Utah Code § 53E-3-1310 — Utah Code / Title 53E / Chapter 53E-3 / § 53E-3-1310
§ 53E-3-1310. Commission review procedures -- Investigation -- Recommendation.
Status: in_force

(1) By no later than 10 calendar days after the day on which the complaint is accepted under Section 53E-3-1306, the commission chair shall: (a) schedule a commission meeting on a date no later than 60 calendar days after the date on which the chair accepts the complaint; (b) place the complaint on the agenda for consideration at that meeting; (c) provide notice of the date, time, and location of the meeting to: (i) the members of the commission; (ii) the first complainant named in the complaint; and (iii) the respondent; and (d) provide a copy of the complaint to each member of the commission. (2) The scope of the commission's review is limited to the alleged violations stated in the complaint. (3) (a) Before holding the meeting for review of the complaint, the commission chair may schedule a separate meeting of the commission for the purposes of: (i) hearing motions or arguments from the parties, including hearing motions or arguments relating to dismissal of a complaint, admission of evidence, or procedures; (ii) holding a vote of the commission, with or without the attendance of the parties, on procedural or commission business matters relating to a complaint; or (iii) reviewing a complaint, with or without the attendance of the parties, to determine if the complaint should be dismissed in whole or in part, by means of a majority vote of the commission, because it pleads facts or circumstances against a board member that have already been reviewed by the commission or the board as provided in Section 53E-3-1305. (b) Notwithstanding Subsection (1), the commission may, by a majority vote, change the date of the meeting for review of the complaint in order to accommodate: (i) a meeting authorized under Subsection (3)(a); or (ii) necessary scheduling requirements. (4) (a) The commission shall comply with the Utah Rules of Evidence except where the commission determines, by majority vote, that a rule is not compatible with the requirements of this part. (b) The chair shall make rulings on admissibility of evidence, subject to being overruled by a majority vote of the commission. (5) (a) All meetings and hearings authorized in this section are closed to the public. (b) The following individuals may be present during the presentation of testimony and evidence to the commission: (i) the complainants, except that no more than three complainants may be present at one time; (ii) complainants' counsel, if applicable; (iii) the respondent; (iv) the respondent's counsel, if applicable; (v) members of the commission; (vi) staff to the commission; (vii) a witness, while testifying before the commission; and (viii) necessary security personnel. (c) The complainants, respondent, and their respective counsel may be excluded from a portion of the meeting when the commission discusses administrative, procedural, legal, or evidentiary issues by: (i) the order of the chair, subject to override by a majority vote of the commission; or (ii) a majority vote of the commission. (d) When the commission deliberates at the conclusion of presentation of testimony and evidence, the commission shall ensure that those deliberations are closed to all persons except for the members of the commission and commission staff. (6) If a majority of the commission determines that a continuance is necessary to obtain further evidence and testimony, to accommodate administrative needs, or to accommodate the attendance of commission members, witnesses, or a party, the commission shall: (a) adjourn and continue the meeting at a future date and time after notice to the parties; and (b) establish that future date and time by majority vote. (7) (a) Except as provided in Subsection (7)(b), an individual may not use a camera or other recording device in any meeting authorized by this section. (b) The commission shall keep an audio or video recording of all portions of each meeting authorized by this section. (8) In addition to the recording required in Subsection (7), the chair shall ensure that a record of the meeting is made, which shall include: (a) official minutes taken during the meeting, if any; (b) copies of all documents or other items admitted into evidence by the commission; (c) copies of any documents or written orders or rulings issued by the chair or the commission; and (d) any other information that a majority of the commission or the chair directs. (9) Except for the recommendation prepared by the commission under Subsection (13), any recording, testimony, evidence, or other record of a meeting authorized by this section is a private record under Section 63G-2-302 and may not be disclosed. (10) The commission shall conduct meetings and hearings in the following order: (a) introduction and instructions for procedure and process, at the discretion of the chair; (b) complainants' opening argument, to be presented by a complainant or complainants' counsel; (c) complainants' presentation of evidence and witnesses in support of allegations in the complaint; (d) consideration of motions to dismiss the complaint or motions for a directed verdict, as applicable; (e) respondent's opening argument, to be presented by the respondent or respondent's counsel; (f) respondent's presentation of evidence and witnesses refuting allegations in the complaint; (g) presentation of rebuttal evidence and witnesses by the complainants, at the discretion of the chair; (h) presentation of rebuttal evidence and witnesses by the respondent, at the discretion of the chair; (i) complainants' closing argument, to be presented by a complainant or complainants' counsel; (j) respondent's closing argument, to be presented by the respondent or respondent's counsel; (k) deliberations by the commission; and (l) adoption of the commission's findings and recommendation. (11) The commission or an ethics committee may, in extraordinary circumstances, vary the order contained in Subsection (10) by majority vote and by providing notice to the parties. (12) (a) After each party has presented a closing argument, the commission shall, at the direction of the chair, begin its private deliberations: (i) immediately after conclusion of the closing arguments; or (ii) at a future meeting of the commission, on a date and time determined by a majority of the members of the commission. (b) The chair of the commission shall conduct the deliberations. (c) Upon a motion made by a commission member, the commission may exclude commission staff from all or a portion of the deliberations by a majority vote of the commission. (d) (i) During deliberations, for each allegation reviewed by the commission, each member shall determine and cast a vote stating whether the allegation is: (A) proven by a preponderance of the evidence; or (B) not proven. (ii) A verbal roll call vote shall be taken on each allegation and each member's vote shall be recorded. (e) (i) A count is not considered to be proven unless four of the five members of the commission vote that the count is proven. (ii) A count that is not considered to be proven is dismissed. (f) (i) Before the commission issues its recommendation under Subsection (13), the commission may, upon a majority vote, reconsider and hold a new vote on an allegation. (ii) A motion to reconsider a vote may only be made by a member of the commission who voted that the allegation was not proved. (13) (a) If the commission determines that no allegations in the complaint were proved, the commission shall: (i) issue and enter into the record an order that the complaint is dismissed because no allegations in the complaint were found to have been proved; (ii) classify all recordings, testimony, evidence, orders, findings, and other records directly relating to the meetings authorized by this section as private records under Section 63G-2-302; (iii) provide notice of the determination, in a manner determined by a majority vote of the commission, to: (A) the respondent; and (B) the first complainant named on the complaint; and (iv) provide notice to each person named in Subsection (13)(a)(iii) that a person who discloses the findings of the commission in violation of any provision of this part is in contempt and is subject to penalties for contempt. (b) If the commission determines that one or more of the allegations in the complaint were proved, the commission shall: (i) if one or more allegations were not found to have been proven, enter into the record an order dismissing those unproven allegations; (ii) prepare a written recommendation to the board that: (A) lists the name of each complainant; (B) lists the name of the respondent; (C) states the date of the recommendation; (D) for each allegation found to be proven, the information described in Subsection (13)(b)(iii); (E) contains any general statement that is adopted for inclusion in the recommendation by a majority of the members of the commission; (F) contains a statement referring the allegations found to have been proved to the board for review and appropriate disciplinary action; (G) states the name of each member of the commission; and (H) is signed by each commission member; (iii) prepare a written recommendation to the board for each allegation described in Subsection (13)(b)(ii)(D) that: (A) provides a reference to the code of conduct provision or criminal provision allegedly violated; (B) states the number and names of commission members voting that the allegation was proved and the number and names of commission members voting that the allegation was not proved; (C) at the option of those members voting that the allegation was proved, includes a statement by one or all of those members stating the reasons for voting that the allegation was proved, provided that the statement does not cite specific evidence, specific testimony, or specific witnesses; and (D) at the option of those members voting that the allegation was not proved, includes a statement by one or all of those members stating the reasons for voting that the allegation was not proved, provided that the statement does not cite specific evidence, specific testimony, or specific witnesses; (iv) direct staff to publicly release the recommendation, the complaint, and the response, subject to the redaction of any allegations that were dismissed by the commission; and (v) classify all other recordings, testimony, evidence, orders, findings, and other records directly relating to the meetings authorized by this section as private records under Section 63G-2-302. (14) The commission shall ensure that a copy of the recommendation is made publicly available and promptly provided to: (a) the respondent, together with notice that the respondent may amend the respondent's witness list; (b) the first complainant named on the complaint, together with notice that the complainants may amend their witness list; and (c) the board chair and board leadership. (15) The commission shall ensure that, within five business days of the date of issuance of the recommendation: (a) the complaint and the response are redacted to remove references to those allegations found not to have been proven by the commission, if one or more allegations were found not to have been proven; and (b) the following documents are made publicly available and are provided to the board chair and board leadership: (i) a cover letter referring the allegations contained in the edited complaint to the board for the board's review; (ii) a copy of the edited complaint; (iii) a copy of the edited response; and (iv) a copy of the recommendation. (16) The complainant and respondent may file with the board, within 10 days of the date of issuance of the commission's recommendation, an amended list of witnesses and evidence that they wish to have subpoenaed by the board.