Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 98 First Substitute (2020GS)

Sponsor

Rep. Hall, C.

Final action

Governor Signed 3/24/2020

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• provides an exception for the de minimus use of public property by a public servant;
• modifies the elements of the crime of misuse of public money;
• makes it a crime for a public servant to knowingly engage in certain misconduct in relation to public property;
• establishes criminal penalties based on the value of, or cost to repair, public property;
• addresses related penalties; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

OFFENSES AGAINST THE ADMINISTRATION OF
GOVERNMENT AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Craig Hall
Senate Sponsor: 
Todd Weiler
LONG TITLE
General Description:
This bill amends criminal provisions relating to public property and public money.
Highlighted Provisions:
This bill:
▸ provides an exception for the de minimus use of public property by a public servant;
▸ modifies the elements of the crime of misuse of public money;
▸ makes it a crime for a public servant to knowingly engage in certain misconduct in
relation to public property;
▸ establishes criminal penalties based on the value of, or cost to repair, public
property;
▸ addresses related penalties; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
76-8-402
, as last amended by Laws of Utah 2019, Chapter 211
76-8-403
, as last amended by Laws of Utah 1995, Chapter 232
76-8-404
, as last amended by Laws of Utah 2019, Chapter 211
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
76-8-402
 is amended to read:
76-8-402.
Misusing public money or public property.
(1) As used in this section, "authorized personal use" means:
(a) the use of public property, for a personal matter, by a public servant if:
(i) the public servant is authorized to use or possess the public property to fulfill the
public servant's duties as a public servant;
(ii) the primary purpose of the public servant using or possessing the public property is
to fulfill the public servant's duties as a public servant;
(iii) at the time the public servant uses the public property for a personal matter, a
written policy of the public servant's public entity is in effect that authorizes the public servant
to use or possess the public property for personal use in addition to the primary purpose of
fulfilling the public servant's duties as a public servant; and
(iv) the public servant uses and possesses the public property in a lawful manner and in
accordance with the policy described in Subsection (1)(a)(iii); or
(b) incidental 
or de minimus
 use of public property for a personal matter by a public
servant, if:
(i) the value provided to the public servant's public entity by the public servant's use or
possession of the public property for a public purpose substantially outweighs the personal
benefit received by the employee from the incidental use of the public property for a personal
matter; and
(ii) the incidental 
or de minimus
 use of the public property for a personal matter is not
prohibited by law or by the public servant's public entity.
(2) It is unlawful for a public servant to 
knowingly
:
(a) appropriate public money [
or public property
] to the public servant's own use or
benefit or to the use or benefit of another without authority of law;
(b) loan or transfer public money [
or public property
] without authority of law;
(c) fail to keep public money [
or public property
] in the public servant's possession until
disbursed by authority of law;
(d) [
unlawfully
] deposit public money in a bank or with another person 
in violation of
the written policy of the public servant's public entity or the requirements of law
;
(e) [
knowingly
] keep a false account or make a false entry or erasure in an account of,
or relating to, public money;
(f) fraudulently alter, falsify, conceal, or destroy an account described in Subsection
(2)(e);
(g) [
willfully
] refuse or omit to pay over, on demand, any public money in the public
servant's custody or control, upon the presentation of a draft, order, or warrant drawn upon the
public money by competent authority;
(h) [
willfully
] omit to transfer public money when the transfer is required by law;[
 or
]
(i) [
willfully
] omit or refuse to pay over, to any officer or person authorized by law to
receive public money, public money received by the public servant under any duty imposed on
the public servant by law[
.
]
;
(j) damage or dispose of public property in violation of the written policy of the public
servant's public entity or the requirements of law;
(k) obtain or exercise unauthorized control of public property with the intent to deprive
the owner of possession of the public property;
(l) obtain or exercise unauthorized control of public property with the intent to
temporarily appropriate, possess, use, or deprive the owner of possession of the public
property;
(m) appropriate public property to the public servant's own use or benefit or to the use
or benefit of another without authority of law;
(n) loan or transfer public property without authority of law; or
(o) fail to keep public property in the public servant's possession until returned to the
property owner, or disposed of or relinquished, in accordance with the written policy of the
public servant's public entity and the requirements of law.
(3) Except as provided in Subsection (4), a violation of [
Subsection (2)
] 
Subsections
(2)(a) through (i)
 is a felony of the third degree.
(4) A violation of [
Subsection (2)
] 
Subsections (2)(a) through (i)
 is a felony of the
second degree if:
(a) the value of the public money [
or the value of the use of the public property
]
exceeds $5,000;
(b) the amount of the false account exceeds $5,000;
(c) the amount falsely entered exceeds $5,000;
(d) the amount that is the difference between the original amount and the fraudulently
altered amount exceeds $5,000; or
(e) the amount falsely erased, fraudulently concealed, destroyed, or falsified in the
account exceeds $5,000.
(5) A violation of Subsection (2)(j) is:
(a) a class B misdemeanor, if the cost to repair or replace the public property is less
than $500;
(b) a class A misdemeanor, if the cost to repair or replace the public property is $500 or
more, but less than $1,500;
(c) a felony of the third degree, if the cost to repair or replace the public property is
$1,500 or more, but less than $5,000; or
(d) a felony of the second degree, if the cost to repair or replace the public property is
$5,000 or more.
(6) A violation of Subsection (2)(k), (m), (n), or (o) is:
(a) a class B misdemeanor, if the value of the public property is less than $500;
(b) a class A misdemeanor, if the value of the public property is $500 or more, but less
than $1,500;
(c) a felony of the third degree, if the value of the public property is $1,500 or more,
but less than $5,000; or
(d) a felony of the second degree, if the value of the public property is $5,000 or more.
(7) A violation of Subsection (2)(l) is:
(a) a class C misdemeanor, if the value of the public property is less than $500;
(b) a class B misdemeanor, if the value of the public property is $500 or more, but less
than $1,500;
(c) a class A misdemeanor, if the value of the public property is $1,500 or more, but
less than $5,000; or
(d) a felony of the third degree, if the value of the public property is $5,000 or more.
[
(5)
] 
(8)
 In addition to the penalty described in [
Subsection (3) or (4)
] 
Subsections (3)
through (7)
, a public officer who [
violates
] 
is convicted of a felony violation of
 Subsection (2):
(a) is subject to the penalties described in Section 
76-8-404
; and
(b) may not disburse public funds or access public accounts.
[
(6)
] 
(9)
 (a) A public servant is not guilty of a violation of [
this section
] 
Subsections
(2)(j) through (o)
 for authorized personal use of public property.
[
(b) Subsection (6)(a) does not apply if:
]
[
(i) the public servant's personal use of the public property does not constitute
authorized personal use at the time of the personal use; and
]
[
(ii) a public entity modifies or adopts a policy or law, or takes other action, to
retroactively authorize or approve the personal use of the public property by the public
servant.
]
(10) It is not a defense to a violation of Subsection (2) that:
(a) subsequent to the violation, a public entity modifies or adopts a policy or law, or
takes other action, to retroactively authorize, approve, or ratify the conduct that constitutes a
violation; or
(b) a written policy of the public servant's public entity permits private use of the
public property if it is proven, beyond a reasonable doubt, that the public servant did not
comply with the written policy.
Section 2. Section 
76-8-403
 is amended to read:
76-8-403.
Failure to keep and pay over public money.
[
Every
] 
Except as otherwise provided in Subsection 
76-8-402
(4), a
 person who
receives, safekeeps, transfers, or disburses public money who neglects or fails to keep and pay
over the money in the manner prescribed by law is guilty of a felony of the third degree.
Section 3. Section 
76-8-404
 is amended to read:
76-8-404.
Making profit from or misusing public money or public property --
Disqualification from office -- Criminal penalty.
A public officer, regardless of whether the public officer receives, safekeeps, transfers,
disburses, or has a fiduciary relationship with public money, who makes a profit from or out of
public money or public property, or who uses public money or public property in a manner or
for a purpose not authorized by law[
, is guilty
] 
and is convicted
 of a felony [
as provided in
]
under
 Section 
76-8-402
 [
and
] is, in addition to the punishment provided by law, disqualified
from holding public office.