In the past month, there have been several developments in the HB 224 change-of-government saga. I hope to clarify some misinformation given in last week’s opinion section on this topic.
Our nonpartisan, seven-member Grand County Council is unusual. Strange as it may be, it seems to work for us, and it has twice been upheld by popular vote in the past 14 years. However, this spring the Utah Legislature passed HB 224, which mandates that we change to one of four “approved” forms of county government and that our elections must now be partisan, with no term limits and no option to recall county officials.
From the outset, both the Grand County Council and interested citizens asked the Grand County Attorney for clarification on how the process to select a new form of government must proceed: namely, whether a citizen-initiated process (led by Lynn Jackson and four other members of the Grand County Republican party) or the county council-initiated process would take priority. This matters for one big reason: it governs who will decide the makeup of a study committee that is responsible for recommending which new form of government will eventually be given the thumbs up or down by Grand County voters.
According to the legal opinion issued by the Grand County Attorney, the county council’s initiative takes precedence, even though it began later. Although the new law does outline a way for citizens of any Utah county to initiate and guide a change-of-government process (as was the intent of the GOP citizen group), a different provision of the law applies specifically to “non-conforming” counties like ours.
For Grand County, whose current form of government is no longer permitted under the new law, HB 224 has a clear directive: “The county’s legislative body [county council] shall, before July 1, 2018, initiate the process … of changing the county’s form of government.” This is a basic principle of statutory interpretation: that the language characterizing how an already-conforming county “may” seek to change to one of the other approved forms of government takes a back seat to the “shall” language dictating what a non-conforming county must do. This mandate makes sense, because it means our elected officials are primarily responsible for assembling the all-important study committee, instead of a small group of unelected individuals.
Why then, is the official legal opinion of the Grand County Attorney being questioned? Because of recent input from State Election Director Justin Lee, who wrote a letter expressing his opinion that whichever process was initiated first would take precedence.
However, Mr. Lee’s letter was not an order to the county from the Lieutenant Governor’s office, nor was it an official opinion from a court or the Attorney General – i.e. it is not binding in any way. This was made clear by Mr. Lee himself who, when asked directly about the intent of his confusing letter, clarified that: “[w]hether there is an opinion from our office, the Attorney General’s office, or any other source, it falls to the locally elected officials to make a decision based on advice from their counsel and their reading of the law.”
Unfortunately, there has been significant mischaracterization of Mr. Lee’s letter since it was released to the public, including a guest column in last week’s newspaper, which attempted to paint the letter as both a legal opinion from the Attorney General’s office and as an order from the Lieutenant Governor to the county.
This attempt to present Mr. Lee’s letter as a directive for Grand County to follow in place of our own County Attorney’s actual legal opinion on the matter is incorrect. The State Attorney General and Lieutenant Governor’s office know exactly how to order a county to do something, and, by Mr. Lee’s own words, that is not what happened here.
Although many (myself included) think a state-mandated change of our existing, nonpartisan county form of government is obnoxious, we must follow the law now that it is in place. This means heeding the well-researched advice of our county attorney, who serves as our representative and interpreter in all legal matters, and continuing the process initiated by our Grand County Council.
The passage of HB 224 rewrote the rulebook for all of us – isn’t it ironic that those who championed this new law are now reluctant to play by the rules which they themselves made up?
Kya Marienfeld is an attorney living in Moab.