76-8-402. Misusing public money or public property.
| (1) |
As used in this section, “authorized personal use” means:
Attorney's NoteUnder the Utah Code, punishments for crimes depend on the classification. In the case of this section:
| Class | Prison | Fine |
|---|
| felony of the second degree | 1 to 15 years | up to $10,000 | | felony of the third degree | up to 5 years | up to $5,000 | | class A misdemeanor | up to 364 days | up to $2,500 | | class B misdemeanor | up to 6 months | up to $1,000 | | class C misdemeanor | up to 90 days | up to $750 |
For details, see Utah Code § 76-3-203 and Utah Code § 76-3-204
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Terms Used In Utah Code 76-8-402- Conduct: means an act or omission. See Utah Code 76-1-101.5
- Person: means an individual, public or private corporation, government, partnership, or unincorporated association. See Utah Code 76-1-101.5
- Possess: means to have physical possession of or to exercise dominion or control over tangible property. See Utah Code 76-1-101.5
- Property: includes both real and personal property. See Utah Code 68-3-12.5
- Public entity: means :Utah Code 76-1-101.5
- Public officer: means :Utah Code 76-1-101.5
- Public property: includes real or personal property that is owned, held, or managed by a public entity after the real or personal property is transferred by the public entity to an independent contractor of the public entity. See Utah Code 76-8-101
- Public servant: means :Utah Code 76-1-101.5
- written: includes any handwriting, typewriting, printing, electronic storage or transmission, or any other method of recording information or fixing information in a form capable of being preserved. See Utah Code 76-1-101.5
| (a) |
the use of public property, for a personal matter, by a public servant if:
| (i) |
the public servant is authorized to use or possess the public property to fulfill the public servant’s duties as a public servant; |
| (ii) |
the primary purpose of the public servant using or possessing the public property is to fulfill the public servant’s duties as a public servant; |
| (iii) |
at the time the public servant uses the public property for a personal matter, a written policy of the public servant’s public entity is in effect that authorizes the public servant to use or possess the public property for personal use in addition to the primary purpose of fulfilling the public servant’s duties as a public servant; and |
| (iv) |
the public servant uses and possesses the public property in a lawful manner and in accordance with the policy described in Subsection (1)(a)(iii); or |
|
| (b) |
incidental or de minimus use of public property for a personal matter by a public servant, if:
| (i) |
the value provided to the public servant’s public entity by the public servant’s use or possession of the public property for a public purpose substantially outweighs the personal benefit received by the employee from the incidental use of the public property for a personal matter; and |
| (ii) |
the incidental or de minimus use of the public property for a personal matter is not prohibited by law or by the public servant’s public entity. |
|
|
| (2) |
It is unlawful for a public servant to knowingly:
| (a) |
appropriate public money to the public servant’s own use or benefit or to the use or benefit of another without authority of law; |
| (b) |
loan or transfer public money without authority of law; |
| (c) |
fail to keep public money in the public servant’s possession until disbursed by authority of law; |
| (d) |
deposit public money in a bank or with another person in violation of the written policy of the public servant’s public entity or the requirements of law; |
| (e) |
keep a false account or make a false entry or erasure in an account of, or relating to, public money; |
| (f) |
fraudulently alter, falsify, conceal, or destroy an account described in Subsection (2)(e); |
| (g) |
refuse or omit to pay over, on demand, any public money in the public servant’s custody or control, upon the presentation of a draft, order, or warrant drawn upon the public money by competent authority; |
| (h) |
omit to transfer public money when the transfer is required by law; |
| (i) |
omit or refuse to pay over, to any officer or person authorized by law to receive public money, public money received by the public servant under any duty imposed on the public servant by law; |
| (j) |
damage or dispose of public property in violation of the written policy of the public servant’s public entity or the requirements of law; |
| (k) |
obtain or exercise unauthorized control of public property with the intent to deprive the owner of possession of the public property; |
| (l) |
obtain or exercise unauthorized control of public property with the intent to temporarily appropriate, possess, use, or deprive the owner of possession of the public property; |
| (m) |
appropriate public property to the public servant’s own use or benefit or to the use or benefit of another without authority of law; |
| (n) |
loan or transfer public property without authority of law; or |
| (o) |
fail to keep public property in the public servant’s possession until returned to the property owner, or disposed of or relinquished, in accordance with the written policy of the public servant’s public entity and the requirements of law. |
|
| (3) |
Except as provided in Subsection (4), a violation of Subsections (2)(a) through (i) is a felony of the third degree. |
| (4) |
A violation of Subsections (2)(a) through (i) is a felony of the second degree if:
| (a) |
the value of the public money exceeds $5,000; |
| (b) |
the amount of the false account exceeds $5,000; |
| (c) |
the amount falsely entered exceeds $5,000; |
| (d) |
the amount that is the difference between the original amount and the fraudulently altered amount exceeds $5,000; or |
| (e) |
the amount falsely erased, fraudulently concealed, destroyed, or falsified in the account exceeds $5,000. |
|
| (5) |
A violation of Subsection (2)(j) is:
| (a) |
a class B misdemeanor, if the cost to repair or replace the public property is less than $500; |
| (b) |
a class A misdemeanor, if the cost to repair or replace the public property is $500 or more, but less than $1,500; |
| (c) |
a felony of the third degree, if the cost to repair or replace the public property is $1,500 or more, but less than $5,000; or |
| (d) |
a felony of the second degree, if the cost to repair or replace the public property is $5,000 or more. |
|
| (6) |
A violation of Subsection (2)(k), (m), (n), or (o) is:
| (a) |
a class B misdemeanor, if the value of the public property is less than $500; |
| (b) |
a class A misdemeanor, if the value of the public property is $500 or more, but less than $1,500; |
| (c) |
a felony of the third degree, if the value of the public property is $1,500 or more, but less than $5,000; or |
| (d) |
a felony of the second degree, if the value of the public property is $5,000 or more. |
|
| (7) |
A violation of Subsection (2)(l) is:
| (a) |
a class C misdemeanor, if the value of the public property is less than $500; |
| (b) |
a class B misdemeanor, if the value of the public property is $500 or more, but less than $1,500; |
| (c) |
a class A misdemeanor, if the value of the public property is $1,500 or more, but less than $5,000; or |
| (d) |
a felony of the third degree, if the value of the public property is $5,000 or more. |
|
| (8) |
In addition to the penalty described in Subsections (3) through (7), a public officer who is convicted of a felony violation of Subsection (2):
| (a) |
is subject to the penalties described in Section 76-8-404; and |
| (b) |
may not disburse public funds or access public accounts. |
|
| (9) |
| (a) |
A public servant is not guilty of a violation of Subsections (2)(j) through (o) for authorized personal use of public property. |
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| (10) |
It is not a defense to a violation of Subsection (2) that:
| (a) |
subsequent to the violation, a public entity modifies or adopts a policy or law, or takes other action, to retroactively authorize, approve, or ratify the conduct that constitutes a violation; or |
| (b) |
a written policy of the public servant’s public entity permits private use of the public property if it is proven, beyond a reasonable doubt, that the public servant did not comply with the written policy. |
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Amended by Chapter 61, 2020 General Session
