Enrolled Copy S.B. 92
1 PROJECT ENTITY OVERSIGHT MODIFICATIONS
2 2022 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Derrin R. Owens
5 House Sponsor: Val L. Peterson
6
7 LONG TITLE
8 General Description:
9 This bill amends provisions related to the procurement and meeting practices of project
10 entities.
11 Highlighted Provisions:
12 This bill:
13 < defines terms;
14 < requires project entities to comply with the Open and Public Meetings Act;
15 < describes situations in which a project entity may close a meeting under the Open
16 and Public Meetings Act; and
17 < requires project entities to:
18 C adopt provisions related to procurement; and
19 C comply with provisions of the Utah Procurement Code.
20 Money Appropriated in this Bill:
21 None
22 Other Special Clauses:
23 None
24 Utah Code Sections Affected:
25 AMENDS:
26 11-13-316, as enacted by Laws of Utah 2021, Second Special Session, Chapter 7
27 11-13-603, as last amended by Laws of Utah 2021, Second Special Session, Chapter 7
28 52-4-103, as last amended by Laws of Utah 2019, Chapters 25 and 246
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29 52-4-204, as last amended by Laws of Utah 2021, Chapter 217
30 52-4-205, as last amended by Laws of Utah 2021, Chapters 179 and 231
31 63G-6a-103, as last amended by Laws of Utah 2021, Chapters 179, 344, and 345
32 ENACTS:
33 63G-6a-107.5, Utah Code Annotated 1953
34
35 Be it enacted by the Legislature of the state of Utah:
36 Section 1. Section 11-13-316 is amended to read:
37 11-13-316. Project entity oversight.
38 (1) Notwithstanding any other provision of law, a project entity is a political
39 subdivision that:
40 (a) pursuant to Utah Constitution, Article VI, Section 33, is subject to the authority of
41 the legislative auditor to conduct audits of any funds, functions, and accounts in any political
42 subdivision of this state; and
43 (b) is subject to the requirement to provide the Office of the Legislative Auditor
44 General with all records, documents, and reports necessary for the legislative auditor general or
45 the office to fulfill the duties described in Subsection (1)(a).
46 (2) Subsection (1) takes precedence over Section 36-12-15.
47 (3) A project entity shall comply with Title 63G, Chapter 6a, Utah Procurement Code,
48 unless the governing board of the project entity adopts policies for procurement that enable the
49 project entity to efficiently fulfill the project entity's responsibilities under the project entity's
50 organization agreement.
51 (4) If a project entity does not adopt policies for procurement under Subsection (3),
52 then for purposes of Title 63G, Chapter 6a, Utah Procurement Code:
53 (a) the project entity is a local government procurement unit, as defined in Section
54 63G-6a-103; and
55 (b) the governing board is a procurement official, as defined in Section 63G-6a-103.
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56 (5) A project entity shall comply with Title 52, Chapter 4, Open and Public Meetings
57 Act.
58 Section 2. Section 11-13-603 is amended to read:
59 11-13-603. Taxed interlocal entity.
60 (1) Except for purposes of an audit, examination, or review by the Office of the
61 Legislative Auditor General as described in Subsection (8) and notwithstanding any other
62 provision of law:
63 (a) the use of an asset by a taxed interlocal entity does not constitute the use of a public
64 asset;
65 (b) a taxed interlocal entity's use of an asset that was a public asset before the taxed
66 interlocal entity's use of the asset does not constitute a taxed interlocal entity's use of a public
67 asset;
68 (c) an official of a project entity is not a public treasurer; and
69 (d) a taxed interlocal entity's governing board shall determine and direct the use of an
70 asset by the taxed interlocal entity.
71 (2) (a) A taxed interlocal entity that is not a project entity is not subject to the
72 provisions of Title 63G, Chapter 6a, Utah Procurement Code.
73 (b) A project entity is subject to the provisions of Title 63G, Chapter 6a, Utah
74 Procurement Code to the extent described in Section 11-13-316.
75 (3) (a) A taxed interlocal entity is not a participating local entity as defined in Section
76 67-3-12.
77 (b) For each fiscal year of a taxed interlocal entity, the taxed interlocal entity shall
78 provide:
79 (i) the taxed interlocal entity's financial statements for and as of the end of the fiscal
80 year and the prior fiscal year, including:
81 (A) the taxed interlocal entity's statement of net position as of the end of the fiscal year
82 and the prior fiscal year, and the related statements of revenues and expenses and of cash flows
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83 for the fiscal year; or
84 (B) financial statements that are equivalent to the financial statements described in
85 Subsection (3)(b)(i)(A) and, at the time the financial statements were created, were in
86 compliance with generally accepted accounting principles that are applicable to taxed interlocal
87 entities; and
88 (ii) the accompanying auditor's report and management's discussion and analysis with
89 respect to the taxed interlocal entity's financial statements for and as of the end of the fiscal
90 year.
91 (c) The taxed interlocal entity shall provide the information described in Subsection
92 (3)(b) within a reasonable time after the taxed interlocal entity's independent auditor delivers to
93 the taxed interlocal entity's governing board the auditor's report with respect to the financial
94 statements for and as of the end of the fiscal year.
95 (d) Notwithstanding Subsections (3)(b) and (c) or a taxed interlocal entity's compliance
96 with one or more of the requirements of Title 63A, Chapter 3, Division of Finance:
97 (i) the taxed interlocal entity is not subject to Title 63A, Chapter 3, Division of
98 Finance; and
99 (ii) the information described in Subsection (3)(b)(i) or (ii) does not constitute public
100 financial information as defined in Section 67-3-12.
101 (4) (a) A taxed interlocal entity's governing board is not a governing board as defined
102 in Section 51-2a-102.
103 (b) A taxed interlocal entity is not subject to the provisions of Title 51, Chapter 2a,
104 Accounting Reports from Political Subdivisions, Interlocal Organizations, and Other Local
105 Entities Act.
106 (5) Notwithstanding any other provision of law, a taxed interlocal entity is not subject
107 to the following provisions:
108 (a) Part 4, Governance;
109 (b) Part 5, Fiscal Procedures for Interlocal Entities;
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110 (c) Subsection 11-13-204(1)(a)(i) or (ii)(J);
111 (d) Subsection 11-13-206(1)(f);
112 (e) Subsection 11-13-218(5)(a);
113 (f) Section 11-13-225;
114 (g) Section 11-13-226; or
115 (h) Section 53-2a-605.
116 (6) (a) In addition to having the powers described in Subsection 11-13-204(1)(a)(ii), a
117 taxed interlocal entity may, for the regulation of the entity's affairs and conduct of its business,
118 adopt, amend, or repeal bylaws, policies, or procedures.
119 (b) Nothing in Part 4, Governance, or Part 5, Fiscal Procedures for Interlocal Entities,
120 may be construed to limit the power or authority of a taxed interlocal entity.
121 (7) (a) A governmental law enacted after May 12, 2015, and on or before November
122 10, 2021, is not applicable to, is not binding upon, and does not have effect on a taxed
123 interlocal entity that is a project entity unless the governmental law expressly states the section
124 of governmental law to be applicable to and binding upon the taxed interlocal entity with the
125 following words: "[Applicable section or subsection number] constitutes an exception to
126 Subsection 11-13-603(7)(a) and is applicable to and binding upon a taxed interlocal entity."
127 (b) A governmental law enacted after May 12, 2015, is not applicable to, is not binding
128 upon, and does not have effect on a taxed interlocal entity that is an energy services interlocal
129 entity unless the governmental law expressly states the section of governmental law to be
130 applicable to and binding upon the energy services interlocal entity with the following words:
131 "[Applicable section or subsection number] constitutes an exception to Subsection
132 11-13-603(7)(a) and is applicable to and binding upon an energy services interlocal entity."
133 (c) Sections 11-13-601 through 11-13-608 constitute an exception to Subsections (7)(a)
134 and (7)(b) and are applicable to and binding upon a taxed interlocal entity.
135 (8) (a) Notwithstanding any other provision of law, a taxed interlocal entity that is a
136 project entity is a political subdivision that:
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137 (i) pursuant to Utah Constitution, Article VI, Section 33, is subject to the authority of
138 the legislative auditor to conduct audits of any funds, functions, and accounts in any political
139 subdivision of this state; and
140 (ii) is subject to the requirement to provide the Office of the Legislative Auditor
141 General with all records, documents, and reports necessary of the legislative auditor general or
142 the office to fulfill the duties described in Subsection (8)(a)(i).
143 (b) Subsection (8)(a) takes precedence over Section 36-12-15.
144 Section 3. Section 52-4-103 is amended to read:
145 52-4-103. Definitions.
146 As used in this chapter:
147 (1) "Anchor location" means the physical location from which:
148 (a) an electronic meeting originates; or
149 (b) the participants are connected.
150 (2) "Capitol hill complex" means the grounds and buildings within the area bounded by
151 300 North Street, Columbus Street, 500 North Street, and East Capitol Boulevard in Salt Lake
152 City.
153 (3) (a) "Convening" means the calling together of a public body by a person authorized
154 to do so for the express purpose of discussing or acting upon a subject over which that public
155 body has jurisdiction or advisory power.
156 (b) "Convening" does not include the initiation of a routine conversation between
157 members of a board of trustees of a large public transit district if the members involved in the
158 conversation do not, during the conversation, take a tentative or final vote on the matter that is
159 the subject of the conversation.
160 (4) "Electronic meeting" means a public meeting convened or conducted by means of a
161 conference using electronic communications.
162 (5) "Electronic message" means a communication transmitted electronically, including:
163 (a) electronic mail;
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164 (b) instant messaging;
165 (c) electronic chat;
166 (d) text messaging, as that term is defined in Section 76-4-401; or
167 (e) any other method that conveys a message or facilitates communication
168 electronically.
169 (6) (a) "Meeting" means the convening of a public body or a specified body, with a
170 quorum present, including a workshop or an executive session, whether in person or by means
171 of electronic communications, for the purpose of discussing, receiving comments from the
172 public about, or acting upon a matter over which the public body or specific body has
173 jurisdiction or advisory power.
174 (b) "Meeting" does not mean:
175 (i) a chance gathering or social gathering;
176 (ii) a convening of the State Tax Commission to consider a confidential tax matter in
177 accordance with Section 59-1-405; or
178 (iii) a convening of a three-member board of trustees of a large public transit district as
179 defined in Section 17B-2a-802 if:
180 (A) the board members do not, during the conversation, take a tentative or final vote on
181 the matter that is the subject of the conversation; or
182 (B) the conversation pertains only to day-to-day management and operation of the
183 public transit district.
184 (c) "Meeting" does not mean the convening of a public body that has both legislative
185 and executive responsibilities if:
186 (i) no public funds are appropriated for expenditure during the time the public body is
187 convened; and
188 (ii) the public body is convened solely for the discussion or implementation of
189 administrative or operational matters:
190 (A) for which no formal action by the public body is required; or
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191 (B) that would not come before the public body for discussion or action.
192 (7) "Monitor" means to hear or observe, live, by audio or video equipment, all of the
193 public statements of each member of the public body who is participating in a meeting.
194 (8) "Participate" means the ability to communicate with all of the members of a public
195 body, either verbally or electronically, so that each member of the public body can hear or
196 observe the communication.
197 (9) (a) "Public body" means:
198 (i) any administrative, advisory, executive, or legislative body of the state or its
199 political subdivisions that:
200 (A) is created by the Utah Constitution, statute, rule, ordinance, or resolution;
201 (B) consists of two or more persons;
202 (C) expends, disburses, or is supported in whole or in part by tax revenue; and
203 (D) is vested with the authority to make decisions regarding the public's business; or
204 (ii) any administrative, advisory, executive, or policymaking body of an association, as
205 that term is defined in Section 53G-7-1101, that:
206 (A) consists of two or more persons;
207 (B) expends, disburses, or is supported in whole or in part by dues paid by a public
208 school or whose employees participate in a benefit or program described in Title 49, Utah State
209 Retirement and Insurance Benefit Act; and
210 (C) is vested with authority to make decisions regarding the participation of a public
211 school or student in an interscholastic activity, as that term is defined in Section 53G-7-1101.
212 (b) "Public body" includes:
213 (i) an interlocal entity or joint or cooperative undertaking, as those terms are defined in
214 Section 11-13-103;
215 (ii) a governmental nonprofit corporation as that term is defined in Section 11-13a-102;
216 [and]
217 (iii) the Utah Independent Redistricting Commission[.]; and
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218 (iv) a project entity, as that term is defined in Section 11-13-103.
219 (c) "Public body" does not include:
220 (i) a political party, a political group, or a political caucus;
221 (ii) a conference committee, a rules committee, or a sifting committee of the
222 Legislature;
223 (iii) a school community council or charter trust land council, as that term is defined in
224 Section 53G-7-1203;
225 (iv) a taxed interlocal entity, as that term is defined in Section 11-13-602, if the taxed
226 interlocal entity is not a project entity; or
227 (v) the following Legislative Management subcommittees, which are established in
228 Section 36-12-8, when meeting for the purpose of selecting or evaluating a candidate to
229 recommend for employment, except that the meeting in which a subcommittee votes to
230 recommend that a candidate be employed shall be subject to the provisions of this act:
231 (A) the Research and General Counsel Subcommittee;
232 (B) the Budget Subcommittee; and
233 (C) the Audit Subcommittee.
234 (10) "Public statement" means a statement made in the ordinary course of business of
235 the public body with the intent that all other members of the public body receive it.
236 (11) (a) "Quorum" means a simple majority of the membership of a public body, unless
237 otherwise defined by applicable law.
238 (b) "Quorum" does not include a meeting of two elected officials by themselves when
239 no action, either formal or informal, is taken.
240 (12) "Recordin