How will Grand County’s next form of government take shape, and who will oversee the process to implement those state-mandated changes?
A 7th District Court judge is expected to weigh in on those questions as early as next week, after five local Republicans filed suit against Grand County, the county council and council chair Mary McGann.
The plaintiffs, who filed the original citizen petition to initiate a process to change the county’s form of government, are asking Judge Don Torgerson for a declaration that invalidates what they call the council’s attempt to “hijack” that process. They are also seeking a court order that declares their original petition as the operative one, and they’re requesting an injunction that would prevent the council from “further interference” with the petition.
Grand County Republican Party chair Jeramy Day said that he and other plaintiffs in the case hope the judge will clear up widespread confusion over Utah House Bill 224, which mandates a change in the county’s current council form of government by 2020.
“What we’re seeking is clarification from the judge on the law, because there are so many differences of opinion,” Day told the Moab Sun News on Tuesday, Nov. 20.
Day said he hopes the plaintiffs’ actions lead to a better and more effective form of county government. In the event that the judge sides with the defendants, he said, the original petitioners’ actions will still have led to an important dialogue in the community.
“If we lose, we at least started the conversation about the ineffectiveness of our current form of government,” he said.
For his part, Grand County Democratic Party chair Kevin Walker said it doesn’t appear to him as though the plaintiffs’ arguments have much merit.
“I’m confident that the county made the right decision, and that decision will be upheld by the courts,” Walker said.
PROCESS TO COMPLY WITH HB224 HAS BEEN LONG, CONFUSING
The nominally nonpartisan, seven-member county council has received conflicting legal advice about its role in the process since the controversy surrounding HB 224 first arose in March 2018. But it ultimately passed its own resolution to place a measure on the Nov. 6 ballot that asked voters whether a study committee should be appointed to consider and possibly recommend a change in the county’s form of government.
That measure — Proposition 9 — passed overwhelmingly this month, with the support of nearly 70 percent of voters who cast ballots in the midterm elections.
The vote kicks off a study period of up to one year for the study committee to review one of four state-mandated forms of government: a three-member commission; a five- to seven-member commission; a council with a county executive who has veto powers; or a council with an appointed county manager.
Grand County Attorney Andrew Fitzgerald said it’s his office’s position that the county council’s resolution supersedes anything that came before it.
“Our legal review is that the county resolution trumps that initial citizen petition,” he told the county council on Nov. 20. “That issue is up for litigation next week, and so let’s not debate that any further.”
The question of who initiated the study committee process is a critical one, because under the law, the plaintiffs argue that the first petitioners are in charge of that process.
Moreover, they say, those same petitioners would also supervise the process to select the study committee members, and could simply place themselves on a five-member “appointment council.” In addition to Day, that appointment council would include former county council members Lynn Jackson, Gene Ciarus and Jerry McNeely, as well as former Grand County Commissioner Manuel Torres.
However, if the county’s legislative body prevails under the law, the process to form an appointment council becomes more complicated. State lawmakers, county council members and appointment council petitioners alike would each choose one member; at that point, the first three appointment council members would choose the remaining two members.
As of this week, at least, the latter process is playing out, based on the legal advice that Fitzgerald’s office has received from the Salt Lake City firm of Parr Brown Gee & Loveless — the county’s contracted outside attorney.
On Nov. 20, the council voted 5-1 to name former Arches and Canyonlands national parks superintendent Walt Dabney as a member of the appointment council. Rory Paxman voted against the majority, and Curtis Wells abstained from voting on the matter.
Dabney joins Rex Tanner, a longtime member of the Grand Water and Sewer Service Agency’s (GWSSA’s) Board of Directors, who is a former county council member. Kya Marienfeld — an attorney with the Southern Utah Wilderness Alliance (SUWA) — will also join that appointment council, Walker said, because the appointment council petitioners selected her.
“As far as I’m concerned, things are going the way they’re supposed to be going under the law,” Walker said.
Day said that he and the other plaintiffs aren’t intent on having complete control over the study committee process.
“Our intent is to have representation in this process,” he said.
The original petitioners plan on picking a study committee that is diverse, he said. If they prevail, he said, their critics might be surprised to see who ends up on it.
“We’re not the partisan devils that we’re made out to be,” Day said.
Walker, though, said the plaintiffs brought the whole “difficult situation” on the county and its taxpayers by pushing for changes to state law in the first place.
“It was all, I think, unnecessary,” he said. “If the citizens wanted to propose changing our form of government … that was already possible.”
Over the years, he said, local Republicans have tried to do just that through ballot measures, but a majority of voters ultimately rebuffed them.
The core issue, Walker said, is that Republicans have been losing local elections in recent years. Grand County is not the same place it was 30 years ago, he said, and its politics continue to change.
“They should just get used to that instead of putting us through this expensive process,” he said.
COUNTY ATTORNEY SAYS COUNCIL MUST FOLLOW HIS OFFICE’S LEGAL ADVICE
Moving forward, Fitzgerald said the county council has the authority to call the appointment council to order by Friday, Nov. 30.
A key issue now revolves around two rival citizen petitions that allow for a citizen group to pick one member of the appointment council: Progressives submitted their petition to the county first, but conservatives — who lagged just a few minutes behind them — argue that it isn’t valid because the signatures on it weren’t notarized.
As is common practice, Fitzgerald said, his office sent its questions about that issue to Parr Brown Gee & Loveless for clarification.
“One of the reasons we send things out for independent legal review is so that no one can claim that there is a political slant one way or another from a firm that has no scratch in any of this,” he said.
That firm determined that the first citizens’ appointment council petition does not need to be notarized, Fitzgerald said, based on its interpretation of the law.
“The conclusion is that if (state lawmakers) wanted it notarized, they would have specifically put it in (HB 224), and because they didn’t, it falls into a category like many other laws where notarization is not required,” he said.
For that reason, it’s the county attorney’s position that the first-submitted appointment council petition is valid.
“You should give them the ability to pick a person per the code,” he said. “I don’t think the council needs to ratify that; I think it’s effect is already in law by the state legislature … so that citizen group needs to go forward.”
Unless a court says otherwise, Fitzgerald said, the county council must abide by his office’s interpretation of the law.
“There’s no debate right now; the council needs to follow the county attorney’s legal review; that review says that goes forward,” Fitzgerald said. “If council does not follow that, council proceeds very much in error and at risk.”
COUNCIL MEMBER RAISES CONCERNS ABOUT COMPETING CITIZEN PETITIONS
Wells said he thinks that Dabney is an excellent choice, adding that he believes the former National Park Service superintendent and ex-Texas State Parks system director is a “fair and rational man.” But he said he’s concerned that the council’s majority is merging the two selection processes and putting them in a place where the two groups of petitioners are competing against each other, muddying the situation.
“If it wasn’t competitive, we wouldn’t be spending taxpayer dollars to get legal review to quantify the validity of the citizen petition when there’s already a process for the appointment council to be appointed by the legislative body,” Wells said. “So the legislative body felt like it was only them that could initiate the process, based on legal review, and now we’re saying, ‘Hold on a minute, we had a citizen petition come in that wasn’t notarized; it wasn’t certified, but we’re going to go get legal review because we want that citizen petition to count.’”
Fitzgerald disputed Wells’ statement.
“I object to many of your characterizations of how this process is done, because it’s simply not accurate,” he said.
When there’s uncertainty about an issue that comes before the county, Fitzgerald said, it takes time, money and attorneys to clarify things.
“We have always sent issues out regarding this to find out what the best legal advice will be regarding the various uncertainties, and that is all my office has ever done,” he said. “So to anyone who thinks that the county attorney’s office is being political, picking one side over another — I absolutely object to that, and it is not true.”
Wells countered that he was not making any accusations, and was instead asking questions that he thinks are important to people. He then asked Fitzgerald why a phone call was placed to an unnamed citizen petitioner more than a week in advance, informing them that they had a “green light” to collect signatures.
Wells said he saw an email which stated that the county attorney’s office called McGann, who extended that information to a “certain group” of citizens. (He did not specify if that group included Marienfeld.)
“And she’s acknowledged that, so…” Wells said.
But Fitzgerald said that call that never took place.
“The citizen group, coming through a council member, had (asked) whether or not they should turn in their petition that they were seeking to file,” he said. “And that’s when we had a review from Parr Brown that said that petition that the group had could be turned in … I’ve never spoken to any citizen (about this issue), so there was a characterization that the county attorney called some citizen to give them specific legal advice — that never happened. We would never do that.”
As both sides await court ruling, Wells clashes with county attorney
“What we’re seeking is clarification from the judge on the law, because there are so many differences of opinion.”
