S.B. 163 Municipal Prosecutor Amendments: transcript

Thank you, Mr. Chair. It's nice to be here today. Um, so this bill deals with, um, municipality's abilities to contract with, uh, contract attorneys for, um, the provision of prosecution services. And, uh, I'll share that many cities already do this. Counties do this as well. Um, usually you'll see a city do this when they don't have the type of criminal caseload that warrants a full-time employee. And so they'll contract with attorneys that oftentimes will pick up multiple contracts and various municipalities to provide these types of prosecution services. Now, there's a provision in the code that specifically allows counties to do this. Um, but the code is silent with regards to municipalities. And so I'll share that. One of the cities, um, in my senate district, Cottonwood Heights, um, had a, a defendant going through the system, uh, who was charged with the criminal criminal charge. This individual sued the city stating that the city didn't have the authority to prosecute them by way of a contract attorney, that they needed to be a, a full-time employee of the city. Um, case made its way through the system. Ultimately, it was, uh, dismissed on procedural grounds. Um, but it sort of shed some light on the fact that there is a gap in the code in terms of not having, uh, these provisions specifically authorizing the cities to do the same things that the counties are doing. And again, cities are doing this already. Um, and so the purpose of this bill is to provide that specific authorization. The language in this bill mirrors what's already in place for counties. Um, and I think it just, uh, protects our cities from exposure to liability. I do think it's good policy to continue to allow cities to contract with, uh, contract attorneys for a number of reasons. But with that, that concludes my presentation.

Thank you, Mr. Chair. I am just wondering if this would expand the authority of city attorneys.

It doesn't, no. Okay. Thank you.

Yes, I am.

Yes. Uh, I am Tom Steiner and I'm on the Millcreek City Council. Um, the city of Millcreek. Uh, just like Cottonwood Heights, uh, we currently do this, uh, by passing, uh, this, it would just chill us from liability and codify what has already been happening. Uh, I'd just like to speak in favor and, uh, ask you to do this. Many cities, uh, are currently doing this, uh, especially a lot of smaller ones, and it just allows us to run lean and mean and not have as many, uh, city employees.

Thank you, Mr. Chair. I move that we recommend favorably Senate Bill 1 63 Municipal Prosecutor Amendments.

Would you like to speak to your motion? I'll waive to the committee to the motion Discussion.

I'll waive summation is waived.

Thank you. Oops. Bear with me while I pull up some talking points. Okay. So, Senate Bill 1 63 addresses a city's ability to contract with a private, uh, with a private attorney to provide prosecuting services to the city. Now, there's already a statute in the, the provisions that address county prosecution, but, um, it doesn't exist in, in provisions involving cities. And so I'll provide a little context as to why this bill is in front of you today. So, cities invol, uh, cities and towns don't, who don't have the same volume of criminal prosecution work necessary to justify adding a prosecutor as an employee, instead obtain prosecution services from private firms via a contract. This approach is fiscally and practically efficient for all of the contracting cities, avoiding overstaffing and better addressing the needs of the city. The approach has, however, led to at least one recent lawsuit that sought certification as a class action and award of punitive damage, punitive damages based on allegations that a city contracting with private attorneys to handle that prosecution breached the plaintiff's right to be prosecuted by a public prosecutor. That case was dismissed by the third district court on the merits, but then appealed to the Utah Supreme Court. Eventually the appeal was withdrawn, but the plaintiff's lawyer warned, uh, that they still believed the merits of the allegations and may pursue them in the future. So this proposed statutory change simply authorizes cities to engage independent prosecutors just as counties can under similar provisions in, uh, the Utah Code. I think this approach is efficient and conserves public monies and therefore would be a valuable change to the current statute. I'm happy to answer any questions

Vickers? Yeah, thanks. So, Senator, I'm assuming as I read this, that means that the individual, they might deputize wouldn't be a city attorney or a city employee, could be someone just in practice that that city attorney chose to deputize or,

Yeah, that's exactly right. So some private attorneys that will take on city contracts. Um, in my district, I know that there's a, a private entity that contracts for both Cottonwood Heights as well as Millcreek. Both of those municipalities just aren't big enough or don't see the volume to justify hiring their own, and so that that individual is deputized to work on behalf of the city.

Okay. Does the council have to approve an action like that, or,

I'm not entirely sure how the process works. I would imagine, at least in terms of the hiring there is, uh, they're involved in the hiring. Um, I'm sure there's some type of formal deputization that occurs similar to how county attorneys are hired.

Yeah. So tell me if I'm wrong. The way I was reading this is like, you have one case and a case that, you know, the, the current city attorney just is tied up with other things, so they then they essentially hire a deputize uh, an individual to come in for that one case. Would it be kind of a, would that be the situation?

Would it be coming in on, on more of a full-time basis, or how does that work? My understanding, at least from the context that I have in my own area, is that there is no formal city attorney, or at least city prosecutor, they, they fully contract that out.

Okay. I know in our, in, you know, in southern Utah, a lot of small towns, you know, they'll contract with the, you know, a public attorney that mm-hmm. You know, sometimes, sometimes public attorneys will be city attorneys for multiple cities. Right. But are, are, and I guess maybe I'm, maybe I'm misunderstanding what you're trying to do. So let's say, and that's the case, you know, you've got a, a contracted attorney that's multi working in multiple different cities, you get a case that they actually aren't able to handle, so they'd have to go outside of their already contracted attorney and then then they deputize somebody else or hire somebody else. Is that what we're getting doing? Or is that something different? Am I missing the both?

No, no, these are really good questions, and it sounds like there's folks in the audience who know more than I do. Um, and yeah. So if that's okay, can um, your phone friend get some help on this question, friend? Yeah, I'm gonna phone a friend. My understanding, and I'll let, I'll let you, uh, step in, Dave, is that, uh, they're just contracting. They don't have a formal city attorney. They're, they're solely contracting these individuals to do the work of the city. Is that right? Or can you provide more context?

Thank you, Senator, uh, David Spa for representing, uh, the City of Holiday on this issue. And let me be perfectly clear, I don't know any more than Senator Pitcher does. I don't know any more than any of you know, but I will try to answer whatcha up here For, Um, with so many you walked into that Senator Ipson, uh, Senator Vickers was so many years up here. I need to remar I need to remind you guys that I'm still functional after, you know, during my, in my, in my 52nd session. So that's why I'm here. Um, what, what, what Senator Pitcher iss trying to do, and, and we appreciate this greatly, cities of Cottonwood Heights and Holiday, for example, they have city attorneys, but they don't have a city prosecutor that's full-time. Mm-hmm. And they, and they have justice courts, and the goal that they want to do is they want to keep their justice courts operating for the benefit of their constituents and those in the surrounding area. If they had to hire a full-time city prosecutor y for the ca number of cases that they have, which is not, which isn't great, they wouldn't be able to keep the Justice Court going. And so what we want to do here is just to contract out to a private attorney, uh, to become the city prosecutor, handle the justice court cases, and that's their responsibility.

Okay. Yeah. Does that answer your question? Yeah.

Would, I guess, would, would it be more on like a, a permanent con retainer basis then, or

It's, you know, I don't know that I could be One onesie off, you know, just one case per Well, it could be, it could be be one day, it could be one or two days a week, and it could be five or six cases a day. You know, your traffic violations, you're infractions. Okay. You know, the cases that, the cases that aren't big enough for, for district court.

Okay. I think I get it. Now. My minimum, my minimum legal mind is Grasping this now, But it's, it's still better than mine, Senator.

But the goal here is, for example, Salt Lake County has eliminated their Justice courts. Millcreek has eliminated theirs because the, the, the caseload just isn't there. And so the goal is, is to not, if Justice courts are all eliminated, all these cases go to the district court, and I don't think you guys wanna pay for that. And so the goal is, is to make sure that these justice courts are still operating, um, in a break even mode for the city. And that's why they need to have the, the, the prosecutor be a, uh, a, a a part-time on contract attorney to do the prosecution.

Thank you, Mr. Chair. And if I could add one last point of clarification, this wouldn't be creating a new process. These cities are already contracting with attorneys to provide these services. What we are doing is ensuring that, uh, that clarity exists in the code.

Okay. Alright. I get it. All right.

Hi. Thank you chair. Um, I actually just have some questions that have come to my mind. My name's Kristy Henshaw. I am from Utah County. And just a couple of things that have come up as I'm looking at this. This seems to be following the framework of public-private partnerships. And, and maybe you guys can address that if I'm incorrect, but I just wanted to bring some of the concerns that popped into my mind. Protections, if there's any conflicts of interest, government responsibility, um, as a, uh, acting as a private employee, but they're not. What if they violate rights or processes? Who is to, where do you go for recourse? Is this government action? And there's usually training that's done. Um, and so merging those two, uh, fields, both public and private, it brings up the same concerns that those do. Uh, so I don't have those answers. Those are just some of the concerns that popped into my mind. Um, I hope that's already been discussed and thought through. So some things for consideration. Thank you. Well,

Thank you. Uh, Jared Tingy with League of Cities and Towns, and, uh, obviously we fully support this bill and thank Senator Pitcher for, uh, bringing it forward. Um, as has been said before, it's a practice that currently exists, and there's many, uh, firms that, uh, do prosecutorial work for particularly smaller cities, or those cities that have a immense amount of prosecution, uh, where it makes better sense with public dollars, uh, instead of a hiring an, uh, a full-time employee, um, to contract those cases out. So we, uh, fully support that and, um, urge the committee to pass it out. Thank you. Thank you.

Thank you, Mr. Chair. I would make a, a motion that we favorably recommend Senate Bill 1 63.

I'll waive Senator Vickers. I'll waive as well.

I know a number of municipalities are already doing this. Um, this just ensures that they are, uh, within their legal means to do so. I'm happy to answer any questions.

Thank you. I move that Senate Bill 1 63 pass.

Senator Vickers Baldy a Lewin b Bramer Bus Colmore Esia Aye. Fillmore Aye. Grover Harper Aye. Hankins Aye. Ipson Johnson k Juab McKay Mikel Milner Musselman Aye. Owens pitcher Plum Rebi Sandal Stevenson Stratton Bickers Weiler Aye.