Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 199 (2018GS)

Sponsor

Sen. Iwamoto, J.

Final action

Governor Signed 3/16/2018

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• exempts an action filed under the Utah Protection of Public Employees Act from certain requirements of the Governmental Immunity Act of Utah;
• expands the list of entities to whom an employee may communicate wrongful government conduct under the protections provided by the Utah Protection of Public Employees Act;
• defines "independent personnel board" for a state institution of higher education;
• sets a deadline for an independent personnel board to hear a complaint;
• requires a state institution of higher education to adopt a policy to establish an independent personnel board to hear and take action on a complaint alleging adverse action against an employee;
• provides an exception to the 180-day time limit for bringing an action under the Utah Protection of Public Employees Act;
• expands the circumstances under which an employer is required to provide a copy of the Utah Protection of Public Employees Act to an employee; and
• makes technical and conforming amendments.

Every vote on this bill

Bill text

UTAH PROTECTION OF PUBLIC EMPLOYEES ACT
AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Jani Iwamoto
House Sponsor: 
Lee B. Perry
LONG TITLE
General Description:
This bill amends provisions of the Utah Protection of Public Employees Act.
Highlighted Provisions:
This bill:
▸ exempts an action filed under the Utah Protection of Public Employees Act from
certain requirements of the Governmental Immunity Act of Utah;
▸ expands the list of entities to whom an employee may communicate wrongful
government conduct under the protections provided by the Utah Protection of
Public Employees Act;
▸ defines "independent personnel board" for a state institution of higher education;
▸ sets a deadline for an independent personnel board to hear a complaint;
▸ requires a state institution of higher education to adopt a policy to establish an
independent personnel board to hear and take action on a complaint alleging adverse
action against an employee;
▸ provides an exception to the 180-day time limit for bringing an action under the
Utah Protection of Public Employees Act;
▸ expands the circumstances under which an employer is required to provide a copy
of the Utah Protection of Public Employees Act to an employee; and
▸ makes technical and conforming amendments.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
63G-7-203
, as renumbered and amended by Laws of Utah 2008, Chapter 382
67-21-3
, as last amended by Laws of Utah 2013, Chapter 427
67-21-3.7
, as enacted by Laws of Utah 2013, Chapter 427
67-21-4
, as last amended by Laws of Utah 2013, Chapter 427
67-21-9
, as last amended by Laws of Utah 2013, Chapter 427
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
63G-7-203
 is amended to read:
63G-7-203.
Exemptions for certain actions.
[
An action that involves takings law, as defined in Section 
63L-3-102
, is not subject to
the
] 
The
 requirements of Sections 
63G-7-401
, 
63G-7-402
, 
63G-7-403
, and 
63G-7-601
[
.
] 
do not
apply to:
(1) an action that involves takings law, as defined in Section 
63L-3-102
; or
(2) an action filed under Title 67, Chapter 21, Utah Protection of Public Employees
Act.
Section 2. Section 
67-21-3
 is amended to read:
67-21-3.
Reporting of governmental waste or violations of law -- Employer action
-- Exceptions.
(1) (a) An employer may not take adverse action against an employee because the
employee, or a person authorized to act on behalf of the employee, communicates in good
faith:
(i) the waste or misuse of public funds, property, or manpower;
(ii) a violation or suspected violation of a law, rule, or regulation adopted under the law
of this state, a political subdivision of this state, or any recognized entity of the United States;
or
(iii) as it relates to a state government employer:
(A) gross mismanagement;
(B) abuse of authority; or
(C) unethical conduct.
(b) For purposes of Subsection (1)(a), an employee is presumed to have communicated
in good faith if the employee gives written notice or otherwise formally communicates the
conduct described in Subsection (1)(a) to:
(i) a person in authority over the person alleged to have engaged in the conduct
described in Subsection (1)(a);
(ii) the attorney general's office;
(iii) law enforcement, if the conduct is criminal in nature;
(iv) if the employee is a public entity employee, public body employee, legislative
employee, or a judicial employee:
(A) the state auditor's office;
(B) the president of the Senate;
(C) the speaker of the House of Representatives;
(D) the Office of Legislative Auditor General;
[
(D)
] 
(E)
 the governor's office;
[
(E)
] 
(F)
 the state court administrator; or
[
(F)
] 
(G)
 the Division of Finance;
(v) if the employee is a public entity employee, but not an employee of a state
institution of higher education, the director of the Division of Purchasing and General Services;
(vi) if the employee is a political subdivision employee:
(A) the legislative body, or a member of the legislative body, of the political
subdivision;
(B) the governing body, or a member of the governing body, of the political
subdivision;
(C) the top executive of the political subdivision; or
(D) any government official with authority to audit the political subdivision or the
applicable part of the political subdivision; or
(vii) if the employee is an employee of a state institution of higher education:
(A) the State Board of Regents or a member of the State Board of Regents;
(B) the commissioner of higher education;
(C) the president of the state institution of higher education where the employee is
employed; or
(D) the entity that conducts audits of the state institution of higher education where the
employee is employed.
(c) The presumption described in Subsection (1)(b) may be rebutted by showing that
the employee knew or reasonably ought to have known that the report is malicious, false, or
frivolous.
(2) An employer may not take adverse action against an employee because an
employee participates or gives information in an investigation, hearing, court proceeding,
legislative or other inquiry, or other form of administrative review held by the public body.
(3) An employer may not take adverse action against an employee because the
employee has objected to or refused to carry out a directive that the employee reasonably
believes violates a law of this state, a political subdivision of this state, or the United States, or
a rule or regulation adopted under the authority of the laws of this state, a political subdivision
of this state, or the United States.
(4) An employer may not implement rules or policies that unreasonably restrict an
employee's ability to document:
(a) the waste or misuse of public funds, property, or manpower;
(b) a violation or suspected violation of any law, rule, or regulation; or
(c) as it relates to a state government employer:
(i) gross mismanagement;
(ii) abuse of authority; or
(iii) unethical conduct.
Section 3. Section 
67-21-3.7
 is amended to read:
67-21-3.7.
Administrative review for state institution of higher education
employees.
(1) (a) As used in this section, "independent personnel board" means a board where no
member of the board:
(i) is in the same department as the complainant;
(ii) is a supervisor of the complainant; or
(iii) has a conflict of interest in relation to the complainant or an allegation made in the
complaint.
[
(1) (a)
] 
(b)
 A state institution of higher education [
may
] 
shall
 adopt a policy to
establish an independent personnel board to hear and take action on a complaint alleging
adverse action.
[
(b)
] 
(c)
 The policy described in Subsection (1)[
(a)
]
(b)
 shall include:
(i) procedures for filing a complaint and conducting a hearing; and
(ii) a burden of proof on the employer to establish by substantial evidence that the
employer's action was justified by reasons unrelated to the employee's good faith actions under
Section 
67-21-3
.
[
(2) If a state institution of higher education adopts a policy described in Subsection
(1), an
]
(2) (a) An
 employee of [
the
] 
a
 state institution of higher education may file a complaint
with the independent personnel board 
described in Subsection (1)(b)
 alleging adverse action.
(b) An independent personnel board that receives a complaint under Subsection (2)(a)
shall hear the matter, resolve the complaint, and take action under Subsection (3) within the
later of:
(i) 30 days after the day on which the employee files the complaint; or
(ii) a longer period of time, not to exceed 30 additional days, if the employee and the
independent personnel board mutually agree on the longer time period.
(3) If an independent personnel board finds that adverse action is taken in violation of
the policy described in Subsection (1)[
(a)
]
(b)
, the independent personnel board may order
, or
recommend to a final decision maker
:
(a) reinstatement of the employee at the same level as before the adverse action;
(b) the payment of back wages;
(c) full reinstatement of fringe benefits;
(d) full reinstatement of seniority rights; or
(e) if the adverse action includes failure to promote, as described in Subsection
67-19a-101
(8)(d), a pay raise that results in the employee receiving the pay that the employee
would have received if the person had been promoted.
(4) A final decision maker who receives a recommendation under Subsection (3) shall
render a decision and enter an order within seven days after the day on which the final decision
maker receives the recommendation.
Section 4. Section 
67-21-4
 is amended to read:
67-21-4.
Choice of forum -- Remedies for employee bringing action -- Proof
required.
(1) (a) Except as provided in Subsection (1)(b) 
or (d)
, and subject to Subsections
(1)[
(c)
]
(d)
 through (e), an employee who alleges a violation of this chapter may bring a civil
action for appropriate injunctive relief, damages, or both, within 180 days after the occurrence
of the alleged violation of this chapter.
(b) 
Except as provided in Subsection (1)(d):
(i) [
An
] 
an
 employee of a political subdivision that has adopted an ordinance described
in Section 
67-21-3.6
:
(A) may bring a civil action described in Subsection (1)(a) within 180 days after the
day on which the employee has exhausted administrative remedies; and
(B) may not bring a civil action described in Subsection (1)(a) until the employee has
exhausted administrative remedies[
.
]
; and
(ii) [
An
] 
an
 employee of a state institution of higher education [
that has adopted a
policy described in Section 
67-21-3.7
]:
(A) may bring a civil action described in Subsection (1)(a) within 180 days after the
day on which the employee has exhausted administrative remedies; and
(B) may not bring a civil action described in Subsection (1)(a) until the employee has
exhausted administrative remedies.
(c) [
A
] 
Except as provided in Subsection (1)(d), a
 public entity employee who is not a
legislative employee or a judicial employee may bring a claim of retaliatory action by selecting
one of the following methods:
(i) filing a grievance with the Career Service Review Office in accordance with Section
67-19a-402.5
; or
(ii) bringing a civil action for appropriate injunctive relief, damages, or both, within
180 days after the occurrence of the alleged violation of this chapter.
(d) (i) A claimant may bring an action after the 180-day limit described in this
Subsection (1) if:
(A) the claimant originally brought the action within the 180-day time limit;
(B) the action described in Subsection (1)(d)(i)(A) failed or was dismissed for a reason
other than on the merits; and
(C) the claimant brings the new action within 180 days after the day on which the
claimant originally brought the action under Subsection (1)(d)(i)(A).
(ii) A claimant may commence a new action under this Subsection (1)(d) only once.
[
(d)
] 
(e)
 A public entity employee who files a grievance under Subsection
(1)[
(c)
]
(d)
(i):
(i) may not, at any time, bring a civil action in relation to the subject matter of the
grievance;
(ii) may seek a remedy described in Subsection 
67-21-3.5
(2); and
(iii) waives the right to seek a remedy or a type of damages not included in Subsection
67-21-3.5
(2).
[
(e)
] 
(f)
 A public entity employee who files a civil action under Subsection
(1)[
(c)
]
(d)
(ii) may not, at any time, file a grievance with the Career Service Review Office in
relation to the subject matter of the civil action.
(2) An employee who brings a civil action under this section shall bring the action in
the district court for the county where the alleged violation occurred, the county where the
complainant resides, or the county where the person against whom the civil complaint is filed
resides or has the person's principal place of business.
(3) To prevail in an action brought under this section, the employer shall prove by
substantial evidence that the employer's action was justified.
Section 5. Section 
67-21-9
 is amended to read:
67-21-9.
Notice of contents of this chapter -- Posting.
(1) An employer shall post notices and use other appropriate means to keep employees
informed of their protections and obligations under this chapter.
(2) [
Upon request by an employee, or when an employee alleges an adverse action, the
]
An
 employer shall provide [
the
] 
an
 employee with a copy of this chapter[
.
]
:
(a) when the employee is hired;
(b) upon a request by the employee; and
(c) when the employee files a grievance under this chapter.