OGDEN — As he prepares to leave office, there’s one thing that’s still on Utah Rep. Kyle Andersen‘s mind — a provision in state law that, to him, gives state officials license to lie with impunity.
“If they lie to the citizens and they know they are lying, there should be no immunity for that,” said Andersen, a Republican from North Ogden whose term in the District 7 Utah House seat is winding down.
He learned of the provision in Utah Code 63G-7-201 over the summer by happenstance, while studying another legislative issue. Broadly, the code, meant to be a guard against frivolous lawsuits, states that state government offices and employees may not be sued for negligence in a range of circumstances.
One provision, 4f, “stuck in my craw,” though, Andersen said, and he attempted, unsuccessfully, to get it changed. State offices and employees may not be sued for negligence, it reads, even if the issue stems from “a misrepresentation by an employee whether or not the misrepresentation is negligent or intentional.”
With transparency a big focus of debate as the government responds to the COVID-19 pandemic, among other things, that language needs to be tightened, Andersen thinks. To him, having the law on the books as is sends the wrong message to the public and, as he finishes his term as a House member, he hopes someone else will take up the cause. Andersen isn’t seeking reelection after just one term in the District 7 seat, which serves the northern Ogden, North Ogden and Pleasant View area.
The language “makes the government feel like it doesn’t matter what they say because of this law,” said Andersen, who discussed the issue in an interview at the Standard-Examiner offices. “At the same time, I think it creates a culture of mistrust because if the citizens know that (government officials) can’t be held accountable for not telling the truth, then they’re going to question everything that comes out of their mouths.”
He had worked with Utah Division of Risk Management officials to tweak the language and the agency proposed its own milder changes in response to Andersen. But the sides couldn’t reach common ground and his efforts ultimately fizzled. Andersen had proposed language stating that employees and agencies would be immune from legal action “unless the misrepresentation is grossly negligent or intentional.”
Reps from the agency didn’t immediately respond to Standard-Examiner queries seeking comment. But in an emailed response in August to Andersen, Brian Nelson, director of the Division of Risk Management, warned of potential costs stemming from the proposed change to deal with resulting legal claims, whether founded or not.
“In short, we are universally uncomfortable with the idea of creating vicarious liability for governmental entities if and when an employee is alleged to have made a misrepresentation,” Nelson wrote. He worried about a jump in legal costs for the state “because all public entities will be compelled to incur defense costs to address allegations that may or may not be imputed to public entity employers.”
At the same time, a rep from a Utah nonprofit group formed with the mission of holding public officials accountable, the Alliance for a Better Utah, doesn’t seem overly concerned.
“While this does seem like a ripe moment to reexamine our overall relationship with qualified immunity, this seems like a pretty minor change in terms of impact,” said Lauren Simpson, policy director for the group. “I can’t think of any instances where this sort of a change would have made a difference. And I’m not under the impression that government employees frequently misrepresent things that lead to someone getting injured.”
Andersen can’t point to an actual situation when the law, reworked as he proposed, would have potentially been triggered. But he feels strongly on the issue and says other Utah lawmakers agreed with him, though the support, combined with the inherent challenges of passing legislation during summertime special sessions, wasn’t enough to force change.
“I just think we ought to rely on our government to tell us the truth,” Andersen said. And if he can’t push change through, he went on, he wants the public to be aware “so maybe we can do something about changing it.”
Republican Ryan Wilcox and Democrat Grant Protzman are vying for the District 7 seat in voting that culminates with Election Day on Nov. 3. Andersen isn’t running again, in part, to deal with the aftermath of a scam, unrelated to his duties as lawmaker, that resulted in the loss of a sizable portion of his family’s savings.