Two different processes have been initiated to change Grand County’s form of government, prompting the Utah Lieutenant Governor’s Office to send a letter to county officials advising them to follow through with state law on just one process.
The form of government is being changed after Utah Governor Gary Herbert signed House Bill 224 into law earlier this year. Grand County’s seven-member, nonpartisan council with term limits is not a form of government that is recognized by existing state law. House Bill 224 directs local governments to come into compliance with state law.
But just how that change of government happens is being disputed.
Formally, members of the Grand County Republican Party sponsored and filed a citizen petition to take charge of changing the form of government as outlined in House Bill 224; any sponsors who filed their petition first are to lead the way on the county form of government change, according to the language of House Bill 224. The citizen petition initiative has placed the issue on the ballot for voters to decide in November: Proposition 9.
A “yes” vote for Prop. 9 would mean the citizen-petition sponsors would then move forward with creating an appointment council and a study committee that would make a later suggestion as to what Grand County’s new form of government should be. A “no” vote would not create a study committee, and instead the county government would default to a three-person commission that would perform as the county’s form of government.
The Grand County Council has acknowledged the citizen petition filed by the members of the Grand County Republican Party and has issued a statement of support for voting “yes” on Prop. 9.
But at the same time, the county council passed its own resolution on House Bill 224. This created a second process for trying to change the county form of government, and through this council-initiated process the Grand County Democratic Party said it gathered signatures to file a citizen petition on Monday, Sept. 17. Grand County Clerk/Auditor Dianna Carroll was out of the office for the week of Sept. 24-28 and was unavailable to answer questions about the petition that was submitted.
“At the end of the day, it’s going to be about who chooses to get this new form of government,” Lynn Jackson said.
Jackson is the vice chair of the Grand County Republican Party and one of the five people who filed the citizen petition that has led to Prop. 9 being placed on the ballot. Since the members of the Grand County Republican Party filed their citizen petition for changing the form of government, he does not think a county council-led resolution with a petition gathered by the Grand County Democratic Party now should supersede the process he has been following under the new state law for months.
So, he and the four other people behind the citizen petition — Gene Ciarus, Jeramy Day, Jerry McNeely and Manuel Torres — have hired the law firm of Snell and Wilmer in Salt Lake City to represent them, “because we could see the county council was going to try to interfere,” Jackson said.
Jackson pointed to a clause in House Bill 224 that he said members of the county council are counting on. The clause states that if a county’s form of government is out of compliance with state law, the county’s legislative body shall initiate a process to put the issue on the ballot and create a study committee, he said.
“They are hanging their hat on this word ‘shall,’” Jackson said. He said the county council-initiated process through its resolution would only apply if no one else had filed a citizen petition first; since a citizen petition has been filed and has formally placed the issue on the ballot, he said there was no reason for the county council to have become involved.
The Utah Lieutenant Governor’s Office issued a letter on Sept. 14, and though the letter did not represent an official “legal opinion,” it said that by state law, the first citizen petition that was filed needs to “be allowed to run its course.”
“The statute does not allow for a later initiated process to negate or nullify a previously validly initiated effort,” the letter states, meaning that the county council-initiated resolution and process does not take precedence over the citizen’s petition.
Jackson agrees. “We filed the petition, we superseded (council), it’s going on the ballot and there’s nothing (council) has to do,” he said.
NOT SO FAST, SAY DEMOCRATS
The Grand County Democratic Party disagrees.
“I think the county attorney’s opinion carries more weight on these issues than does the opinion of the Lieutenant Governor’s Office,” Kevin Walker wrote in an email to the Moab Sun News on Sept. 19. He’s the chairman of the Grand County Democratic Party.
Jackson maintains that the county council-initiated resolution and petition process that has been carried forth with the guidance of Grand County Attorney Andrew Fitzgerald does not supersede the citizen petition filed first, state laws or the lieutenant governor’s office. Jackson said he finds it “disquieting” that people are working on a second process for changing the form of government, despite the first initiated process already placing the issue on the ballot.
“It’s beyond their role as a county council as envisioned by statute and the general concept of democracy by petition,” Jackson said.
Grand County Council vice chair Curtis Wells, elected in 2017, said he publicly campaigned for changing the county’s form of government. Once he was elected, Wells admitted to working with the Utah State Legislature on refining the language of House Bill 224.
Wells said he did not agree with the council’s resolution and voted “no” for the county’s process, siding with the citizen’s petition that was already in process through state law.
“The citizen petition is valid and it can move forward,” Wells said. “The county resolution cannot because the citizens filed first.”
Walker said that Jackson and the citizen petitioner’s interpretation of House Bill 224 is “clearly wrong” because even though the citizens filed a petition, he said the state law has specific requirements for Grand County’s council to pass a resolution to start the process of changing the county form of government.
“There are two parts of House Bill 224 that at first glance appear to be contradictory to each other,” Walker said. “One says the county may initiate the process, the other says the county may not initiate the process if the citizen petition is filed first. There are standard principles of statutory interpretation which courts use to resolve this sort of conflict within the law.”
Despite the recent letter from the Lieutenant Governor’s Office advising county officials to follow state law by allowing the citizen petition process to “run its course,” Walker said the county attorney, after consulting with a third-party law firm, “decided that the initiative in which the county takes over the process takes precedence.”
Both Walker and Jackson said they anticipate future litigation is likely needed and that a judge will ultimately have final say in the dispute over the law’s meaning.
Lt. Governor’s Office sends letter advising officials to follow state law; Legal battle expected
“At the end of the day, it’s going to be about who chooses to get this new form of government.”
