[Moab Sun News file photo]

The amendment to Utah House Bill 224 that was signed into law this spring does not just require all Utah counties to use one of four given forms of government. It also outlines the procedures that can be used to initiate a change in form of county government, both for counties out of compliance with legal forms of government – like Grand County – and for counties which are in compliance but simply want to change to another legal form of government.

The statute provides two avenues for initiating this process: a petition filed by citizens, or a resolution passed by a county legislative body. Currently, both of these processes have been initiated in Grand County. The dispute is over whether the law allows a petition to initiate the process in a county that is out of compliance with the legal forms of government, or if that avenue is open only in counties which are already operating under a legal form of government. 

The Grand County citizens’ petition to initiate a change in form of government predates the passing of the council resolution, but the council’s majority, acting on the advice of the county attorney, is standing by its resolution.

Council chair Mary McGann says that according to the legal interpretation provided by the private law firm Parr Brown Gee & Loveless – which the county attorney’s office contracted to study the question – HB 224 requires the legislative body to initiate the process in a non-complying county. 

“A petition is not mentioned in the section of the bill that is dealing with nonconforming counties,” she said. “If we were a conforming county, then you could do a petition or resolution and whichever went first would be the one that followed the process through. But you can’t demand that somebody does a petition. You can’t say, ‘By July 1, a resolution or a petition shall be filed.’”

In other words, she said, the clause requiring a county to come into compliance compels the county to take action, and citizens cannot be compelled to file a petition. 

Differing interpretations of HB 224

Former county council member Lynn Jackson is one of the leaders of the local Republican Party-affiliated petitioners who initiated the change in government process in March shortly after HB 224 was passed. He doesn’t read the law the same way. 

“I believe what that statute was getting at,” he said, “is if a county is out of compliance, in lieu of some form of petition to change it, then it would be incumbent on the county council to initiate that process. Our supposition is, we initiated the process and it’s going to be on the ballot, whether the county council took any action or not.” 

The matter is significant because whichever entity is found to have initiated the legitimate process will select one of the members of the proposed study committee which will recommend a new, complying form of government to the county. Either the county will adopt this recommended form of government, or the county will default to a three-person commission. 

Grand County Council vice chair Curtis Wells, who was involved in the crafting of the amendment to HB 224, also believes that the citizens’ petition takes precedence. He cites the circumstance which, he says, initially brought the issue of changing forms of county government to the attention of state lawmakers. 

“It was an issue in Weber County, where the county commission kind of interfered with a citizen petition to change of form of government … the whole reason the legislator decided to run a bill on the issue anyways was to protect citizen petitions further,” he said. 

The matter has been confused from the time the bill was passed. When the amendment was signed into law in March, Grand County officials were caught off-guard by the language in the bill that affects Grand County.

McGann said she had looked at the bill in one of its early drafts, and saw nothing that would substantially affect Grand County. She was surprised that the Utah Association of Counties (UAC) did not contact Grand County and make the council aware of the latest form of the bill. 

“I trusted UAC, and I’m still very disappointed in them, that they didn’t let us know,” McGann said. “I trusted them to alert us if there was anything that was going to dramatically affect our county. And they didn’t.” 

The CEO of the UAC sent a letter to Grand County Council in May, explaining that the organization’s failure to alert Grand County of the changes to this particular bill “resulted from the pressure of the workload during the session, and not from any attempt to keep Grand County unaware of what was coming.” 

Legal memo remains classified

The Grand County Council discussed the implications of the bill at a meeting on March 20, where Grand County Attorney Andrew Fitzgerald shared his initial interpretation of the law.

Fitzgerald cautioned the council against passing a resolution to start the change in government process, saying it could be null and illegal in light of the notice of intent to gather signatures supporting the initiation of a change in government that had already been filed with the county clerk’s office by a group of citizens. This notice of intent, Fitzgerald said, could be considered an initiation of the process, and had to be allowed to run its course before the council took any action. 

However, after further study of the law, the county attorney’s office officially advised the council to take action to initiate the process, with the understanding that the law requires the legislative body to do so.

The council ultimately passed a resolution to put Proposition 9 on the November ballot.

The proposition asks voters whether a study committee should be formed to recommend one of the four legal forms of government to the county. If the citizens vote “no” on Proposition 9, Grand County will default to a three-person commission form of government. 

The official advice from the county attorney is based on findings from the independent law firm Parr Brown.

According to McGann, the resulting legal opinion from Parr Brown’s study confirms that HB 224 is constitutional, and that in a noncomplying county, the legislative body is obliged to start the process to change the form of government. While the conclusions of the Parr Brown legal memo have been publicly discussed, the document itself and the specifics of the memo have been labeled classified by the county attorney. 

Jackson is outraged that the documents are not open to the public. He sent a Government Records Access and Management Act (GRAMA) request to the county attorney’s office, asking to see the Parr Brown legal memo, and was denied. 

“Isn’t this a public process?” Jackson asked. “It’s the most blatant lack of transparency I’ve ever seen from a group that typically prides themselves [on], and demands, transparency.” 

The denial cited attorney-client privilege, and said the documents were prepared in anticipation of litigation. The citizen petitioners have indeed made public their intent to litigate against the county if their process is not recognized. Jackson does not believe this to be a legitimate explanation for classification. 

“This isn’t contractual work,” he said of the possible lawsuit ahead. “There aren’t confidential, proprietary trade secrets involved here; there’s no financial risk to private companies; there’s no personal liability for anybody.”

He concluded that the reason given for the denial of his GRAMA request was “lame.” 

Christina Sloan is a local attorney at The Sloan Law Firm, and is also running for Grand County Attorney. Stephen Jay Stocks is running in opposition to Sloan, but he declined to comment on the issue. 

Sloan has emphasized the need to act decisively on HB 224. In March, she offered informal advice to the county attorney, stating her legal opinion that the language of HB 224 requires that in nonconforming counties like Grand County, the county legislative body must initiate the process to change the form of government. 

She explained that the part of HB 224 which discusses citizen petitions only applies to counties already in compliance with the four authorized forms of government. The section dealing with noncompliant counties, like Grand, she went on to say, mandates that the legislative body shall initiate the process. She further explained the significance of the single word “shall.”

“There’s literally 120 years of long standing, solid law set forth by the U.S. Supreme Court, that says you have to give effect to every single word in every single statute,” she said. “So the fact that this says the legislative body ‘shall’ – ‘shall’ means it shall; ‘shall’ means it must. ‘Shall’ means there is no other process.” 

However, the Utah Lieutenant Governor’s Office has a different interpretation of the law.

In a letter to Grand County Clerk Diana Carroll, state elections director Justin Lee said the interpretation that the council’s resolution somehow supersedes or otherwise nullifies the previous process is not expressed anywhere in the bill’s text. Moreover, he wrote, that interpretation would require one to ignore the specific language of the law’s pertinent provisions.

“Interpreting the statute to require respect for the first initiated process is a reasonable and workable interpretation,” Lee wrote.

Both sides seek broad Prop. 9 study committee

No litigation is expected to begin on this issue until Grand County voters have weighed in on Proposition 9.

If the proposition fails, there will be no study committee, the county will default to a three-person commission form of government, and which process to initiate the change in form of government prevails will be a moot point. If Prop. 9 passes, there could be a legal procedure to determine whether the citizens’ group who filed the petition, or the county council, will be allowed to select one of the members of the study committee.

Sloan says this will likely be decided by a 7th District Court judge. 

Whoever winds up having the power to appoint the study committee member in question, individuals from both perspectives on this issue have expressed a hope for a study committee that is broadly representative of the county. 

“The statute itself … tells you it has to be a representative committee,” Jackson said. “If we end up with our process prevailing, we’ll make sure that there’s representation across all political boundaries here in Grand County.” 

Sloan expressed her belief that the county council would do the same.

“I think they will work very hard to make that study committee fair and bipartisan and to eliminate the need for litigation,” she said.

Litigation not expected before Prop. 9 vote