A Professional

Law Corporation

CONFIDENTIAL MEMORANDUM

TO: Lee Killian

Managing Staff Attorney
Utah State Legislature

FROM: Paul R. Smith

DATE: February 14, 2024

SUBJECT: Concerns Raised by —Report of Investigation

BACKGROUND

, the Utah School and Institutional Trust Lands

Administration (“SITLA”), has reported concerns about potentially inappropriate conduct arising
out of a meeting held in Representative Phil Lyman’s office on January 25, 2024. According to
, Rep. Lyman accused her and SITLA of being incompetent and taking kickbacks;
he called and her (SITLA’s , who
was also present at the meeting) idiots; he used the expletive “fucking” during the meeting; he
mimicked and in a way that both women considered to be a
gendered verbal attack; and he told both women, as they abruptly left the meeting, that he wasn’t
“done with [them] yet.”

My investigation focused on two questions:

(1) Is it more likely than not that Representative Lyman’s conduct violated any
applicable federal, state, or local law?
(2) Is it more likely than not that Representative Lyman’s conduct violated any policy
of the Utah State Legislature?

In conjunction with my investigation, I interviewed three of the individuals who were

present at the January 25 meeting: (SITLA’s ,
(SITLA’s ), and ). I did not
interview the fourth and final meeting attendee: Representative Lyman. This is because after I
interviewed , , and , and in response to a question from

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Speaker Mike Schultz, I opined that it was unlikely that anything Rep. Lyman might say in an
interview would alter my answers to the questions identified above. Accordingly, Speaker
Schultz instructed me to draft my report without speaking with Rep. Lyman.

In addition to interviewing the individuals listed above, I reviewed a document that

consisted of notes created by on January 25, 2023—the same day as the meeting
in question. I also reviewed and analyzed the Utah State Legislature’s Workplace Discrimination
and Harassment Policy (HR-004), from the Legislature’s Human Resources Policy Manual.

INVESTIGATION SUMMARY

reports that, during her years at SITLA, she has had numerous
interactions with Rep. Lyman, both in small meetings (i.e., with fewer than 10 participants), and
in appearing before legislative committees that included Rep. Lyman. In a meeting that occurred
in April or May of 2022, met with Rep. Lyman to discuss a land exchange related
to the Bears Ears National Monument. reports that Rep. Lyman expressed his
dissatisfaction with the land exchange. She said that although the meeting was uncomfortable,
she did not consider any of Rep. Lyman’s conduct to be inappropriate—there was simply a
difference of opinion.

had a similar meeting with Rep. Lyman in October 2022, in which Rep.
Lyman claimed that SITLA had been “infiltrated” by an outside group. also had
various phone calls with Rep. Lyman in which he would raise his voice and accuse SITLA
employees of “taking kickbacks.”

Approximately a year ago, met with Rep. Lyman, Governor Cox,

Representative John Curtis, and Senator Mike Lee. reports that Rep. Lyman was
unpleasant and argumentative at that meeting, and he referred to the Bears Ears land swap as a
“gang rape.” After the meeting, Senator Lee said Rep. Lyman was “pretty awful—and that’s
coming from me.”

As stated above, this investigation centers around a meeting that took place on January
25, 2024. The purpose of the meeting was to discuss a fiscal note that SITLA had prepared in
response to HB 320—a bill that Rep. Lyman was sponsoring. A couple days before the meeting,
Lacey Moore, a finance officer with the Legislative Fiscal Analyst (LFA), contacted SITLA
about the agency generating a fiscal note in response to HB 320. When Rep. Lyman heard about
the numbers associated with the fiscal note, he emailed Lacey Moore and accused SITLA of
“making up” the numbers. Ms. Moore informed Rep. Lyman that the LFA could not release the
full report but offered an alternative solution: an in-person meeting to discuss the fiscal note.

On January 25, and met with Rep. Lyman and

, at Rep. Lyman’s office. The meeting began with Rep. Lyman
expressing surprise and discontent that he was meeting with and —
he thought he was going to be meeting with Lacey Moore. Rep. Lyman again asked to see the
report. When said that SITLA could not release the report, Rep. Lyman asked
whether that was because SITLA had a special privilege, one that other agencies did not enjoy.

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Rep. Lyman’s verbal abuse when it was directed at her, but she certainly did not want to subject
to that treatment. So and left Rep. Lyman’s
office. As they exited, Rep. Lyman said, “I’m not done with you yet.”

After the meeting, and returned to their offices.

reported to Lacey Moore what had happened. Because they were concerned that, in
the aftermath of the meeting, Rep. Lyman would seek to harm SITLA’s (and their) reputation
with other legislators, they decided to memorialize their recollections from the meeting. So, on
the afternoon of January 25, and independently wrote down
bulleted lists of their accounts of the meeting.

and both reported that they found Rep. Lyman’s conduct to

be inappropriate and unprofessional. reports that this was the first time he had
been in a small meeting like this with Rep. Lyman. He said that while he agreed with many of
the political positions Rep. Lyman expressed during the meeting, he found Rep. Lyman’s
conduct to be inappropriate, unprofessional, and unproductive. He was surprised by Rep.
Lyman’s conduct during the meeting. was concerned that perhaps all of Rep.
Lyman’s meetings would be like that. But, on the contrary, has not seen Rep. Lyman
act like that on any other occasion. also reported that he believed and
did their best to keep the meeting professional and on point. He never saw them
do or say anything during the meeting that he considered unprofessional.

During her interview, said that she had no wish to see any action taken
against Rep. Lyman. Indeed, she did not want an investigation to be opened—although she
understood why one needed to be conducted, and she fully cooperated in the investigatory
process. said she merely wanted to have her (and ) side of the
story to be heard—in case Rep. Lyman decided to discuss the meeting with other members of the
Legislature. That is why spoke with Speaker Schultz and delivered a copy of her
notes to Abby Osborne, the Chief of Staff for the Utah House of Representatives. Indeed, in her
email to Ms. Osborne, said her “main concern is making sure that Representative
Lyman does not portray this meeting an untruthful way” and that she was concerned that Rep.
Lyman would “present a narrative of [her]/SITLA walking out on a meeting with him for no
reason.” During her interview, expressed concern that, because she is one of the
few women , she is concerned with appearing “fragile.” Again, she is
concerned that Rep. Lyman might choose to “trash [her] reputation.”

reports that, soon after the January 25 meeting concluded, Rep. Lyman
discussed the meeting with two individuals. However, the two conversations happened over the
phone, so does not know who the individuals were. said that he and
Rep. Lyman never discussed the meeting, and that Rep. Lyman never said anything to him about
or .

As a result of Rep. Lyman’s conduct at the January 25 meeting, said she

would not attend another meeting with Rep. Lyman, unless there were men with her. She
believes that, otherwise, Rep. Lyman would just subject her to the same conduct. Likewise,
said that she would decline any invitation to meet with Rep. Lyman again—unless it

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was in conjunction with a public discussion or hearing. What’s more, after the way Rep. Lyman
treated , would endeavor not to have any of in small
meetings with Rep. Lyman. However, despite Rep. Lyman’s statement that he “wasn’t done with
[them] yet,” and both said they never felt physically threatened by
Rep. Lyman.

CONCLUSIONS

Question 1: Is it more likely than not that Representative Lyman’s conduct violated any
applicable federal, state, or local law?

Probably not. The laws applicable to this situation are Title VII of the Civil Rights Act of
1964 (“Title VII”) and the Utah Antidiscrimination Act (the “UADA”), both of which prohibit
creating a hostile work environment based on sex or gender. “To establish that a sexually hostile
work environment existed, a plaintiff must prove the following elements: (1) she is a member of
a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based
on sex; and (4) due to the harassment’s severity or pervasiveness, the harassment altered a term,
condition, or privilege of the plaintiff's employment and created an abusive working
environment.” Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007) (cleaned up); see
also Kline v. Utah Anti-Discrimination & Lab. Div., 418 F. App’x 774, 781 (10th Cir. 2011)
(same, applying the UADA).

It is my conclusion that Rep. Lyman’s conduct was unprofessional and inappropriate. It is

also my conclusion that several of the hostile-work-environment elements listed above are
satisfied here. I find that it is more likely than not that when he mimicked and
, Rep. Lyman was harassing them based on their sex/gender. and
are members of a protected group: they are both women. It is my conclusion that
neither woman welcomed Rep. Lyman’s conduct and both women were subjectively offended by
it. However, it is also my conclusion that Rep. Lyman’s conduct was not sufficiently severe in its
nature to create an abusive working environment—he was merely mimicking their words in a
mocking manner. In addition, because there is no evidence that Rep. Lyman has engaged in
harassing behavior based on a protected characteristic on any occasion other than during the
January 25 meeting (i.e., based on the individuals I interviewed, this appears to be an isolated
incident), it is my conclusion that Rep. Lyman’s behavior was not sufficiently pervasive to create
an abusive working environment. Accordingly, it is my opinion that, more likely than not, Rep.
Lyman’s conduct at the January 25 meeting did not violate Title VII or the UADA.

Question 2: Is it more likely than not that Representative Lyman’s conduct violated any policy
of the Utah State Legislature?

Probably not. The Utah State Legislature’s Workplace Discrimination and Harassment
Policy (HR-004) (the “Policy”), communicates the Legislature’s “serious commitment to
providing an environment that is free from unlawful discrimination.” It also directs individuals
employed by the Legislature to “avoid conduct that would constitute unlawful discrimination.”
The Policy defines “unlawful discrimination” as conduct that is “unlawful under federal or state
law,” based on various characteristics, including sex/gender. Importantly, the Policy only

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prohibits unlawful discrimination—i.e., discrimination prohibited by federal or state law. In other
words, the Policy is coextensive with federal and state law—it does not impose any greater
obligations, duties, or restrictions on employees of the Legislature than (for purposes of this
investigation) Title VII or the UADA. Thus, the conclusion stated in relation to Question 1
applies with equal force to Question 2: although Rep. Lyman’s conduct more likely than not
constituted unwelcome harassment on the basis of sex/gender, it was not sufficiently severe or
pervasive to constitute a violation of federal or state law—or, consequently, the Policy.

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