Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 38 (2018GS)

Sponsor

Sen. Thatcher, D.

Final action

Governor Signed 3/19/2018

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• defines terms;
• establishes a process to remove a county elected officer from office for mental incapacity;
• provides that the provisions of this bill apply only to a county, with at least five members on the county legislative body, that opts into the provisions of this bill;
• requires a county to determine whether the county elected officer has the mental capacity to fulfill the essential functions of the applicable office, with or without reasonable accommodations;
• establishes a process for:
• a voluntary mental capacity evaluation; or
• if the county elected officer refuses to undergo a voluntary mental capacity evaluation, a court order to undergo the evaluation;
• provides certain exceptions to the Open and Public Meetings Act;
• permits the county legislative body to remove a county elected officer from office if the qualified medical professional who conducts the mental capacity evaluation determines that the county elected officer lacks the mental capacity to fulfill the essential functions of the applicable office, with or without reasonable accommodations;
• requires the county legislative body to provide reasonable accommodations under certain circumstances; and
• provides for the award of court costs, attorney fees, and sanctions under certain circumstances.

Every vote on this bill

Bill text

LOCAL ELECTED OFFICER AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Daniel W. Thatcher
House Sponsor: 
Craig Hall
LONG TITLE
General Description:
This bill establishes a process to remove a county elected officer from office for mental
incapacity.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ establishes a process to remove a county elected officer from office for mental
incapacity;
▸ provides that the provisions of this bill apply only to a county, with at least five
members on the county legislative body, that opts into the provisions of this bill;
▸ requires a county to determine whether the county elected officer has the mental
capacity to fulfill the essential functions of the applicable office, with or without
reasonable accommodations;
▸ establishes a process for:
• a voluntary mental capacity evaluation; or
• if the county elected officer refuses to undergo a voluntary mental capacity
evaluation, a court order to undergo the evaluation;
▸ provides certain exceptions to the Open and Public Meetings Act;
▸ permits the county legislative body to remove a county elected officer from office if
the qualified medical professional who conducts the mental capacity evaluation
determines that the county elected officer lacks the mental capacity to fulfill the
essential functions of the applicable office, with or without reasonable
accommodations;
▸ requires the county legislative body to provide reasonable accommodations under
certain circumstances; and
▸ provides for the award of court costs, attorney fees, and sanctions under certain
circumstances.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
ENACTS:
20A-1-901
, Utah Code Annotated 1953
20A-1-902
, Utah Code Annotated 1953
20A-1-903
, Utah Code Annotated 1953
20A-1-904
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
20A-1-901
 is enacted to read:
Part 9. Removal of County Elected Officer
 20A-1-901.
Definitions.
As used in this part:
(1) "Applicable office" means the office held by the subject officer.
(2) "Mental capacity evaluation" means an evaluation by a qualified medical
professional to determine whether the subject officer has the mental capacity to fulfill the
essential functions of the applicable office, with or without reasonable accommodations.
(3) "Officer" means a county officer.
(4) "Results of the mental capacity evaluation" means a statement by the qualified
medical professional who conducts the mental capacity evaluation that the subject officer:
(a) has the mental capacity to fulfill the essential functions of the applicable office,
without reasonable accommodations;
(b) has the mental capacity to fulfill the essential functions of the applicable office,
with specified reasonable accommodations; or
(c) lacks the mental capacity to fulfill the essential functions of the applicable office,
with or without reasonable accommodations.
(5) "Subject officer" means the officer who is subject to proceedings under this part to
determine whether the officer has the mental capacity to fulfill the essential functions of the
officer's office, with or without reasonable accommodations.
(6) "Unanimous" means a vote of all members of a county legislative body where all
members of the county legislative body, not including the subject officer, vote on the same side
of the motion.
Section 2. Section 
20A-1-902
 is enacted to read:
 20A-1-902.
Removal of officer from office -- Initial determination.
(1) (a) A county legislative body may remove an officer from office in accordance with
this part if:
(i) the county legislative body adopts the provisions of this part by ordinance, without
additions, deletions, or modifications;
(ii) the officer lacks the mental capacity to fulfill the essential functions of the
applicable office, with or without reasonable accommodations; and
(iii) the county legislative body consists of at least five members.
(b) This section does not apply to a county, unless the county:
(i) has adopted the ordinance described in Subsection (1)(a)(i); and
(ii) has at least five members on the county legislative body.
(2) Before removing the subject officer from office under Subsection (1), the county
legislative body shall hold a closed meeting, as authorized under Subsection 
52-4-205
(1)(a), to
discuss whether the subject officer has the mental capacity to fulfill the essential functions of
the officer's office, with or without reasonable accommodations.
(3) At the meeting described in Subsection (2):
(a) the county legislative body shall give the subject officer the opportunity to discuss
the subject officer's mental capacity to fulfill the essential functions of the applicable office and
any reasonable accommodations that would enable the subject officer to continue to function in
the applicable office; and
(b) the subject officer may bring one individual to the meeting to assist the subject
officer in the discussion.
(4) (a) After the discussion described in Subsection (3), the county legislative body
may exclude the subject officer and the individual described in Subsection (3)(b) from the
closed portion of the meeting to discuss whether the subject officer has the mental capacity to
fulfill the essential functions of the applicable office, with or without reasonable
accommodations.
(b) If the subject officer is a member of the county legislative body:
(i) the county legislative body may exclude the subject officer and the individual
described in Subsection (3)(b) from the portion of the closed meeting described in Subsection
(4)(a); and
(ii) the subject officer is recused from voting on any decision, described in this part, of
the county legislative body.
(c) Notwithstanding the provisions of Title 52, Chapter 4, Open and Public Meetings
Act, the county legislative body shall meet in a closed meeting to vote on whether the subject
officer has the ability to fulfill the essential functions of the applicable office, with or without
reasonable accommodations.
(5) If the county legislative body reaches a unanimous preliminary conclusion that the
subject officer lacks the mental capacity to fulfill the essential functions of the applicable
office, with or without reasonable accommodations, the county legislative body shall:
(a) confidentially inform the subject officer of the vote; and
(b) allow the subject officer five calendar days, after the day on which the county
legislative body makes the conclusion, to:
(i) resign from the applicable office;
(ii) (A) voluntarily agree to undergo a mental capacity evaluation at the expense of the
county; and
(B) sign a waiver to disclose only the results of the mental capacity evaluation to the
county legislative body; or
(iii) refuse to take any action.
(6) If the county legislative body does not reach a unanimous preliminary conclusion
that the subject officer lacks the mental capacity to fulfill the essential functions of the
applicable office, with or without reasonable accommodations:
(a) the county legislative body shall:
(i) publicly announce that the vote failed, without disclosing the number of votes for or
against and without disclosing the vote of individual members of the county legislative body;
and
(ii) provide any necessary reasonable accommodations; and
(b) the subject officer may continue to function in the applicable office.
Section 3. Section 
20A-1-903
 is enacted to read:
 20A-1-903.
Voluntary evaluation.
(1) This section does not apply to a county, unless the county:
(a) has adopted the ordinance described in Subsection 
20A-1-902
(1)(a)(i); and
(b) has at least five members on the county legislative body.
(2) At the end of the five-day period described in Subsection 
20A-1-902
(5)(b), if the
subject officer agrees to the voluntary mental capacity evaluation option described in
Subsection 
20A-1-902
(5)(b)(ii):
(a) the county legislative body and the subject officer shall mutually agree on a
qualified medical professional to conduct the mental capacity evaluation; and
(b) the subject officer shall undergo the mental capacity evaluation within 15 calendar
days after the day on which the subject officer agrees to undergo the mental capacity
evaluation, or longer if the county legislative body and the subject officer agree to an extended
period.
(3) Notwithstanding the provisions of Title 52, Chapter 4, Open and Public Meetings
Act, any action taken by the county legislative body under Subsection (2) shall occur in a
closed meeting.
(4) If the qualified medical professional concludes that the subject officer has the
mental capacity to fulfill the essential functions of the applicable office, with or without
reasonable accommodations:
(a) the county legislative body shall provide any necessary reasonable
accommodations; and
(b) the subject officer may continue to function in the applicable office.
(5) (a) If the qualified medical professional concludes that the subject officer lacks the
mental capacity to fulfill the essential functions of the applicable office, with or without
reasonable accommodations, the subject officer may resign from office.
(b) If the subject officer does not resign from office within five calendar days after the
day on which the qualified medical professional makes the conclusion described in Subsection
(5)(a), the county legislative body may, in an open meeting by unanimous vote, remove the
subject officer from the applicable office.
Section 4. Section 
20A-1-904
 is enacted to read:
 20A-1-904.
Court order for involuntary evaluation.
(1) This section does not apply to a county, unless the county:
(a) has adopted the ordinance described in Subsection 
20A-1-902
(1)(a)(i); and
(b) has at least five members on the county legislative body.
(2) The county legislative body may file an action against the subject officer in district
court for an order to undergo a mental capacity evaluation if:
(a) the county legislative body:
(i) unanimously concludes that the subject officer lacks the mental capacity to fulfill
the essential functions of the applicable office, with or without reasonable accommodations, in
accordance with the requirements of Section 
20A-1-902
; and
(ii) complies with the requirements of Subsections 
20A-1-902
(2) through (5); and
(b) (i) the subject officer does not, within the five-day period described in Subsection
20A-1-902
(5)(b):
(A) resign from the applicable office; or
(B) agree to undergo a voluntary mental capacity evaluation and sign a waiver to
disclose only the results of the mental capacity evaluation to the county legislative body;
(ii) the subject officer does not complete the mental capacity evaluation within the
15-day period described in Subsection 
20A-1-903
(2)(b), or any longer period agreed to
between the subject officer and the county legislative body; or
(iii) the subject officer and the county legislative body cannot mutually agree on a
qualified medical professional to conduct the mental capacity evaluation.
(3) The district court shall order the subject officer to undergo a mental capacity
evaluation by a qualified medical professional appointed by the court, and shall provide only
the results of the mental capacity evaluation to the county legislative body, if the court finds
that there is reasonable cause to believe that the subject officer may lack the mental capacity to
fulfill the essential functions of the applicable office, with or without reasonable
accommodations.
(4) If the qualified medical professional concludes that the subject officer has the
mental capacity to fulfill the essential functions of the applicable office, with or without
reasonable accommodations:
(a) the county legislative body shall provide any necessary reasonable
accommodations;
(b) the subject officer may continue to function in the applicable office; and
(c) the court shall order the county legislative body to pay the court costs and
reasonable attorney fees of the subject officer.
(5) (a) If the qualified medical professional concludes that the subject officer lacks the
mental capacity to fulfill the essential functions of the applicable office, with or without
reasonable accommodations, the subject officer may resign from office.
(b) If the subject officer does not resign from office within five calendar days after the
day on which the qualified medical professional makes the conclusion described in Subsection
(5)(a), the county legislative body may, in an open meeting by unanimous vote, remove the
subject officer from the applicable office.
(6) The court shall dismiss an action filed under this section, and rescind any order to
undergo a mental capacity evaluation, if the subject officer resigns from the applicable office.
(7) The court may order sanctions against the county legislative body if the court finds,
by clear and convincing evidence, that the county legislative body filed or pursued an action
described in this section in bad faith.