Bill would amend reimbursement of legal fees to public employees when charged with crimes

SALT LAKE CITY — A bill before the Utah Senate would establish new limits about when public employees and officers could be reimbursed for attorney fees when charged criminally for alleged offenses that occurred during the performance of their professional duties.

Under SB164, a public employee would not be entitled to recover attorney fees and court costs if in a court or administrative hearing to terminate the employee, his or her employer proves the employee engaged in conduct that formed the basis of a criminal indictment or criminal information.

The bill, sponsored by Sen. Ben McAdams, D-Salt Lake, comes on the heels of a recent Utah Supreme Court ruling that a former Northwest Middle School teacher acquitted of sexual abuse of a student in 2007 was entitled to reimbursement of her attorney's fees through her former employer, the Salt Lake City School District.

McAdams said the case brought to light unintended consequences of the existing statute. The teacher, Shelly Acor, who resigned from the school district and whose state teaching license was revoked, was found not guilty at trial. However, the district court excluded from evidence the teacher's journal as well as her statement to school district administrators that "there was a relationship (with the student) and it was totally inappropriate."

The journal was excluded because it was illegally seized by police. Her statement to school district officials was excluded on the grounds of unfair prejudice.

Such evidence could theoretically be considered in a school-district level termination hearing because those proceedings have lower evidentiary standards than criminal trials.

Following Acor's trial, she sought reimbursement of her attorney fees and costs from the school district. The school district declined to pay, which resulted in a civil lawsuit. The school district argued that the alleged sexual misconduct in the workplace fell outside the scope of employment. According to testimony at the criminal trial, the alleged misconduct began when the student was in seventh grade and continued through her senior year of high school.

Third District Judge Tyrone Medley ruled that Acor could not have been acting "under color of authority" in cultivating an inappropriate relationship with a student and that the charges "arose from acts outside the scope of her duties and employment."

However, the Utah Supreme Court found that the charges against Acor "arose out of or were in connection with conduct within the scope of her employment and during the performance of her duties," Justice Tom Lee wrote for the court.