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Bill to remove mentally unfit elected officials gets preliminary approval in Utah Senate

SALT LAKE CITY — The Utah Senate on Wednesday gave preliminary approval to a bill that would allow some counties to remove elected officials from office if they are deemed mentally incapacitated and unfit to serve.

The bill, SB38, rose out of the controversy surrounding former Salt Lake County Recorder Gary Ott, who remained in office while he appeared to suffer mental health issues — a problem county officials struggled to address until Ott's siblings reached a resignation agreement to end his term.

It was later revealed in court testimony that Ott was diagnosed with a form of progressive dementia in 2013, a year before he ran a successful 2014 campaign to serve a six-year term. During the time of court proceedings, he had been diagnosed with stage 4 Alzheimer's, according to his siblings' attorney. Ott died just days after the court proceedings.

The bill, sponsored by Sen. Daniel Thatcher, R-West Valley City, passed its second reading on the Senate floor with no dissenting votes. It awaits a third reading in the Senate before it can be forwarded to the House. That vote could come as early as Thursday.

Senate President Wayne Niederhauser, R-Sandy, told reporters the bill "is one of the more controversial" so far this session. He said the bill sets a high bar "because we don't want this to get political." However, he added the bill would have made a difference in Ott's situation.

"Obviously, in hindsight, we know there was no question that there was really a problem," Niederhauser said, "and Gary Ott was a tremendous person. I knew him personally, and sadly we've gotten to that point. But what do you do in those situations? It's very sensitive."

Still, there's no rush to act, he said.

"It highlights we need to do something," the Senate president said. "I think these situations are rare so I don't see it as an absolute urgency. I would rather get it right."

SB38 comes after more than two years of work to draft a law to address such situations. The bill has been scaled back since an initial version was drafted by Rep. Rebecca Chavez-Houck, D-Salt Lake City, and would only apply to six counties in Utah — if they choose to adopt it.

Chavez-Houck's bill was referred for further study last year after lawmakers worried a provision in it allowing residents to petition to start the process to remove the elected official in question would create an easy political weapon to pressure or embarrass elected officials.

Thatcher said his proposal would set the "highest possible bar" to remove an elected official deemed to be mentally incapacitated. Instead of a voter petition, it would require a unanimous vote of the elected body (excluding the elected official in question) and would only be applicable to counties that have at least five elected officials on their council or commission. The law also only applies if the county adopts it as an ordinance.

A unanimous vote would then only refer the question of the elected official's removal to a judge, who would then decide whether to order a competency evaluation.

That competency evaluation would be carried out by a medical professional. If the medical professional determines the elected official lacks the mental capacity to fulfill the duties of the office, the official is given five days to resign from office. If the official does not resign after five days, a county council or commission can remove the official with a unanimous vote.

While the bill received support Wednesday, some lawmakers had questions about it.

Sen. Luz Escamilla, D-Salt Lake City, asked who would pay for the medical evaluation and other court costs of the elected official. Thatcher said if the medical professional concludes the elected official has the mental capacity to fulfill duties of the office, the judge could order the county legislative body to pay the court costs and attorneys fees of the elected official.

Sen. Evan Vickers, R-Cedar City, questioned why the law would only deal with larger counties that have five-member commissions.

Thatcher said the "negotiations were pretty intense" and there was "a lot of fear this would be misused," particularly on smaller legislative bodies with only three members instead of five.

"That is not what I wanted. It is not optimal, but … sometimes in the Legislature we have to make the deal that we can get to solve the problem that is before us," he said.

Senate Minority Leader Gene Davis, D-Salt Lake City, told reporters it's a "heavy situation" to remove someone from elected office, noting that his understanding was that Ott's office was being run well despite his health problems.

"You don't need an official necessarily to be in charge," Davis said.

Contributing: Lisa Riley Roche