Acor v. SLC School Dist.

This opinion is subject to revision before final
publication in the Pacific Reporter.
2011 UT 8
IN THE
SUPREME C OURT OF THE STATE OF UTAH
___________
SHELLY A COR,
Plaintiff and Appellant,
v.
SALT LAKE CITY SCHOOL DISTRICT,
Defendant and Appellee.
___________
No. 20091014
Filed January 28, 2011
___________
Third District Court, Salt Lake
The Honorable Tyrone E. Medley
No. 080900384
___________
Attorneys:
Kenneth R. Brown, Ann Marie Taliaferro, and Robert C. Keller,
Salt Lake City, for plaintiff
John E. S. Robson and Joan M. Andrews, Salt Lake City, for
defendant
___________
J USTICE LEE, opinion of the Court:
¶1 	This is an interlocutory appeal from a decision granting the
Salt Lake City School District’s motion for summary judgment on
Plaintiff-Appellant Shelly Acor’s claim for reimbursement of at-
torney fees and costs under Utah Code section 52-6-201 (the
“Reimbursement Statute”). Acor argues that she is entitled to
reimbursement of fees and costs incurred in her successful de-
fense of criminal charges of sexual abuse of a former student. Al-
though Acor was acquitted on all charges, the School District chal-
lenges her right to reimbursement based on evidence suggesting
that Acor developed an “inappropriate” relationship with the
student in question. On that basis, the district court granted the
School District’s motion for summary judgment, holding that
Acor could not have been acting “under color of authority” in cul-

A COR v. SALT LAKE C ITY SCHOOL D ISTRICT
Opinion of the Court
No. 20091014 	2
tivating an inappropriate relationship with a student and that the
charges “arose from acts outside the scope of her duties and em-
ployment.”
¶2 	We conclude that the district court misinterpreted the
Reimbursement Statute. It erred in assuming Acor’s guilt despite
her acquittal. We accordingly reverse, holding that Acor is en-
titled to reimbursement under the Reimbursement Statute.
I
¶3 	From August 1992 to December 9, 2005, Shelly Acor was a
teacher at Northwest Middle School in the Salt Lake City School
District. In December 2005, Alissa Cortez, Acor’s former student,
alleged that she and Acor had had a sexual relationship that be-
gan in 1995 when Cortez was in the seventh grade and lasted
through the middle of Cortez’s senior year of high school.
¶4 	An associate superintendent for the School District inter-
viewed Cortez on December 8, 2005. During the course of this in-
terview, Cortez alleged that in 1995, Cortez and Acor, then her se-
venth grade English teacher, began a sexual relationship. Accord-
ing to Cortez, Acor used her authority as a teacher to advocate
better grades for Cortez from other teachers, and Acor allowed
Cortez to spend time in her classroom when she ran into trouble
with other teachers or family members. Cortez also became Acor’s
student aide. During Acor’s teacher-preparation period, Cortez
alleged that they would shut Acor’s classroom door and engage in
sexual behavior.
¶5 	The superintendent also interviewed Acor. During this in-
terview, Acor admitted, without explanation, that “there was a
relationship and it was totally inappropriate.” Acor also admitted
to feeling guilty as a result of the relationship and to speaking
with ecclesiastical leaders and a therapist about the relationship.
Acor orally resigned from her employment with the School Dis-
trict at the conclusion of the interview. The next day, she submit-
ted a formal letter of resignation. Acor’s teaching license subse-
quently was revoked.
¶6 	During 	a 	subsequent 	police 	investigation, 	investigators
seized a journal from Acor’s residence. In a deposition taken for
this civil action, the prosecutor testified that Acor’s journal subs-
tantiated many of Cortez’s allegations and read like an adult’s de-

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Opinion of the Court
3 	No. 20091014
scription of a romantic relationship with another adult. The prose-
cutor testified, for example, that the journal corroborated Cortez’s
account that she spent time with Acor outside of school, at Acor’s
apartment, and in activities such as “having sleepovers and doing
all sorts of extracurricular activities.” The prosecutor recalled that
the journal contained statements to the effect that “I’m so in love
with [Cortez]. I love her. I miss her.”
¶7 	The District Attorney for Salt Lake County filed a criminal
information on June 22, 2006, alleging that Acor sexually abused
Cortez during her seventh grade year, from August 1994 to May
1995. 1 Counts I and II were alleged to have occurred at the school;
Count III was alleged to have occurred at a public park not on
school grounds.2
1 The statute of limitations had run on allegations of sexual
abuse dating from Cortez’s fourteenth birthday to the middle of
her senior year, sometime between 1999 and 2000. See U TAH C ODE
A NN. § 76-1-302 (Supp. 2010) (providing a four-year statute of li-
mitations for forcible sexual abuse claims). Prosecution for sexual
abuse of a child under fourteen years old is not subject to a statute
of limitations. See id. § 76-1-301 (“[P]rosecution for the following
offenses may be commenced at any time: . . . (14) sexual abuse of a
child . . . .”); see also id. § 76-5-404.1(1) (2008) (defining “child” for
purposes of “sexual abuse of a child” statute as “a person under
the age of 14”).
2 Count I of the information charged:
SEXUAL ABUSE OF A CHILD, a Second Degree Fe-
lony, at 1400 West Goodwin Avenue, in Salt Lake
County, State of Utah, on or about August 1, 1994
through May 31, 1995, in violation of Title 76, Chap-
ter 5, Section 404.1, Utah Code Annotated 1953, as
amended, in that the defendant, SHELLY ACOR, a
party to the offense, touched the anus, genitals, but-
tocks, or breasts of a child under the age of 14 years
at the time of the offense, with the intent to arouse
or gratify the sexual desires of any person, or to
cause substantial emotional or bodily pain to any
person.
Count II charged:

A COR v. SALT LAKE C ITY SCHOOL D ISTRICT
Opinion of the Court
No. 20091014 	4
¶8 	A jury acquitted Acor of all charges on May 10, 2007. At
trial, Acor’s journal was excluded from evidence, as were her
statements to the assistant superintendent that “there was a rela-
tionship [with Cortez] and it was totally inappropriate” and that
she had spoken with ecclesiastical authorities and a therapist. On
May 17, 2007, Acor sought reimbursement from the School Dis-
trict of her costs and fees in defending the criminal action. The
School District denied Acor’s request for reimbursement, and this
lawsuit ensued. During discovery in this lawsuit, Acor refused to
respond fully to certain requests for admission and to produce
certain documents, including her journal, which police had illegal-
ly seized.
¶9 	After discovery, both parties moved for summary judg-
ment. On November 12, 2009, the district court granted the School
District’s motion for summary judgment and denied Acor’s mo-
SEXUAL ABUSE OF A CHILD, a Second Degree Fe-
lony, at 1400 West Goodwin Avenue, in Salt Lake
County, State of Utah, on or about August 1, 1994
through May 31, 1995, in violation of Title 76, Chap-
ter 5, Section 404.1, Utah Code Annotated 1953, as
amended, in that the defendant, SHELLY ACOR, a
party to the offense, had a child under the age of 14
years at the time of the offense, take indecent liber-
ties with the defendant with the intent to arouse or
gratify the sexual desires of any person, or to cause
substantial emotional or bodily pain to any person.
Count III charged:
SEXUAL ABUSE OF A CHILD, a Second Degree Fe-
lony, at 5400 South 2700 West, in Salt Lake County,
State of Utah, on or about August 1, 1994 through
May 31, 1995, in violation of Title 76, Chapter 5, Sec-
tion 404.1, Utah Code Annotated 1953, as amended,
in that the defendant, SHELLY ACOR, a party to the
offense, 	touched 	the 	anus, 	genitals, 	buttocks, 	or
breasts of a child under the age of 14 years at the
time of the offense, with the intent to arouse or grati-
fy the sexual desires of any person, or to cause sub-
stantial emotional or bodily pain to any person.

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Opinion of the Court
5 	No. 20091014
tion for partial summary judgment. Acor filed an interlocutory
appeal to this court, which we granted. We review the district
court’s denial of Acor’s motion for partial summary judgment and
its grant of the School District’s motion for summary judgment for
correctness, according no deference to the district court’s decision.
Schurtz v. BMW of N. Am., Inc., 814 P.2d 1108, 1111–12 (Utah 1991).
II
¶10 The Reimbursement Statute sets forth the conditions for
reimbursement of public employees for attorney fees and costs
incurred in the successful defense of criminal charges:
If a state grand jury indicts, or if an information is
filed against, an officer or employee, in connection
with or arising out of any act or omission of that of-
ficer or employee during the performance of the of-
ficer or employee’s duties, within the scope of the of-
ficer or employee’s employment, or under color of
the officer or employee’s authority, and that indict-
ment or information is quashed or dismissed or re-
sults in a judgment of acquittal, unless the indict-
ment or information is quashed or dismissed upon
application or motion of the prosecuting attorney,
that officer or employee shall be entitled to recover
reasonable attorney fees and court costs necessarily
incurred in the defense of that indictment or infor-
mation from the public entity, unless the officer or
employee is found guilty of substantially the same
misconduct that formed the basis for the indictment
or information.
U TAH C ODE A NN. § 52-6-201(1) (Supp. 2010).3
¶11 This provision states a general rule subject to two excep-
tions. The general rule is that a public employee is entitled to
reimbursement when employment-related criminal charges result
in a judgment of acquittal or dismissal of the information. The ex-
ceptions arise where (1) the “indictment or information is quashed
3 Because there have been no substantive changes to the relevant
statutes that would affect this opinion, we cite to the current ver-
sions, unless otherwise indicated.

A COR v. SALT LAKE C ITY SCHOOL D ISTRICT
Opinion of the Court
No. 20091014 	6
or dismissed upon application or motion of the prosecuting attor-
ney,” or (2) the “officer or employee is found guilty of substantial-
ly the same misconduct that formed the basis for the indictment
or information.” Id. Neither exception applies in this case. Acor
was prosecuted on—and acquitted of—the charges of sexual mis-
conduct set forth in the information, and she was not found guilty
of the same misconduct.
¶12 The School District nevertheless argues that Acor should be
ineligible for reimbursement because, in its view, she actually
committed the crimes of which she was acquitted. The District
bases its view on Acor’s admission that an “inappropriate” rela-
tionship existed between Acor and Cortez. In addition, the School
District points to Acor’s resignation, her journal (excluded at tri-
al), and her refusal to provide certain documents and admissions
during discovery in this action. In light of this evidence, the
School District insists that the acts giving rise to the criminal in-
formation against Acor amounted to sexual misconduct that could
not have been committed during the performance of her duties,
within the scope of her employment, or under color of her author-
ity.
¶13 In support of this argument, the School District cites cases
from this court and from other jurisdictions holding that sexual
misconduct in the workplace falls outside the scope of employ-
ment, Birkner v. Salt Lake Cnty., 771 P.2d 1053, 1058 (Utah 1989),
and is not under color of state law, J.H. ex rel. D.H. v. W. Valley
City, 840 P.2d 115, 119–21 (Utah 1992). 4 Acor, for her part, cites an
alternative line of cases finding alleged sexual misconduct to be
within the scope of public employment when the charged actions
occurred during the time and place of employment.5
4 The School District also cited one California Supreme Court
case. John R. v. Oakland Unified Sch. Dist., 769 P.2d 948, 953–57 (Cal.
1989) (holding that school district was not vicariously liable for
junior high school teacher’s sexual assault of a student because
teacher was not acting within the scope of his employment).
5 See, e.g., Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 723–
24 (3d Cir. 1989) (holding that school band director’s sexual abuse
of student occurred during course of performance of official du-
ties where misconduct occurred on school property and during

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Opinion of the Court
7 	No. 20091014
¶14 Thus, the parties’ competing arguments analyze the em-
ployment-relatedness of Acor’s actions at different levels of gene-
rality. At a high level of generality, it seems apparent that Acor
was performing her job at the time and place of the conduct giv-
ing rise to the alleged sexual abuse, since her contacts with Cortez
took place mostly on school property, during school hours, and
while Acor was serving in her capacity as a teacher. On the other
hand, at a more specific level it could be said that Acor ceased
performing her job and exceeded its scope the moment she en-
gaged in the alleged sexual misconduct. Surely no public employ-
er hires its workers to perform criminal acts, and in that sense
sexual misconduct may appear to be beyond the scope of em-
ployment and not under color of a worker’s authority.
¶15 The Birkner case exemplifies the latter, more particularized
analysis of the job-relatedness of a worker’s conduct. In Birkner we
held that a government employer was not vicariously liable for or
required to indemnify a therapist who admitted to sexual abuse of
a patient at a county mental health clinic. In determining the
“scope of employment” for vicarious liability purposes, the Birk-
ner court identified three relevant criteria: (1) whether the em-
ployee’s conduct is “of the general kind the employee is employed
to perform”; (2) whether the conduct is “within the hours of the
employee’s work and the ordinary spatial boundaries of the em-
ployment”; and (3) whether the conduct is “motivated, at least in
part, by the purpose of serving the employer’s interest.” 771 P.2d
school activities); Bower v. Bd. of Educ., 670 A.2d 106, 116 (N.J. Su-
per. Ct. App. Div. 1996) (“[Criminally charged teacher’s] alleged
victims were his students and the alleged criminal acts occurred
during the school day upon school premises.”), aff’d, 694 A.2d 543
(N.J. 1997); cf. Becerra v. Asher, 105 F.3d 1042, 1047 (5th Cir. 1997)
(holding that there was no nexus between official duties as former
teacher and sexual assault where teacher molested student off
campus, five months after student withdrew from school); D.T. ex
rel. M.T. v. Indep. Sch. Dist. No. 16, 894 F.2d 1176, 1178–92 (10th
Cir. 1990) (holding that teacher accused of sexually abusing stu-
dent was acting outside of duties because alleged acts occurred
during summer vacation, when teacher was free from all obliga-
tions to school district, and alleged abuse took place at teacher’s
home following a non-school-affiliated fundraiser).

A COR v. SALT LAKE C ITY SCHOOL D ISTRICT
Opinion of the Court
No. 20091014 	8
at 1056–57. Applying these criteria, the Birkner court held that the
therapist’s conduct was outside the scope of his employment and
thus that his employer was not vicariously liable. Specifically, al-
though the “misconduct took place during, or in connection with,
therapy sessions,” we concluded in Birkner that “it was not the
general kind of activity a therapist is hired to perform” and that
“it served solely the private and personal interests of” the therap-
ist. Id. at 1058.
¶16 The School District urges a similar analysis in this case. It
insists that Acor’s sexual misconduct was not the kind of conduct
that she was hired to perform and that it served only her personal
interests. Thus, the School District asserts, Acor is ineligible for
reimbursement of her fees and costs on the ground that her acts
were not during the performance of her duties, within the scope
of her employment, or under color of her authority.
¶17 This argument ignores key distinctions between the vica-
rious liability standard at issue in Birkner and the reimbursement
question presented here. The vicarious liability standard is aimed
at and informed by the goal of attributing to the employer “‘those
acts which are so closely connected with what the servant is em-
ployed to do, and so fairly and reasonably incidental to it, that
they may be regarded as methods, even though quite improper
ones, of carrying out the objectives of the employment.’” Id. at
1056 (quoting P ROSSER AND KEETON ON THE LAW OF T ORTS § 70, at
502 (W. Page Keeton et al. eds., 5th ed. 1984)). The reimbursement
inquiry has a different focus. It is aimed at protecting public em-
ployees from the costs of successfully defending against criminal
charges that arise out of public employment. 6
6 See, e.g., Bower, 670 A.2d at 115 (“[A] teacher may be at risk for
allegations of improper conduct, and even criminal conduct, in a
setting in which he or she is exposed to the imagination of an im-
mature student population. . . . [B]ut for the teaching relationship,
or the teacher’s proximity to an alleged victim, the allegation
would not have been filed in the first instance.”); Monti v. Warwick
Sch. Comm., 554 A.2d 638, 641 (R.I. 1989) (Murray, J., concurring)
(noting that teachers are “particularly vulnerable to suit” because
of contact with students); see also Valerius v. City of Newark, 423
A.2d 988, 991 (N.J. 1980) (“Police officers, by the very nature of
their duties, are exposed to a substantial risk that such civil or

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Opinion of the Court
9 	No. 20091014
¶18 Because the nature of and motivation for the employee’s
acts are before the court that decides secondary tort liability, it
makes sense for the court to engage in a specific examination of
those issues in deciding the scope of employment question. Thus,
in the context of a government employer’s secondary liability for
sexual misconduct, the Birkner court considered not just the time,
place, and general nature of the employee’s acts, but also whether
the specific conduct could plausibly advance the employer’s ob-
jectives.
¶19 This 	sort 	of 	specific 	evaluation 	of 	the 	employment-
relatedness of the worker’s misconduct, however, is not compati-
ble with the Reimbursement Statute. In light of the context, struc-
ture, and language of the statute,7 we conclude that the job-
relatedness of a public employee’s conduct under the Reim-
bursement Statute must be evaluated at a high level of generality,
without regard to the actual guilt or innocence of the charged par-
ty.
¶20 First, under the statute, the right of reimbursement attaches
upon acquittal (or dismissal of the information)—except where the
employee is found guilty on substantially similar charges (or
where the dismissal is at the behest of the prosecutor). U TAH C ODE
A NN. § 52-6-201(1). Since Acor was not “found guilty” of substan-
tially similar charges in an underlying criminal proceeding, her
right to reimbursement cannot be defeated by a specific finding in
the civil reimbursement action that she was actually guilty of simi-
lar conduct (and thus outside her employment and ineligible for
reimbursement). Under the Reimbursement Statute, the specific
determination whether the employee actually committed criminal
wrongdoing is to be made in the underlying criminal action (by
conviction or acquittal). That determination is not subject to re-
consideration in a subsequent civil suit for reimbursement.
criminal actions will be initiated, regardless of their merits.” (in-
ternal quotation marks omitted)).
7 See Day v. Meek, 1999 UT 28, ¶ 16 n.6, 976 P.2d 1202 (“[W]e
cannot interpret the statute we are charged with construing with-
out looking to the overall context of the statutory structure at is-
sue.”).

A COR v. SALT LAKE C ITY SCHOOL D ISTRICT
Opinion of the Court
No. 20091014 	10
¶21 Despite the acquittal, the School District questions Acor’s
innocence on the grounds that she admitted to an “inappropriate”
relationship with Cortez and successfully excluded incriminating
evidence at the criminal trial. The Reimbursement Statute leaves
no room for a court to question the propriety of an acquittal, how-
ever—much less an employee’s worthiness for reimbursement on
the basis of an unspecified “inappropriate” relationship. The Dis-
trict’s strongly held and presumably sincere belief in Acor’s guilt
cannot defeat her right to reimbursement under the statute. As the
New Jersey Supreme Court explained under a parallel provision,
“the statute may mandate [reimbursement] in cases in which, de-
spite a favorable disposition of the criminal charges, doubts may
persist about the actual innocence of the teacher seeking reim-
bursement.” Bower v. Bd. of Educ., 694 A.2d 543, 553 (N.J. 1997).
The School District “may question the soundness of that legisla-
tive judgment but it cannot disregard the statute’s clear mandate.”
Id.
¶22 Second, the right of reimbursement attaches where the al-
leged acts or omissions were “in connection with or arising out of”
the performance of the employee’s duties, the scope of employ-
ment, or under color of authority. U TAH C ODE A NN. § 52-6-201(1)
(emphases added). That broad formulation implies a general in-
quiry into the causal relationship between the employee’s conduct
and the underlying criminal charges,8 not a specific consideration
whether the precise conduct in question advances the employer’s
interests or is the kind of activity the employee was asked to per-
form. Indeed, this more specific inquiry would eviscerate the
terms and conditions of the Reimbursement Statute, since criminal
conduct would rarely if ever be in the employer’s interest or at its
behest.
¶23 If we accepted the School District’s invitation to determine
whether Acor’s misconduct was unlawful despite her acquittal,
we would effectively be rewriting the Reimbursement Statute—
permitting a reexamination of an employee’s guilt of the underly-
ing criminal conduct under the guise of an inquiry into employ-
8 See, e.g., Workman Motor Co. v. Pac. Fin. Corp., 26 P.2d 961, 964
(Utah 1933) (“[T]he word ‘connected’ may have a broad significa-
tion; 	the 	connection 	may 	be 	slight 	or 	intimate, 	remote 	or
near . . . .”).

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Opinion of the Court
11 	No. 20091014
ment-relatedness. This we decline to do. Instead, we hold that the
employment-relatedness inquiry under the Reimbursement Sta-
tute is based on a general evaluation of the time, place, and nature
of the acts giving rise to the criminal charges. If the acts or omis-
sions giving rise to such charges occur at a time and place of au-
thorized employment, acquittal of those charges generally will
suffice to entitle the employee to reimbursement. Such right of
reimbursement may not be rebutted, moreover, by specific proof
in the civil reimbursement action that the employee was truly
guilty of the underlying charges and thus was not performing her
duties or acting within the scope of her employment.
III
¶24 Under this standard, we have no trouble finding that the
charges against Acor arose out of or were in connection with con-
duct within the scope of her employment and during the perfor-
mance of her duties. Acor’s alleged misconduct occurred mostly
on school grounds, during school hours, and in circumstances in
which Cortez was under her control. In the course of their rela-
tionship as teacher and student aide, Acor and Cortez necessarily
spent time together, often alone. It was Acor’s performance of her
responsibility of interacting with Cortez that gave rise to the crim-
inal charges against her. Thus, at a high level of generality, the
criminal allegations in the information arose out of and were in
connection with conduct within the scope of Acor’s employment
and during the performance of her duties as a school teacher.
¶25 It is no answer to note, as the School District does, that
Acor’s duties did not extend to her alleged involvement in an in-
appropriate relationship with a student. Acor was acquitted of
charges arising out of that alleged relationship, and the Reim-
bursement Statute leaves no room for us to second-guess the ac-
quittal.
¶26 The criminal charges against Acor also arose out of alleged
acts committed under color of her authority as a school teacher.
Acor was accused of abusing her authority as a school teacher,
turning her responsibility of interacting with Cortez as a student
and aide into an opportunity to sexually abuse her. Indeed, Cortez
allegedly derived benefits from Acor’s authority—better grades
from other teachers and a place to skip class, among other things.
In this sense, there is little doubt that the criminal charges against

A COR v. SALT LAKE C ITY SCHOOL D ISTRICT
Opinion of the Court
No. 20091014 	12
Acor directly arose out of acts alleged to have been committed
under color of her authority as a teacher. See Hackett v. Fulton Cn-
ty. Sch. Dist., 238 F. Supp. 2d 1330, 1356 (N.D. Ga. 2002) (holding
that a school teacher acts under color of state law when assault or
abuse of student occurs when student is under teacher’s authori-
ty).
¶27 The School District contends that Acor’s alleged conduct
could not have been under color of her authority under our analy-
sis in J.H. ex rel. D.H. v. West Valley City, 840 P.2d 115 (Utah 1992).
In J.H., we held that a police officer who sexually abused a youth
in a patrol car (under the guise of teaching standard relaxation
techniques) was not acting as a policymaker for or according to
custom of West Valley City and thus was not acting “‘under color
of any statute, ordinance, regulation, custom or usage’” of Utah
law. Id. at 119 (quoting 42 U.S.C. § 1983). Similarly here, the
School District argues, the district court properly held that Acor
could not have been acting under “color of authority” of the Dis-
trict because it had a policy prohibiting sexual relationships be-
tween students and teachers.
¶28 J.H. does not support the School District’s position. The
“color of authority” provision in the Reimbursement Statute is
significantly broader and more encompassing than the counter-
part provision in the statute (section 1983) at issue in J.H. Presum-
ably, there is never a government policy, regulation, or custom
calling for public employees to engage in criminal behavior. But
that is not the standard under the Reimbursement Statute; it re-
quires only action under color of authority. Acor’s interactions
with Cortez were under color of her authority as a teacher, for
reasons noted above. Acor obviously lacked authority to engage
in sexual abuse of a student. But she was acquitted of doing so,
and the Reimbursement Statute again leaves no room for us to
question the propriety of her acquittal.
IV
¶29 For these reasons, Acor is entitled to reimbursement for at-
torney fees and costs under the Reimbursement Statute. We re-
verse and remand for a determination of the amount of Acor’s
reasonable fees and costs.

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___________
¶30 Chief Justice Durham, Associate Chief Justice Durrant, Jus-
tice Parrish, and Justice Nehring concur in Justice Lee’s opinion.