, be granted permission to
248     complete or handle legal matters previously begun before employment with the attorney
249     general's office, but may not begin new matters once employed.
250          (b) Once an attorney is granted career service status [is conferred], the attorney is
251     bound by the provisions of Subsection (1).
252          (3) [The provisions of this section shall] Subsections (1) and (2) do not apply to a
253     special assistant [attorneys] attorney general retained on a fee basis to render services in
254     connection with a single case or a related series of cases.
255          Section 8. Section 67-5-208, which is renumbered from Section 67-5-11 is renumbered
256     and amended to read:
257          [67-5-11].      67-5-208. Employee accepting appointment to state position exempt
258     from merit provisions -- Reinstatement in career status.
259          (1) (a) An employee [in a] with career service status [accepting] who accepts an
260     appointment to a position in state government [which] that is exempt from the merit provisions
261     of Title 63A, Chapter 17, Utah State Personnel Management Act, shall notify the attorney
262     general in writing.
263          (b) Upon termination of [the] an appointment under Subsection (1)(a), unless
264     discharged for cause, the employee, through written request of reinstatement made to the
265     attorney general within 30 days from the effective date of termination from the appointment,
266     shall be reinstated [in a] with career service status in the [attorney general's office] Office of the
267     Attorney General at a salary not less than [that which he] the salary that the employee was
268     receiving at the time of [his] the appointment, and the time spent in the other position shall be
269     credited toward seniority in the position with career service[. Reinstatement] status.
270          (c) A reinstatement under Subsection (1)(b) shall be made no later than 60 days after
271     the written notification required [by this Subsection (1)] under Subsection (1)(a) or 60 days
272     after the effective date of termination from the employee's appointive position, whichever is
273     later.
274          (d) The position and assignment to which [the employee shall return] an employee
275     reinstated under Subsection (1)(b) shall be determined by the attorney general.
276          (2) (a) (i) The Office of the Attorney General shall establish and maintain a separate
277     seniority list for each employee category[, which categories].
278          (ii) Categories established under Subsection (2)(a)(i) may include attorneys,
279     investigators, paralegals, secretaries, and others.
280          (b) An employee of the Office of the Attorney General with less seniority than an
281     employee in the same category entitled to be reinstated under this section holds his position
282     subject to any reinstatement provided by Subsection (1).
283          Section 9. Section 67-5-209, which is renumbered from Section 67-5-12 is renumbered
284     and amended to read:
285          [67-5-12].      67-5-209. Dismissal of career service status employees -- Causes --
286     Procedure -- Retention roster -- Reappointment register.
287          (1) (a) [Employees in a] An employee with career service status may be dismissed
288     only:
289          (i) to advance the good of public service;
290          (ii) where funds have expired or work no longer exists; or
291          (iii) for any of the following causes or reasons:
292          (A) noncompliance with provisions in the Office of Attorney General policy manual, or
293     division policies, and, for attorneys, noncompliance with the Rules of Professional Conduct;
294          (B) work performance that is inefficient or incompetent;
295          (C) failure to maintain skills and adequate performance levels;
296          (D) insubordination or disloyalty to the orders of a superior;
297          (E) misfeasance, malfeasance, or nonfeasance;
298          (F) failure to advance the good of the public service, including conduct on or off duty
299     which demeans or harms the effectiveness or ability of the office to fulfill its mission or legal
300     obligations;
301          (G) conduct on or off duty which creates a conflict of interest with the employee's
302     public responsibilities or impact that employee's ability to perform his or her job assignments;
303          (H) any incident involving intimidation, physical harm, threats of physical harm
304     against coworkers, management, or the public;
305          (I) failure to meet the requirements of the position;
306          (J) dishonesty; or
307          (K) misconduct.
308          (b) [Employees in] An employee with career service status may not be dismissed for
309     reasons of race, national origin, religion, or political affiliation.
310          (2) Except in aggravated cases of misconduct, an employee [in a] with career service
311     status may not be suspended, demoted, or dismissed without the following procedures:
312          (a) The attorney general or a designated representative shall notify the employee of the
313     reasons for suspension, demotion, or dismissal.
314          (b) The employee shall have an opportunity to reply and have the reply considered by
315     the attorney general or a designated representative.
316          (c) The employee shall have an opportunity to be heard by the attorney general or a
317     designated representative.
318          (d) Following a hearing, an employee may be suspended, demoted, or dismissed if the
319     attorney general or a designated representative finds adequate reason.
320          (e) If the attorney general or a designated representative finds that retention of an
321     employee would endanger the peace and safety of others or pose a grave threat to the public
322     interest, the employee may be summarily suspended pending administrative hearings and a
323     review by the Career Service Review Office.
324          (3) (a) An employee [in a] with career service status who is aggrieved by a decision of
325     the attorney general or a designated representative to suspend, demote, or dismiss the employee
326     may appeal the decision to the Career Service Review Office or its hearing officers by
327     following the procedures in Title 67, Chapter 19a, Grievance Procedures.
328          (b) Matters other than dismissal or demotion may be appealed to and reviewed by the
329     attorney general or a designated representative whose decision is final with no right of appeal
330     to the Career Service Review Office or its hearing officers.
331          (4) Disciplinary actions shall be supported by credible evidence, but the normal rules
332     of evidence in courts of law do not apply in hearings before the attorney general or a designated
333     representative or the Career Service Review Office or its hearing officers.
334          (5) (a) Reductions in force required by reinstatement of an employee under Section
335     67-5-11, inadequate funds, change of workload, or lack of work shall be governed by a
336     retention roster to be maintained by the Office of the Attorney General and the requirements of
337     this Subsection (5).
338          (b) Except attorney general executive or administrative appointees, [employees not in
339     a] an employee without career service status shall be separated before any employee [in a] with
340     career service status.
341          (c) Retention points for each employee [in a] with career service status shall be based
342     on the employee's seniority in service within each employee category in the Office of the
343     Attorney General, including any military service fulfilled subsequent to the employee's original
344     appointment.
345          (d) Employees [in] with career service status shall be separated in the order of [their]
346     the employees' retention points, the employee with the lowest points to be discharged first.
347          (e) [Those employees who are] An employee serving in [other positions] another
348     position under Section [67-5-11] 57-5-208 shall:
349          (i) have retention points determined as if [they] the employee were working for the
350     [office] Office of the Attorney General; and
351          (ii) be separated in the order of the retention points as if [they] the employee were
352     working in the Office of the Attorney General.
353          (f) An employee [in a] with career service status who is separated by reason of a
354     reduction in force shall be:
355          (i) placed on a reappointment register kept by the Office of the Attorney General for
356     one year; and
357          (ii) offered reappointment to a position in the same category in the Office of the
358     Attorney General before any employee [not having a] without career service status is
359     appointed.
360          Section 10. Section 67-5-210, which is renumbered from Section 67-5-13 is
361     renumbered and amended to read:
362          [67-5-13].      67-5-210. Limitations on political activities by career status
363     employees.
364          (1) An employee [in a] with career service status:
365          (a) may not, while in a pay status, be a state or federal officer in any partisan political
366     party organization or in any statewide partisan political campaign[. The employee, however,];
367     and
368          (b) notwithstanding Subsection (1)(a), may be an officer or delegate in a partisan
369     political party organization at a county or inferior level or a delegate at a state or national level.
370          (2) (a) [An] Except as provided in Subsection (2)(b), an employee [in] with career
371     service status may not be a candidate for any partisan political office[, but upon].
372          (b) (i) Upon application to the attorney general [the], an employee shall be granted a
373     leave of absence without pay [but] and without loss of existing seniority to participate in a
374     partisan political campaign either as an officer or as a candidate.
375          (ii) Time spent during [the] political leave [shall] under Subsection (2)(b)(i) may not be
376     counted for seniority purposes as being in service.
377          (iii) For the purposes of this section, an employee is not considered to be a candidate
378     until the primary elections have been held.
379          (3) (a) An employee [in] with career service status may not engage in political activity
380     during the hours of employment, nor may any person solicit political contributions from any
381     employee [in] with career service status during hours of employment or through state facilities
382     or in any manner impose assessments on [them] the employee for political purposes[; but
383     nothing].
384          (b) Nothing in this section [shall preclude voluntary contributions] precludes a
385     voluntary contribution to a candidate or a political party.
386          (4) (a) Partisan political activity [shall] may not be a basis for employment, promotion,
387     demotion, or dismissal.
388          (b) Any violation of this section may lead to disciplinary action against the employee,
389     which may consist of reprimand, suspension, demotion, or termination as determined by the
390     attorney general.
391          (5) This section [shall] may not be construed to permit partisan political activity by any
392     employee [in] with career service status who is prevented or restricted from engaging in this
393     political activity by the provisions of any federal [act] law or the rules and regulations
394     promulgated under [it] the federal law.
395          Section 11. Repealer.
396          This bill repeals:
397          Section 67-5-6, Attorney General Career Service Act -- Citation.
398          Section 12. Effective date.
399          If approved by two-thirds of all the members elected to each house, this bill takes effect
400     upon approval by the governor, or the day following the constitutional time limit of Utah
401     Constitution, Article VII, Section 8, without the governor's signature, or in the case of a veto,
402     the date of veto override.
403          Section 13. Revisor instructions.
404          The Legislature intends that the Office of Legislative Research and General Counsel, in
405     preparing the Utah Code database for publication, replace any reference in this bill to "the
406     effective date of this section" with the actual effective date of this bill.