Utah Tech University calls for lawsuit against it to be dismissed, citing broad government immunity

Utah Tech University is asking a judge to dismiss a lawsuit over how the school handled complaints about a toxic work culture, asserting that no matter how “unkind or unfair” employees felt they were treated, the university and its staff are largely immune from liability.

It’s a sweeping argument in the school’s high-profile case centered on a phallic gag gift left by the previous president. It’s also the first formal response from attorneys representing the university, the 21 named defendants who are administrators and staffers there and the overarching Utah System of Higher Education.

They hinge their defense on Utah’s broad provisions for governmental immunity.

The attorneys say that Utah law provides special and wide immunity for both government entities and their staff when it comes to civil cases for most tort claims, such as those for emotional distress or defamation at the center of this lawsuit. Under the Utah Governmental Immunity Act, they say, they’re shielded, so the claims against Utah Tech and the named employees should be dismissed.

“Each of these defendants enjoy immunity from suit for these causes of action,” reads a filing from the university.

Immunity is a part of statute that has long existed in Utah — one the state Legislature often bolsters, including this year. The law is among the most protective in the nation for government agencies, and it’s so all-encompassing that it’s become a common defense, said Peter Sorensen, a Salt Lake City lawyer who is not involved in the Utah Tech case but has represented people trying to hold government agencies to account.

“Our law immunizes state actors for a lot of what they do,” said Sorensen, with the Sykes McAllister Law Offices. “Probably for about 90% of what they do, they’re immune.”

The intent of immunity is to stop private individuals from being able to bury the government with frivolous lawsuits, he said. But it can also block people from recourse for harm.

Under the state’s law, as long as the agency — including public universities — can prove they were acting in “the exercise of a governmental function” when they allegedly caused certain harms, they are protected.

Utah Tech says that applies to the November complaint from three employees, who argue they were subjected to a hostile workplace and retaliation for trying to right things at the St. George school, where they say much of the alleged problems stemmed from the university’s highest ranks.

Among their allegations, they say former university President Richard “Biff” Williams in November 2023 left a gag gift for one of his administrators who had just had surgery: Two eggplants and a long zucchini, arranged like male genitalia, along with a note.

He signed that note as if it had been left by the three plaintiffs — Becky Broadbent, then the university’s top attorney; Jared Rasband, its second-in-command attorney; and Hazel Sainsbury, Utah Tech’s Title IX coordinator, who is charged with responding to complaints of sexual misconduct.

Together, they argue the signature painted them in a false light and amounted to harassment.

The university’s newly instated President Shane Smeed declined to comment on whether the three still hold their positions during a discussion with The Salt Lake Tribune’s editorial board.

The school also said it “cannot comment on legal proceedings” in response to Tribune questions about its immunity arguments. A spokesperson said the university is “focused on our future.”

An attorney representing the three employees also declined to comment, pointing to future court filings for their arguments. Their initial complaint asserted that immunity shouldn’t apply in this case and called the law unconstitutional.

If a judge allows the lawsuit to go forward, Sorensen said, it could become a battleground case in the state over how Utah government can and can’t be held liable.

Where did immunity law come from?

The premise of immunity is a carryover from old English common law, Sorensen said, based on the maxim that, translated from Latin, declared, “The king can do no wrong.” It meant both that the king wasn’t bound by the law and that residents weren’t allowed to sue the monarch.

Based on that, the U.S. has presidential immunity, protecting the nation’s leader from being held civilly or criminally liable for their actions while in office. The U.S. Constitution also enshrines protection for the government and its officers.

Most states have similar safeguards, but some go further than others.

“We don’t have the absolute right to sue our government,” Sorensen said.

When Utah’s constitution was written in 1895, it included a specific provision that required “all claims against the state” to be examined by a committee before anything could move forward in court.

The Utah Governmental Immunity Act was established in 1965. It didn’t originally include government employees; the Legislature added them in 1978 in response to a court ruling that lawmakers disagreed with.

Today, police are often the topic of conversations around immunity, Sorensen said, both because the law was expanded to include them (and, as a result, all government employees acting in their official duties) and because it’s typical to see those arguments come up after police shootings.

Officers are given what’s called qualified immunity — reserved for individual government employees — he said, while responding to dangerous situations so they don’t hesitate for fear of being sued. (It’s called sovereign immunity when it applies to the government agency.)

Sorensen said both arms of immunity law — qualified and sovereign — serve a practical purpose in keeping a government running without every decision leading to a lawsuit.

The law also protects public employees from being held personally liable for institutional mistakes.

“But in some cases like this, it can be pushed to a ridiculous results,” he said of Utah Tech’s defense.

Utah Tech’s arguments

In their lawsuit against Utah Tech and its administrators, the plaintiffs say they presented employee trainings on avoiding sexual harassment that their peers often ignored or mocked. That included a party held by administrators who allegedly passed around a fake book titled “Title IX for Dummies.”

Crude quotes were also hung on office walls, they say, capturing phrases that administrators had said during work. And the lawsuit alleges Sainsbury, who is Black, was the target of “racially charged language” in emails from one administrator, Provost and Vice President of Academic Affairs Michael Lacourse, who was put on administrative leave for three months and has since returned.

Their complaint also names several university staffers, including the person who received the president’s gag gift and later joked about it in a group text with his direct reports.

Most of the defendants are represented by the Utah attorney general’s office, which covers state agencies in lawsuits. Williams, Lacourse and another administrator, Eric Pedersen, have hired outside attorney Lowry Snow, a former state representative. Williams no longer works for the school.

Overall, the defendants — split into four groups — submitted more than 300 pages of responses to the lawsuit, all asserting they shouldn’t be sued in the case because of Utah’s immunity protections.

One filing argued: “This is fatal to all of plaintiffs’ claims.”

The defendants argue that all of the actions alleged in this case took place while in the defendants’ official capacity as government employees, and that’s why they cannot be held liable.

A government employee also has discretion in determining how best to respond to a situation, they say. That includes investigating — or choosing not to investigate — allegations of misconduct, or deciding not to review an internal discrimination complaint.

Even the president leaving the gag gift was an official employee action, the filings argue, trying to make an administrator smile after a surgery. It should all be protected, the attorneys say, because of Utah law.

Separately, they argue that even if immunity didn’t apply, the plaintiffs haven’t met the thresholds for whether the alleged actions can be considered defamation or intentional infliction of emotional distress.

With defamation, in particular, there has to be provable malice. And the attorneys for the university and the defendants say no one — not even the president — acted with the intent to do harm to the three employees. It was meant as a joke.

“In Utah, merely embarrassing statements are not enough to establish defamation,” one of the filings argues.

With an emotional distress claim, the behavior has to be outrageous enough to be considered intolerable to an average individual.

Lowry Snow, the attorney representing Williams, specifically said that jokes don’t fall under that. Williams thought the plaintiffs and other university staffers would laugh at the gift.

“The statement at issue — however juvenile or ill-conceived — was plainly intended as a joke,” Snow wrote in his filing. “Its exaggerated and farcical tone, coupled with the absurdity of anonymously sending such a message alongside a distasteful vegetable display, removes it from the realm of factual representation.”

The administrator who received the gift, too, he said, immediately knew it wasn’t actually from the three employees.

Sorensen agreed that it’s difficult to prove the jokes were malicious.

“Most of the time, especially given the facts in this case, where you have some off-color jokes and this present that was given, it’s hard,” he said. “This was a joke at the core of this.”

He once had a case where a police department spokesperson made a false statement during a news conference, accusing staff at a restaurant of poisoning an officer. Even in that case, Sorensen said, he couldn’t prove malice, so there was no defamation determination.

One possible exception

In addition to the immunity arguments, the overarching Utah System of Higher Education says it’s “not appropriate” as a party to the lawsuit.

It originally hired Williams and came up with a favorable separation agreement for him to leave. But the system and the statewide commissioner over higher education don’t have any control over the day-to-day activities at Utah Tech University, its attorneys argue.

The system also says that it hired Grand River Solutions to conduct an investigation into the misconduct, taking direct action to look into the allegations. That means, the attorneys say, that it didn’t act negligently, which is one of the few exceptions in Utah that could waive its immunity protections.

Utah Tech also participated in that investigation, so its attorneys argue the same.

The review concluded with no “sustained findings” that Williams violated any policies and that his actions did not amount to sexual harassment.

Williams left the school in January 2024, while the investigation was underway, signing an agreement that allowed him to continue receiving his full presidential salary in Utah until he took a new job leading Missouri State University that July.

The Utah System of Higher Education says it was required, under its policies, to provide such an agreement to Williams because he was eligible for it. Not doing so, they said, would’ve been a breach of contract with the former president.

Williams has since apologized, acknowledging that he was responsible for the display and that he now sees it “was not appropriate.” The governing board at his new school voted to support and retain him after the Utah allegations came to light.

Meanwhile, Broadbent, the university’s main attorney, was put on administrative leave after she filed her complaint against the president. That has persisted, with the school not allowing her to return to her post.

She says that has harmed her financially, including damaging her reputation to apply for other jobs.

Utah Tech says leave with pay is “a recognized and accepted way of dealing with workplace investigations and personnel administration.” The school also provided a copy of the letter it issued placing Broadbent on leave on Feb. 26, 2024.

But it’s not typical, particularly with Title IX complaints alleging harassment, to put complainants on leave.

Is Utah’s immunity law unconstitutional?

“Immunity certainly creates a strong difficulty in any case when you’re going up against the government,” said Sorensen.

But it’s not impossible, he said. A judge in this case will also be weighing the plaintiffs’ argument that Utah’s immunity law is unconstitutional and therefore shouldn’t apply. And there is precedent in Utah for that.

The employees suing Utah Tech University cite the Open Courts Clause of the Utah Constitution that says “all courts shall be open, and every person, for an injury done to the person in his or her person, property, or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay.”

They say the state’s immunity protections bar them from seeking accountability for their harms in court.

The Utah Supreme Court previously ruled that the Utah Governmental Immunity Act was unconstitutional in 2004, according to a review of the case in Brigham Young University’s Prelaw Review publication.

The court was weighing a case where a wife was seeking recourse in the death of her husband. The husband had been electrocuted when the irrigation pipes he was carrying touched power lines. Her attorneys had argued that Fairview city had hung the lines negligently low.

A lower court judge initially ruled that the city had immunity, and the appellate court agreed. But the Utah Supreme Court said the code violated the Open Courts Clause and denied the wife an opportunity to have her case heard.

The Legislature responded at the time by rewriting immunity law and adding caps for how much an individual could financially recover in a lawsuit against the state.

Utah’s broad protections have earned condemnation from those who say it goes too far. The Institute for Justice, a nonprofit Libertarian law firm, ranks each state based on its immunity laws. Utah earned a D+ for having what the firm considers too high of a bar for people to hold government agencies to account.

There have also been widespread arguments across the country for ending qualified immunity for police officers. And four states — Colorado, New Mexico, Montana and Nevada — have done so, according to the Institute for Justice.

Sorensen doesn’t believe Utah lawmakers would ever abandon immunity law here. But there have been efforts — none of which have succeeded yet — to add limitations.

That included a bill presented in 2019 by Republican Sen. Mike McKell and supported by the Libertas Institute, a Libertarian think tank in Utah.

“Damages caused by government need a remedy, and this bill helps better ensure that justice can be served when a government employee is at fault,” the Libertas Institute wrote in a post at the time.

‘Complicated’ precedents

In Utah, major cases arguing governmental immunity have both been granted summary judgment in favor of the agency — and been dismissed outright before a trial.

That includes a landmark case involving Gabby Petito, a 22-year-old reported missing and later found dead about a month after a 2021 interaction with Moab police.

Moab officers on Aug. 12, 2021, stopped Petito and her boyfriend, Brian Laundrie — with whom she had been traveling, documenting their trip on social media — after a witness reported a “domestic problem” between the two.

Instead of pursuing charges for domestic violence, as Utah law requires, an outside investigation of the department confirmed that officers chose to separate the couple for the night and let them go with a warning.

Weeks later, federal authorities concluded, Laundrie killed Petito at a Wyoming campground before he drove back alone to Florida, where he died by suicide.

Petito’s parents had sought $50 million in a lawsuit against Moab police.

Late last year, though, Seventh District Court Judge Don Torgerson threw out the case, saying Utah’s immunity law barred a lawsuit against the agency and its officers.

The family is hoping the Utah Supreme Court will take up the case.

“We will show that the guarantees in Utah’s Constitution codifies the understanding that no one — whether a private citizen or governmental entity — enjoys immunity from suit when negligently causing another’s death,” said the family’s attorney, Brian Stewart, at the time.

Arguments about immunity were brought up in the case of Lauren McCluskey, a track athlete killed at the University of Utah; but that was settled outside of court.

Sorensen said if the Utah Tech lawsuit is allowed to move forward, it could help set a new standard.

But the precedents make it “complicated,” he said, and like many others, it could also be dismissed.