Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 284 (2017GS)

Sponsor

Rep. Coleman, K.

Final action

House/ filed 3/9/2017

Outcome

Failed / filed without passage

Summary

What it does

• This bill:
• enacts Title 53B, Chapter 27, Campus Individual Rights Act, including enacting provisions:
• requiring an institution of higher education to allow certain parties to have legal representation at a disciplinary proceeding;
• governing the exchange of evidence at a disciplinary proceeding;
• prohibiting certain conflicts of interest in a disciplinary proceeding; and
• authorizing a cause of action; and
• amends applicable governmental immunity provisions.

Every vote on this bill

Bill text

STUDENT RIGHT TO ACTIVE COUNSEL
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Kim F. Coleman
Senate Sponsor: 
 Todd Weiler
LONG TITLE
General Description:
This bill enacts language related to disciplinary proceedings in an institution of higher
education.
Highlighted Provisions:
This bill:
▸ enacts Title 53B, Chapter 27, Campus Individual Rights Act, including enacting
provisions:
• requiring an institution of higher education to allow certain parties to have legal
representation at a disciplinary proceeding;
• governing the exchange of evidence at a disciplinary proceeding;
• prohibiting certain conflicts of interest in a disciplinary proceeding; and
• authorizing a cause of action; and
▸ amends applicable governmental immunity provisions.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
63G-7-301
, as last amended by Laws of Utah 2015, Chapter 342
ENACTS:
53B-27-101
, Utah Code Annotated 1953
53B-27-102
, Utah Code Annotated 1953
53B-27-201
, Utah Code Annotated 1953
53B-27-203
, Utah Code Annotated 1953
53B-27-204
, Utah Code Annotated 1953
53B-27-205
, Utah Code Annotated 1953
53B-27-206
, Utah Code Annotated 1953
53B-27-207
, Utah Code Annotated 1953
53B-27-208
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
53B-27-101
 is enacted to read:
CHAPTER 27. CAMPUS INDIVIDUAL RIGHTS ACT
Part 1. General Provisions
 53B-27-101.
Title.
(1) This chapter is known as the "Campus Individual Rights Act."
(2) The provisions of this chapter may not be interpreted to:
(a) govern campus law enforcement departments or law enforcement personnel; or
(b) otherwise replace or amend criminal procedures that govern law enforcement
activities.
Section 2. Section 
53B-27-102
 is enacted to read:
 53B-27-102.
Definitions.
As used in this chapter, "institution" means an institution of higher education listed in
Section 
53B-1-102
.
Section 3. Section 
53B-27-201
 is enacted to read:
Part 2. Student Legal Representation
 53B-27-201.
Definitions.
As used in this part:
(1) "Academic dishonesty" means an act of dishonesty relating to a student's academic
work or performance.
(2) "Accused student" means an individual enrolled in an institution who has allegedly
violated a policy or rule.
(3) "Accused student organization" means a student organization that has allegedly
violated a policy or rule.
(4) "Alleged victim" means an individual whose rights are allegedly infringed or who
is otherwise allegedly harmed by an accused student's or student organization's violation of a
policy or rule.
(5) "Evidence" means information that is inculpatory or exculpatory as it relates to an
accusation against an accused student or accused student organization, including:
(a) a complainant statement;
(b) a third-party witness statement;
(c) electronically stored information;
(d) a written communication;
(e) a post to social media; or
(f) demonstrative evidence.
(6) "Full participation" means the opportunity in a student or student organization
disciplinary proceeding to:
(a) make opening and closing statements;
(b) examine and cross-examine a witness; and
(c) provide support, guidance, or advice to an accused student, accused student
organization, or alleged victim.
(7) "Legal representation" means an attorney or, at a person's sole discretion, a
nonattorney advocate.
(8) "Policy or rule" means a policy or rule of an institution that, if violated, may result:
(a) for a student, in suspension of 10 calendar days or more or expulsion from the
institution; or
(b) for a student organization, in the suspension or the removal of institutional
recognition of the student organization.
(9) "Proceeding" means an adjudicatory meeting, whether formal or informal,
including an appeal that is:
(a) required by a policy or rule; or
(b) held to determine whether a policy or rule has been violated.
(10) (a) "Student disciplinary proceeding" means a proceeding initiated by an
institution to determine whether an accused student has violated a policy or rule.
(b) "Student disciplinary proceeding" does not include a proceeding that solely
involves a student's academic dishonesty.
(11) "Student organization" means a club or other organization:
(a) that meets during noninstructional time;
(b) that is recognized by the institution at which the organization meets; and
(c) the majority of whose members are current students at the institution.
(12) (a) "Student organization disciplinary proceeding" means a proceeding initiated by
an institution to determine whether an accused student organization has violated a rule or
policy.
(b) "Student organization disciplinary proceeding" does not include a proceeding that
solely involves a student's academic dishonesty.
Section 4. Section 
53B-27-203
 is enacted to read:
 53B-27-203.
Student disciplinary proceedings -- Legal representation.
(1) An institution may not prohibit:
(a) an accused student from being represented, at the accused student's expense, by
legal representation at a student disciplinary proceeding that pertains to the accused student; or
(b) an accused student's legal representation from full participation in a student
disciplinary proceeding that pertains to the accused student.
(2) An institution may not prohibit:
(a) an alleged victim from being represented, at the alleged victim's expense, by legal
representation at a student disciplinary proceeding that pertains to the alleged victim; or
(b) the alleged victim's legal representation from full participation in a student
disciplinary proceeding that pertains to the alleged victim.
(3) (a) An institution shall provide an accused student described in Subsection (1) or an
alleged victim described in Subsection (2) written notice of the accused student's or alleged
victim's rights under this section.
(b) Unless there are exigent circumstances that reasonably justify proceeding without
providing notice under Subsection (3)(a), an institution shall establish policies and procedures
to ensure that the institution provides written notice of the accused student's or alleged victim's
rights as soon as practicable but no later than seven days before a student disciplinary
proceeding that pertains to the accused student or alleged victim.
Section 5. Section 
53B-27-204
 is enacted to read:
 53B-27-204.
Student organization disciplinary proceedings -- Legal
representation.
(1) An institution may not prohibit:
(a) an accused student organization from being represented, at the accused student
organization's expense, by legal representation at a student organization disciplinary proceeding
that pertains to the accused student organization; or
(b) an accused student organization's legal representation from full participation in a
student organization disciplinary proceeding that pertains to the accused student organization.
(2) An institution may not prohibit:
(a) an alleged victim from being represented, at the alleged victim's expense, by legal
representation at a student organization disciplinary proceeding that pertains to the alleged
victim; or
(b) the alleged victim's legal representation from full participation in a student
organization disciplinary proceeding that pertains to the alleged victim.
(3) (a) An institution shall provide an accused student organization described in
Subsection (1) or an alleged victim described in Subsection (2) written notice of the accused
student organization's or alleged victim's rights under this section.
(b) Unless there are exigent circumstances that reasonably justify proceeding without
providing notice under Subsection (3)(a), an institution shall establish policies and procedures
to ensure that the institution provides written notice of the accused student organization's or
alleged victim's rights as soon as practicable but no later than seven days before a student
organization disciplinary proceeding that pertains to the accused student organization or
alleged victim.
Section 6. Section 
53B-27-205
 is enacted to read:
 53B-27-205.
Exchange of evidence.
(1) An institution shall ensure that an accused student and an alleged victim have
access to all material evidence that is in the institution's possession, including both inculpatory
and exculpatory evidence, not later than one week before the start of a proceeding.
(2) Nothing in this part may be interpreted to:
(a) provide for formal or informal discovery beyond the exchange of evidence
described in Subsection (1); or
(b) incorporate or bind an institution to:
(i) the Utah Rules of Civil Procedure or the Utah Rules of Evidence; or
(ii) the Federal Rules of Civil Procedure or the Federal Rules of Evidence.
Section 7. Section 
53B-27-206
 is enacted to read:
 53B-27-206.
Conflict of interest.
(1) Except as provided in Subsection (2), an institution shall prohibit an individual
employed by or otherwise representing an institution from acting as an adjudicator, hearing
officer, or appellate hearing officer if the individual has also served in one of the following
roles for purposes of a student disciplinary proceeding or student organization disciplinary
proceeding:
(a) an advocate or counselor for an alleged victim, accused student, or accused student
organization;
(b) an investigator;
(c) an institutional prosecutor; or
(d) an advisor to a person described in Subsection (1)(a), (b), or (c).
(2) If an individual employed by the institution or otherwise representing the institution
serves as an investigator and an institutional prosecutor for the alleged violation of a policy or
rule, the institution shall advise an accused student, accused student organization, or alleged
victim before the investigation proceeding.
(3) An individual may not serve as an investigator or institutional prosecutor and an
advocate for an accused student, accused student organization, or alleged victim.
Section 8. Section 
53B-27-207
 is enacted to read:
 53B-27-207.
Application -- Institution policies.
(1) Nothing in this part may be interpreted to prohibit an institution from temporarily
suspending an accused student or accused student organization pending the completion of a
student or student organization disciplinary proceeding.
(2) (a) An institution shall enact policies to govern proceedings in which a student has
a right to active counsel in accordance with this part.
(b) An institution may adopt a policy requiring the attorney or advocate of an accused
student, accused student organization, or alleged victim to submit questions for an opposing
party first to a hearing officer, provided that the hearing officer will only exclude questions that
in the hearing officer's good faith interpretation are irrelevant or unduly prejudicial.
(c) A hearing officer shall place the hearing officer's rationale for excluding a question
on the record for appellate review.
Section 9. Section 
53B-27-208
 is enacted to read:
 53B-27-208.
Cause of action.
(1) An accused student, accused student organization, or alleged victim may bring an
action in a court of competent jurisdiction for an alleged violation of this part by an institution.
(2) If the court finds that an institution committed a violation under Subsection (1), the
court may award, as applicable, the accused student, accused student organization, or alleged
victim:
(a) compensatory damages;
(b) reasonable court costs incurred;
(c) reasonable attorney fees incurred;
(d) monetary damages:
(i) in an amount equal to or more than the cost of tuition paid by or on behalf of the
accused student or alleged victim to the institution for the academic period in which the
violation occurred; and
(ii) in an amount equal to or more than the amount of scholarship funding an accused
student has lost as a result of the outcome of a student disciplinary proceeding; and
(e) any other relief the court determines just.
(3) An action based upon a cause of action under this part shall be commenced within
one year after the date that an accused student, accused student organization, or alleged victim
receives final notice of the outcome of the student or student organization disciplinary
proceeding.
Section 10. Section 
63G-7-301
 is amended to read:
63G-7-301.
Waivers of immunity.
(1) (a) Immunity from suit of each governmental entity is waived as to any contractual
obligation.
(b) Actions arising out of contractual rights or obligations are not subject to the
requirements of Sections 
63G-7-401
, 
63G-7-402
, 
63G-7-403
, or 
63G-7-601
.
(c) The Division of Water Resources is not liable for failure to deliver water from a
reservoir or associated facility authorized by Title 73, Chapter 26, Bear River Development
Act, if the failure to deliver the contractual amount of water is due to drought, other natural
condition, or safety condition that causes a deficiency in the amount of available water.
(2) Immunity from suit of each governmental entity is waived:
(a) as to any action brought to recover, obtain possession of, or quiet title to real or
personal property;
(b) as to any action brought to foreclose mortgages or other liens on real or personal
property, to determine any adverse claim on real or personal property, or to obtain an
adjudication about any mortgage or other lien that the governmental entity may have or claim
on real or personal property;
(c) as to any action based on the negligent destruction, damage, or loss of goods,
merchandise, or other property while it is in the possession of any governmental entity or
employee, if the property was seized for the purpose of forfeiture under any provision of state
law;
(d) subject to Subsection 
63G-7-302
(1), as to any action brought under the authority of
Utah Constitution, Article I, Section 22, for the recovery of compensation from the
governmental entity when the governmental entity has taken or damaged private property for
public uses without just compensation;
(e) subject to Subsection 
63G-7-302
(2), as to any action brought to recover attorney
fees under Sections 
63G-2-405
 and 
63G-2-802
;
(f) for actual damages under Title 67, Chapter 21, Utah Protection of Public Employees
Act;
(g) as to any action brought to obtain relief from a land use regulation that imposes a
substantial burden on the free exercise of religion under Title 63L, Chapter 5, Utah Religious
Land Use Act;
(h) except as provided in Subsection 
63G-7-201
(3), as to any injury caused by:
(i) a defective, unsafe, or dangerous condition of any highway, road, street, alley,
crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or
(ii) any defective or dangerous condition of a public building, structure, dam, reservoir,
or other public improvement; [
and
]
(i) subject to Subsection 
63G-7-201
(4), as to any injury proximately caused by a
negligent act or omission of an employee committed within the scope of employment[
.
]
; and
(j) as to any action brought to obtain relief under Title 53B, Chapter 27, Part 2, Student
Legal Representation.
Legislative Review Note
Office of Legislative Research and General Counsel