Resolution 2019-08 Public Property Policy

July 20, 2022 By
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Resolution No. 2019-08

A RESOLUTION CREATING A TOWN OF LEEDS PUBLIC PROPERTY ACCEPTABLE USE POLICY BY PUBLIC SERVANTS AFFILIATED WITH THE TOWN OF LEEDS AND AS NEEDED BY HOUSE BILL 163 PASSED DURING THE 2019 GENERAL SESSION OF THE UTAH LEGISLATURE

(“Acceptable Use Policy”)

WHEREAS, House Bill 163 entitled “Offenses Against the Administration of Government Amendments” passed during the 2019 General Session of the Utah Legislature (“HB 163”); and

WHEREAS, HB 163 has a special effective date of July 1, 2019; and

WHEREAS, pursuant to HB 163, a “public officer” means (a) an elected official of a public entity; (b) an individual appointed to, or serving an unexpired term of, an elected official of a public entity; (c) a judge of a court of record or not of record, including justice court judges; or

  1. a member of the Board of Pardons and Parole1; and

WHEREAS, pursuant to HB 163, a “public servant” means (i) a public officer; (ii) an appointed official, employee, consultant, or independent contractor of a public entity; or (iii) a person hired or paid by a public entity to perform a government function. Public servant includes a person described herein upon the person’s election, appointment, contracting, or other selection, regardless of whether the person has begun to officially occupy the position of a public servant2; and

WHEREAS, pursuant to HB 163, “public property” means real or personal property that is owned, held, or managed by a public entity. “Public property” includes real or personal property that is owned, held, or managed by a public entity after the real or personal property is transferred by the public entity to an independent contractor of the public entity. “Public property” remains public property while in the possession of an independent contractor of a public entity for the purpose of providing a program or service for, or on behalf of, the public entity3; and

WHEREAS, pursuant to HB 163, “authorized personal use” means 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

1 Utah Code Ann. § 76-1-601(13) (effective July 1, 2019).

2 Utah Code Ann. § 76-1-601(14) (effective July 1, 2019).

3 Utah Code Ann. § 76-8-101(5) (effective July 1, 2019).

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 policy4; and

WHEREAS, pursuant to HB 163, “authorized personal use” also means the incidental 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 use of the public property for a personal matter is not prohibited by law or by the public servant’s public entity5; and

WHEREAS, pursuant to Utah Code Ann. § 11-57-102, “personal use expenditure” means an expenditure made without the authority of law that: (i) is not directly related to the performance of an activity as an officer or employee of a political subdivision; (ii) primarily furthers a personal interest of an officer or employee of a political subdivision or the family, a friend, or an associate of an officer or employee of a political subdivision; and (iii) would constitute taxable income under federal law. “Personal use expenditure” does not include: (i) a de minimis or incidental expenditure; (ii) a monthly vehicle allowance; or (iii) a government vehicle that an officer or employee uses to travel to and from the officer or employee’s official duties, including an allowance for personal use as provided by a written policy of the political subdivision.

WHEREAS, the Town Council desires to establish a written policy which authorizes public servants to use or possess public property for personal use as delineated in this written policy; and

WHEREAS, HB 163, as drafted, has the potential for public servants who are performing their duties in good faith to unknowingly or unintentionally violate the provisions of HB 163, thereby potentially committing a felony; and

WHEREAS, the Town Council desires to create a Town of Leeds Public Property Acceptable Use Policy by Public Servants Affiliated with the Town of Leeds (“Acceptable Use Policy”) that will ensure public servants are not at risk of unknowingly or unintentionally violating the provisions of HB 163 by their personal use of public property, while ensuring public servants are using public property in an authorized and appropriate manner; and

WHEREAS, the Town Council does hereby find that it is in the best interest of the Town of Leeds to adopt this Acceptable Use Policy; and

NOW, THEREFORE, be it resolved by the Town Council, Town of Leeds, Utah, as follows:

    1. There is hereby created this Town of Leeds Public Property Acceptable Use Policy by Public Servants Affiliated with the Town of Leeds, which will also be known as the

4 Utah Code Ann. § 76-8-402(1)(a) (effective July 1, 2019).

5 Utah Code Ann. § 76-8-402(1)(b) (effective July 1, 2019).

“Acceptable Use Policy.” This Acceptable Use Policy constitutes the written policy referenced in HB 163 and more particularly Utah Code Ann. 76-8-402(1)(a)(iii).

    1. The recitals above are hereby incorporated into this Acceptable Use Policy. The definitions found in HB 163 are hereby incorporated into this Acceptable Use Policy.
    2. For the purposes of this Acceptable Use Policy, it is hereby an authorized personal 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; and (iii) the public servant uses and possesses the public property in a lawful manner and in accordance with this Acceptable Use Policy.
    3. For the purposes of this Acceptable Use Policy, it is hereby an incidental authorized personal use of public property, for a personal matter, by a public servant if: (i) the value of the use or possession of the public property for personal use is less than

$100.00 per instance of use or possession; and (ii) the incidental use of the public property for a personal matter is not prohibited by law or by this Acceptable Use Policy. Town Council hereby finds that the value of less than $100.00 per instance of use or possession of public property for personal use is incidental and is substantially outweighed by the value provided to the Town of Leeds by the public servant’s use or possession of the public property for a public purpose.

    1. Public servants are encouraged to use or possess public property for personal use in a manner that:

      1. does not damage the public property;
      2. does not violate any written policy of the Town of Leeds
      3. does not disrupt or impede the use of the public property by the Town of Leeds;
      4. does not create a security risk to the Town of Leeds;
      5. does not result in significant and additional costs charged to or financial obligations by the Town of Leeds;
      6. is not prohibited by law; and
      7. allows public servants who have been authorized to use or possess public property for personal use to do so without fear of being prosecuted.
    2. The Town Council has authorized and hereby retains the ability to authorize the personal use or possession of public property as part of the compensation package and benefits of public servants, including but not limited to vehicles, bonuses, awards, electronics (PC’s, laptops, tablets, iPads, telephones), electrical power, and other related uses and/or possession of public property, including use of public property for exclusively personal use.
    3. The Town Council hereby retains the ability to withdraw authorization for the public servant’s personal use or possession of public property and may do so as follows:

      1. Provide the public servant with a written statement that the authorization for the personal use or possession of the public property is withdrawn. The written statement shall identify with specificity the public property and may include reason(s) for the withdrawal.
      2. If the personal use or possession of the public property continues after the written statement is provided, then the public servant may be subject to discipline, up to and including termination from employment with the Town of Leeds. If the public servant is a public officer, then the public officer may receive a public censure by the Town Council.
    4. If a public servant violates the provisions of HB 163 or this Acceptable Use Policy, the Town Council hereby authorizes the personal use or possession of public property if the public servant, within 30 days or such longer payment schedule as determined by the Town Council in its reasonable discretion, reimburses the Town of Leeds for the value of the public servant’s personal use or possession of public property.
    5. If a public servant violates the provisions of HB 163 or this Acceptable Use Policy, the Town Council hereby authorizes the personal use or possession of public property if the public servant, within 30 days or such longer payment schedule as determined by the Town Council in its reasonable discretion, reimburses the Town of Leeds for the entire cost charged to or financial obligation incurred by the Town of Leeds as a result of the public servant’s personal use of public property.
    6. Pursuant to Utah Code Ann. § 11-57-103, if a public servant intentionally uses public funds for a personal use expenditure; or incurs indebtedness or liability on behalf of, or payable by the Town of Leeds for a personal use expenditure, then the public servant shall deposit the amount of the personal use expenditure into the fund or account from which the personal use expenditure was disbursed or payment for the indebtedness or liability for a personal use expenditure was disbursed, plus require the public servant to remit an administrative penalty in an amount equal to 50% of the personal use expenditure to the Town of Leeds.

      1. Any public servant of the Town of Leeds who has been found to have made a personal use expenditure in violation of Utah Code Ann. § 11-57-103 may appeal the finding to the Town Council of the Town of Leeds, Utah.

        1. The public servant or the Town of Leeds, may appeal the decision of the Town Council by filing a petition with the 4th District Court for the Town of Leeds. Any such appeal shall be barred unless it is filed within twenty

(20) calendar days of the date when the decision was recorded in the official minutes. The decision of the Town Council shall not be set aside unless the decision of the Town Council is found to be arbitrary, capricious, or illegal.

        1. The Town Council shall transmit to the reviewing court the complete record of its proceedings, including the written notice, exhibits, minutes, findings, and any transcripts. The person filing the petition for review shall request from the Town of Leeds a verbatim transcript of the record and such person shall pay the reasonable transcription fees.
        2. The review by the District Court is limited to the record and the Court may not accept or consider evidence outside of the record unless it determines that such evidence was offered to the Town of Leeds and was improperly excluded. If there is no record, the Court may call witnesses and take evidence.
        3. The Court shall affirm the decision of the Town Council if the decision is supported by substantial evidence in the record.
        4. No decision of the Town Council shall be subject to rehearing by the Town Council, except when remanded from a court of competent jurisdiction.
      1. The Town of Leeds may withhold all or a portion of the wages of the public servant of the Town of Leeds who has violated Utah Code Ann. § 11-57-103 until the public servant has deposited the amount of the prohibited personal use expenditure plus remitted the administrative penalty.
      2. If the public servant has requested an appeal, then the Town of Leeds may only withhold the wages of the public servant after the appeal process has confirmed that the public servant has violated Utah Code Ann. § 11-57-103.
    1. All Town of Leeds policies are hereby repealed and replaced to the limited extent that they contradict or interfere with this Acceptable Use Policy and/or federal or state law.
    2. If any provision of this Acceptable Use Policy is held to be invalid or void by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Acceptable Use Policy and shall in no way affect any other provision contained herein. If such provision shall be deemed invalid due to its scope or breadth, such provision shall be deemed valid to the extent of the scope and breadth permitted by law.

APPROVED, RESOLVED, AND ADOPTED this 14th day of August 2019.

Town of Leeds Council

By: ___________________________________

Wayne Peterson, Mayor

[Seal] Voting:

Mayor: Wayne Peterson Yea    Nay ___

Councilman: Alan Roberts Yea      Nay ___

Councilman: Danielle Stirling Yea      Nay ___

Councilman: Elliott Sheltman Yea      Nay ___

Councilman: Nate Blake Yea     Nay ___

Attest:

__________________________________

Peggy Rosebush, Town Clerk

Deposited in the office of Leeds Recorder this ____ day of August, 2019.

Recorded this ____ day of August, 2019.

ATTEST:

By: Peggy Rosebush, Clerk/Recorder

APPROVED AS TO FORM AND LEGALITY:

By: Craig Hall,

Town Counsel