Graves v. Utah County Government

2024 UT App 80

THE UTAH COURT OF APPEALS

GREG GRAVES,
Appellant,
v.
UTAH COUNTY GOVERNMENT, NATHAN IVIE, CAMMIE TAYLOR, AND
WILLIAM LEE,
Appellees.

Amended Opinion*
No. 20200296-CA
Filed May 23, 2024

Fourth District Court, American Fork Department
The Honorable Robert C. Lunnen
No. 190100114

Ryan J. Schriever, Attorney for Appellant
Andrew M. Morse and Andrew L. Roth, Attorneys
for Appellees

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUSTICE JILL M. POHLMAN and SENIOR JUDGE KATE
APPLEBY concurred. 1

* The Appellees filed a petition for rehearing after we published
our original opinion. The points made in the petition were well
taken, and we granted the petition. As a result, our previous
Opinion dated July 6, 2023, is withdrawn, and we issue this
Amended Opinion in its place.

1. Justice Jill M. Pohlman began her work on this case as a member
of the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3‑108(4). Senior Judge Kate Appleby sat by
special assignment as authorized by law. See generally id. R. 11-
201(7).
Graves v. Utah County

CHRISTIANSEN FORSTER, Judge:

¶1 Cammie Taylor lodged a complaint against then-county
commissioner Greg Graves, alleging that he sexually harassed
and retaliated against her while she was employed as the human
resources director for Utah County (the County). The County
hired an independent investigator, who produced an internal
report (the report) to address Taylor’s allegations. In response to
public records requests from two media outlets, the other two
county commissioners voted to disclose redacted copies of
Taylor’s complaint and the report. After the vote, the two
commissioners communicated with the press and the public
regarding the accusations and the investigation, publicly named
Graves as the subject of the report, and called on him to resign.

¶2 Graves sued the County, the two commissioners, and
Taylor, bringing causes of action for false light invasion of
privacy, defamation, slander/libel per se, intentional infliction of
emotional distress, and negligent infliction of emotional distress.
The district court granted a motion to dismiss Graves’s complaint,
and Graves appealed. We affirm.

BACKGROUND

¶3 We recite here the relevant allegations Graves made in his
civil complaint filed in the district court.

¶4 Graves served as a county commissioner for three years,
from 2015 to 2018. In October 2017, Taylor, a county employee,
filed a “Notice of Charge of Discrimination” with the Utah
Antidiscrimination and Labor Division of the Utah Labor
Commission (UALD complaint) alleging Graves had sexually
harassed and discriminated against her. Taylor also sent a notice
of claim to the County. In response, Graves asserted that “Taylor
fabricated allegations of sexual harassment against [him] for
malicious and improper purposes, including . . . retaliation,

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Graves v. Utah County

leverage to avoid termination, and/or leverage to force a
settlement with [the] County when she was terminated from her
job.”

¶5 The County hired an investigator to conduct a factual
inquiry into Taylor’s allegations of sexual harassment and gender
discrimination and prepare the report. The investigator did not
conduct a legal analysis of the merits of the harassment and
retaliation claims made in Taylor’s UALD complaint. But based
upon the report, Graves asserted that the investigator was
“unable to conclude” that Graves had “engaged in any
unwelcome sexual or suggestive behavior or conduct toward”
Taylor.

¶6 Graves’s district court complaint alleged that around this
time, Taylor contacted media reporters to inform them of the
UALD complaint. Subsequently, two media outlets made public
records requests under the Government Records Access and
Management Act (GRAMA), see generally Utah Code §§ 63G-2-101
to -901, for “the complaint against Commissioner Graves,” “[a]ll
emails sent between Utah County Commissioner Greg Graves
and Cammie Taylor, the Utah County personnel director,” and
“any complaint of sexual harassment against Utah County
Commissioner Greg Graves.” The County initially denied the
GRAMA requests because it had not yet received the UALD
complaint and “there were no documents to produce.” Once the
County received the UALD complaint, it continued to deny the
requests pending an investigation.

¶7 County commissioners Nathan Ivie and William Lee (the
Commissioners) later held a GRAMA appeal hearing regarding
the documents that had been requested related to Graves’s
alleged misconduct. The Commissioners voted to release the
requested documents but to redact personal identification
information from them. Immediately after the hearing, however,
Ivie addressed the media, announcing that the report was about

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Graves v. Utah County

Graves and that Ivie would release a prepared statement on his
official social media page. Lee reposted Ivie’s prepared statement
to his own official social media page.

¶8 The County released a partially redacted UALD complaint,
but Graves’s name was included in it. The next day, the County
released the report, in which all the names—including Graves’s—
and identifying information were redacted. Graves alleged that
the Commissioners “knew or should have known” that
publishing the UALD complaint (with his name included)
“without simultaneously releasing the [report] would portray
Graves in a false light in that people would falsely believe he was
guilty of sexual harassment.” Following the release of the UALD
complaint, the media reported extensively about the allegations
of Graves’s sexual harassment, leading to calls for his resignation.

¶9 Graves’s lawsuit against the Commissioners, Taylor, and
the County alleged that Taylor’s accusations against him were
false and that she acted with malice in asserting claims of sexual
harassment and gender discrimination. Graves also claimed that
the Commissioners “acted with malice in publishing the false
statements.” He asserted that this conduct “irreparably damaged”
his reputation, resulting in loss of employment opportunities,
marital problems, bullying of his children, and exacerbation of a
preexisting traumatic brain injury. He sought economic and non-
economic damages.

¶10 In response, the County, the Commissioners, and Taylor
filed a motion to dismiss for failure to state a claim on which relief
could be granted, see Utah R. Civ. P. 12(b)(6), arguing that
Graves’s claims were barred by the Governmental Immunity Act
of Utah (UGIA), see generally Utah Code §§ 63G-7-101 to -904; that
Graves did not and could not properly plead that the
Commissioners or Taylor acted with actual malice; and that
Graves’s infliction of emotional distress claims failed as a matter
of law.

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Graves v. Utah County

¶11 The district court orally granted the motion to dismiss. Its
subsequent written order explained that, under GRAMA and
Deseret News Publishing Co. v. Salt Lake County, 2008 UT 26, 182
P.3d 372, the Commissioners and the County were required to
disclose the report because it was not a protected record, and that,
accordingly, “as a matter of law,” Graves could not “prove they
acted with actual malice.” As to Taylor’s conduct—including
lodging the UALD complaint and allegedly surreptitiously
disclosing to the media her claims of sexual harassment and
gender discrimination—the court concluded that Graves’s claims
were barred by the UGIA because reporting and investigating
sexual harassment allegations were mandatory and both actions
were governmental functions. Moreover, the district court
concluded that Taylor’s intentional acts, including her alleged
leaking of the sexual harassment allegations to the media, were
activities for which immunity was not waived. Accordingly, the
court dismissed with prejudice Graves’s claims of false light
invasion of privacy, defamation, and slander/libel per se. The
parties stipulated to the dismissal with prejudice of the emotional
distress claims. Graves appeals the district court’s decision.

ISSUE AND STANDARD OF REVIEW

¶12 Graves asserts that the district court erred in dismissing his
claims. “A motion to dismiss should be granted only if, assuming
the truth of the allegations in the complaint . . . , it is clear that the
plaintiff is not entitled to relief.” Hudgens v. Prosper, Inc., 2010 UT
68, ¶ 14, 243 P.3d 1275 (quotation simplified). We generally
review a district court’s decision to dismiss claims under rule
12(b)(6) for correctness. Blanch v. Farrell, 2018 UT App 172, ¶ 14,
436 P.3d 285. 2

2. On appeal, Graves articulated the issues in a different fashion.
To the extent that we have not addressed those issues, “we have
(continued…)

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Graves v. Utah County

ANALYSIS

I. Claims Against the Commissioners and Taylor

¶13 The district court relied on Deseret News Publishing Co. v.
Salt Lake County, 2008 UT 26, 182 P.3d 372, in reaching its
conclusion that the Commissioners were required to release the
report. Regarding Taylor, the district court turned to Utah Code
section 63G-7-201(4) in determining that Taylor was protected by
the UGIA. We agree with the district court’s decision dismissing
Graves’s claims against the Commissioners and Taylor, but for a
different reason. See Okelberry v. West Daniels Land Ass’n, 2005 UT
App 327, ¶ 11, 120 P.3d 34 (“It is well established that we may
affirm the judgment appealed from if it is sustainable on any legal
ground or theory apparent on the record, even though such
ground or theory differs from that stated by the trial court to be
the basis of its ruling or action, and this is true even though such
ground or theory is not urged or argued on appeal by appellee,
was not raised in the lower court, and was not considered or
passed on by the lower court.” (quotation simplified)).

¶14 Governmental immunity shields the State and its
employees acting in their official capacities from suit unless the
State expressly consents to being sued. The UGIA states that “each
governmental entity and each employee of a governmental entity
are immune from suit for any injury that results from the exercise
of a governmental function.” Utah Code § 63G-7-201(1); see also
Wheeler v. McPherson, 2002 UT 16, ¶ 10, 40 P.3d 632 (“The [UGIA]
grants the state and its political subdivisions broad, background
immunity from injuries that result due to the exercise of a
governmental function.” (quotation simplified)). To determine if
an employee of a “governmental entity is immune from suit
under the [UGIA], we apply a three-part test, which assesses

determined that they are foreclosed” by the ensuing analysis. See
State v. Pullman, 2013 UT App 168, ¶ 46 n.11, 306 P.3d 827.

20200296-CA 6 2024 UT App 80
Graves v. Utah County

(1) whether the activity undertaken is a governmental function;
(2) whether governmental immunity was waived for the
particular activity; and (3) whether there is an exception to that
waiver.” Van de Grift v. State, 2013 UT 11, ¶ 8, 299 P.3d 1043
(quotation simplified).

¶15 First, the actions of the Commissioners and Taylor
were exercises of a governmental function. A governmental
function is broadly defined as “each activity, undertaking,
or operation performed by a department, agency, employee,
agent, or officer of a governmental entity.” Utah Code § 63G-7-
102(5)(b); see also id. § 63G-7-101(2) (stating that the “scope of
the waivers and retentions of immunity” found in the
UGIA “applies to all functions of government, no matter how
labeled . . . and governs all claims against governmental . . .
employees or agents arising out of the performance of the
employee’s duties, within the scope of employment, or under
color of authority”); Scott v. Universal Sales, Inc., 2015 UT 64, ¶ 58,
356 P.3d 1172 (noting that the legislature has “restricted
governmental liability . . . by expanding the [UGIA’s] definition
of ‘governmental function’” and that “the statute currently
defines that term as encompassing anything the government
decides to do”). Under this standard, all the complained-of
actions of the Commissioners and Taylor were governmental
functions.

¶16 Indeed, the Commissioners were acting in their official
capacities when they communicated publicly about Taylor’s
complaints against Graves; after all, the Commissioners held a
press conference about a governmental complaint and
investigation immediately after an official meeting and later
posted a prepared statement about the same to their official social
media accounts. Thus, these were “activit[ies] . . . performed by
. . . [an] officer of a governmental entity.” See Utah Code § 63G-7-
102(5)(b).

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Graves v. Utah County

¶17 Graves does not resist this conclusion directly; instead, he
contends that the first prong of the three-part governmental
immunity test is not met because the Commissioners’ actions
were not “essential to the core of governmental function.” But in
making this argument, Graves relies on an outdated definition of
“governmental function.” In Standiford v. Salt Lake City Corp., 605
P.2d 1230 (Utah 1980), the Utah Supreme Court adopted a
common law definition for governmental function, concluding
that to qualify for immunity, “the activity under consideration
[must be] of such a unique nature that it can only be performed
by a governmental agency or that it is essential to the core of
governmental activity.” Id. at 1236–37. But that definition was
superseded by statute decades ago, GeoMetWatch Corp. v. Utah
State Univ. Rsch. Found., 2018 UT 50, ¶ 18 n.3, 428 P.3d 1064
(explaining that the Standiford definition was statutorily changed
in 1987), and we now apply the legislature’s broad statutory
definition that “encompass[es] anything the government decides
to do,” Scott, 2015 UT 64, ¶ 58. 3 Graves does not contend that this
statutory definition is unmet.

¶18 Similarly, Graves relies on the same outdated Standiford
definition to argue that Taylor’s alleged disclosure of the report to
the media was “not a governmental function.” 4 Specifically,
Graves does not contend that Taylor’s alleged leaking of the
report to the media was not a governmental function under the

3. The Standiford definition of governmental function that Graves
relies on is relevant only in certain challenges under the open
courts clause of the Utah Constitution. See Scott v. Universal Sales,
Inc., 2015 UT 64, ¶¶ 59–60, 356 P.3d 1172. As we explain, see infra
¶¶ 24–25, Graves has not preserved a constitutional challenge.

4. Graves does not challenge the assertion that Taylor’s acts of
filing a sexual harassment complaint arising out of her
employment or participating in the internal investigation of that
complaint are governmental functions.

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Graves v. Utah County

statutory definition, nor does he suggest that her alleged contact
with the press did not arise out of the performance of her duties.
To the contrary, Graves alleged in his complaint that “at all times
relevant to the allegations in [the] Complaint,” Taylor was “an
employee of [the] County,” acting as “manager of the human
resources department” for the County. Thus, Graves is left to
contend that because allegedly releasing the report to the media
did not “materially advance the core functions of the government”
(emphasis added), the district court was wrong to conclude that
the UGIA applies. But, as shown above, Graves applies the wrong
standard. Accordingly, we conclude that the first prong of the
three-part test has been met.

¶19 Next, the UGIA is clear that a “governmental entity and an
employee of a governmental entity retain immunity from suit
unless that immunity has been expressly waived in [the UGIA].”
See Utah Code § 63G-7-101(3); see also id. § 63G-7-201(1) (“Except
as otherwise provided in [the UGIA], each governmental entity
and each employee of a governmental entity are immune from
suit for any injury that results from the exercise of a governmental
function.”); Cunningham v. Weber County, 2022 UT 8, ¶ 28, 506 P.3d
575 (“[A] governmental entity enjoys immunity from suit unless
the [UGIA] waives that immunity.”). And as applicable here, the
UGIA contains no waiver of immunity applicable to Graves’s
claims for false light invasion of privacy, defamation, and
slander/libel per se. Section 63G-7-301 of the UGIA lists the
express waivers of immunity, and Graves has not pointed to any
that apply. Instead, he argues that he “has pleaded intentional acts
and the immunity granted” in subsection 63G-7-201(4) “does not
apply.” We agree with Graves, but only in part.

¶20 Subsection 63G-7-201(4) states, as relevant here, that a
“governmental entity, its officers, and its employees are immune
from suit, and immunity is not waived, for any injury proximately
caused by a negligent act or omission of an employee committed
within the scope of employment, if the injury arises out of or in

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Graves v. Utah County

connection with, or results from . . . libel, slander, deceit . . . [or] a
misrepresentation by an employee whether or not the
misrepresentation is negligent or intentional.” Utah Code § 63G-
7-201(4)(b), (f). This provision operates in conjunction with
subsection 63G-7-301(2)(i), which states, “Immunity from suit of
each governmental entity is waived . . . subject to Subsections 63G-
7-101(4) and 63G-7-201(4), as to any injury proximately caused by
a negligent act or omission of an employee committed within the
scope of employment.” Id. § 63G-7-301(2)(i). In other words,
subsection 63G-7-301(2)(i) reflects an express waiver of immunity
for negligent acts, but that otherwise broad waiver comes with
exceptions. And one of those exceptions is found in subsection
63G-7-201(4), which excludes from the waiver injuries caused by
a negligent act of a governmental employee if that injury arose out
of the enumerated intentional acts. See id. § 63G-7-201(4).

¶21 We agree with Graves that the exception to the waiver of
immunity referenced in subsection 63G-7-201(4) does not apply.
Graves does not allege that he was injured by a negligent act, and
thus the exception to the waiver for immunity for negligence has
no application here. But it does not follow that the State has
waived its immunity for the intentional torts Graves asserts. As
explained above, the UGIA makes clear that governmental
entities and their employees are immune from suit unless
immunity is expressly waived. See supra ¶ 19. There is no express
waiver in the UGIA for the intentional torts Graves claims. The
fact that subsection 63G-7-201(4) does not apply here does not
mean that the Commissioners and Taylor are not immune from
suit. Their immunity derives from subsections 63G-7-101(3) and
63G-7-201(1). 5 See supra ¶ 19.

5. In our previously issued opinion, we concluded that subsection
63G-7-202(3)(c)(i) of the UGIA waived immunity for the
Commissioner’s and Taylor’s alleged intentional conduct.
(continued…)

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Graves v. Utah County

¶22 Accordingly, we conclude that Graves’s claims against the
Commissioners and Taylor were properly dismissed because
their actions were exercises of a governmental function that enjoy
immunity.

II. Graves’s Constitutional Claims

¶23 Graves’s briefing focuses on his claims against the
Commissioners and Taylor and does not separately address
whether the County is immune from his claims. But he argues
generally that none of the Appellees (including the County) are
immune from suit for an additional reason to the one discussed
above. Graves argues that this court should “consider whether
immunity [for intentional acts] existed or was granted in the first
place,” asserting that “[w]ithout a specific grant of immunity,
there is no immunity to consider.” He points to the use of the
word “retain” in the UGIA: “A governmental entity and an
employee of a governmental entity retain immunity from suit
unless that immunity has been expressly waived in [the UGIA].”

Subsection 63G-7-202(3) provides that “an action under [the
UGIA] against a governmental entity for an injury caused by an
act or omission that occurs during the performance of an
employee’s duties, within the scope of employment . . . is a
plaintiff’s exclusive remedy” and precludes “any civil action or
proceeding based upon the same subject matter against the
employee . . . whose act or omission gave rise to the claim.” Utah
Code § 63G-7-202(3)(a), (c). The provision then lists exceptions to
this general rule, including cases where “the employee acted or
failed to act through fraud or willful misconduct.” Id. § 63G-7-
202(3)(c)(i). The Appellees asked us to reconsider our conclusion,
and, after hearing from both sides, we conclude that we
misapprehended the nature and function of this subsection of the
UGIA. Properly understood, this provision reflects an exception
to a statutory exclusive remedy, not a blanket waiver of immunity
for governmental employees for any fraud or willful misconduct.

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Graves v. Utah County

Utah Code § 63G-7-101(3). Graves argues that in passing the UGIA,
“the legislature attempted to retain something that did not exist
in the first place.”

¶24 We understand this to be a constitutional challenge, which
Graves did not preserve before the district court. “As a general
rule, claims not raised before the trial court may not be raised on
appeal. A party cannot circumvent that rule by merely
mentioning an issue without introducing supporting evidence or
relevant legal authority; such a mere mention does not preserve
that issue for appeal.” State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543
(quotation simplified). Rather, “for an issue to be sufficiently
raised, even if indirectly, it must at least be raised to a level of
consciousness such that the trial judge can consider it.” State v.
Brown, 856 P.2d 358, 361 (Utah Ct. App. 1993) (quotation
simplified). Graves did not do that here. He did not argue to the
district court that the UGIA somehow abrogated a remedy against
the Appellees that was once available. Indeed, his arguments
before the district court were limited to whether the
Commissioners and Taylor committed personal acts essential to
core governmental functions and whether subsection 63G-7-
201(4) applied. Although Graves mentioned in passing that an
expansive understanding of governmental function that included
intentional torts could violate the open courts clause, see Scott v.
Universal Sales, Inc., 2015 UT 64, ¶¶ 57–59, 356 P.3d 1172 (noting
that an expanded definition of “governmental function” could
violate the open courts clause of Article I, Section 11 of the Utah
Constitution (quotation simplified)), he did not raise a specific
constitutional challenge to the immunity of governmental entities
to a degree that the district court had an opportunity to consider
it.

¶25 Moreover, Graves did not notify the Utah Attorney
General of his constitutional challenge to the UGIA, as he was
required to do. See Utah Code § 78B-6-403(3) (“If a statute . . . is
alleged to be invalid, the attorney general shall be served with a

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Graves v. Utah County

copy of the proceeding and be entitled to be heard.”); see also Utah
R. Civ. P. 24(d)(1) (“If a party challenges the constitutionality of a
statute in an action in which the Attorney General has not
appeared, the party raising the question of constitutionality shall
notify the Attorney General of such fact by serving the notice on
the Attorney General by email or, if circumstances prevent service
by email, by mail . . . . The party shall then file proof of service
with the court.”); Utah R. App. P. 25A(a)(1) (“When a party
challenges the constitutionality of a statute in an appeal or
petition for review in which the Attorney General has not
appeared, every party must serve its principal brief and any
subsequent brief on the Attorney General on or before the date the
brief is filed.”). Accordingly, we decline to further address this
issue.

CONCLUSION

¶26 Graves’s claims against the Commissioners and Taylor
were properly dismissed because they involved the exercise of a
governmental function that enjoys immunity. Graves’s
constitutional challenge to the applicability of the UGIA relative
to all the Appellees fails because it was unpreserved and because
Graves did not give proper notice to the Attorney General.
Affirmed.

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