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    Ethics complaint shows flaws, no wrongdoing

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    Doug McMurdo
    Doug McMurdo
    Editor Doug McMurdo reports on news out of the Moab City Center, tourism, courts, change of government and more.
    Grand County Council Vice Chair Jaylyn Hawks and her colleagues were not found to have conflicts of interest in a controversial vote to remove overnight lodging development as a use by right. File photo

    Did members of the Grand County Council and other elected officials have conflicts of interest or violate other rules following a controversial vote last summer that banned new overnight lodging development as a protected use?

    According to Summit County Attorney Margaret Olson, the answer is a mixture of yes and, mostly, no.

    Lynn Jackson, a former Grand County Council member, filed a lengthy complaint Oct. 1 alleging that members of the council, Grand County Attorney Christina Sloan and the “county itself” were guilty of up to 14 violations of state and county codes “relative to activities associated with Grand County’s ban and zoning changes on the overnight lodging industry.”

    Jackson, despite his complaint bringing to light, at the least, the need for Grand County to do some housekeeping, is not pleased with Olson’s findings.

    “These findings are hard to believe,” he said in an email. “The entire evaluation was a whitewash of significant breaches of ethics and conflict of interest by our current county council. They are apparently allowed to pick and choose which county ordinances they do or do not follow, and there are no consequences.”

    Obviously unable to investigate the allegations as she is a named respondent, Sloan requested Olson to perform an external audit. Olson did so and found that while some of the allegations in Jackson’s complaint were largely without merit, she identified several minor issues that will require Sloan’s and the council’s attention.

    To put Jackson’s complaint into context, it is based on two meetings regarding an ordinance involving the often-contentious overnight lodging debate. Every member attended the July 16 regular meeting except for Jaylyn Hawks, who was on an international business trip. The key item on the agenda was the approval of a long-anticipated change to Grand County’s Land Use Code by eliminating the development of overnight lodging establishments as a use by right.

    After months of town halls, workshops and other meetings with Landmark Design, the Salt Lake City-based consulting firm that helped create the ordinance, it failed to pass in a surprising 3-3 tie.

    Developers of overnight lodging, existing hoteliers and Highway 191 frontage property owners had urged the council not to pass the ordinance a week before. The vast majority of citizens, however, favored the changes in hopes that the community could have a chance to develop the infrastructure necessary to handle millions of visitors a year.

    In that first meeting, Members Curtis Wells, Rory Paxman and Greg Halliday voted to reject the ordinance.

    Two days later in a special meeting, two things happened that reversed the first vote. One was, Hawks participated by phone and voted yes and the other was that Halliday changed his vote to a yes. Neither Wells nor Paxman attended the special meeting, which, incidentally, was held after a staff member had accidentally canceled it.

    The cancellation was one of Jackson’s allegations and it is one Olson said, “may in the strictest and most formalistic interpretation of the law, be considered a violation of the Open and Pubic Meetings Act.” The meeting notice met the 24-hour requirement, but the cancellation added confusion. The erroneous cancellation was corrected before it was published on the Utah Public Notice website.

    Had that happened, the error would have been more harmful. It should be noted the meeting was well attended.

    What Olson did not find was credible evidence to support one of Jackson’s most serious allegations: That members Hawks, Paxman and Wells violated the Utah Public Officers and Employees Ethics Act, which states in part, “No public officer or public employee shall have personal investments in any business entity which will create a substantial conflict between that council members’ private interests and his public duties.”

    The allegation was that someone on the council would be unjustly enriched with fewer competitors. Hawks, however, is the only person who voted yes and who has an interest in overnight lodging — she’s part owner of a bed & breakfast — and she disclosed her interest in writing. Wells and Paxman also have financial interests in tourists staying in Moab, but they voted against the ordinance.

    While each member has repeatedly disclosed potential conflicts, Hawks as the part owner of a B&B did not have one in the overnight lodging debate because B&Bs were previously grandfathered in as a permissible use. Meanwhile, both Wells and Paxman have interests in overnight accommodations, they are non-restricted and the men are required to disclose that interest, not recuse themselves from voting on the overnight lodging ordinance.

    In fact, Wells no longer owns overnight rentals in Grand County, according to Sloan. His properties are located in and regulated by the city.

    Olson said Jackson’s allegation that the council violated the County Officers and Employees Disclosure Act has merit based on the letter of that particular law, but not its spirit.

    The act requires any elected or appointed official who has a substantial interest in any business entity the county has regulatory power over to disclose his or her position with the business and the “precise nature and value of the officer’s interest” upon first taking their seat and each January thereafter.

    While Jackson said that only Hawks filed the disclosure by the deadline, Olson said the other members also filed them, but not in January. Olson said it would be a “best practice” for the filings to occur in January.

    Olson said most of Jackson’s conclusions are faulty. “In his lengthy complaint, Mr. Jackson often conflates the requirements of the various statutory sections, ordinances and policies and procedures.” She said most of Jackson’s complaints were without merit, and even those complaints that had “some merit” were “harmless at this late date.”

    Olson, however, also recommended “Grand County take care to comply with the Open and Public Meetings Act, the Government Records Access and Management Act (including records retention) and to either comply with or amend or repeal Grand County ordinances.”

    For Jackson, the issue boils down to the vote to remove overnight lodging development as a use by right. It has become customary that Grand County Council members declare any potential conflict of interest they might have with any items on any meeting agenda, but Jackson isn’t buying that.

    “I don’t know what else a citizen can do to demand accountability and transparency of elected officials,” he said. “I’m baffled that three of the council could have direct financial ownership interest in the overnight lodging industry, still vote on issues that directly enhance their businesses by elimination of future competition, and that isn’t a conflict of interest. I don’t know what more level of proof is required than simply looking at their actions on the record and their financial disclosure information.”

    Sloan noted Jackson’s allegation that the timing was odd when the county amended its ethics ordinance regarding when to disclose and when to recuse shortly after the controversial meetings in July. She said she could understand why he would do so, but the process to amend the ethics guidelines began in February of 2019 and meandered its way through the vetting process.

    Sloan’s mother died in June following a lengthy battle with cancer and Sloan took time off to mourn her passing. The delay pushed the vote on the amended ethics rules into July.

    Sloan did credit Jackson with pointing out that the county hasn’t always complied with its own policies and procedures regarding special meetings, taking roll call votes when one or more members participate telephonically and other issues.

    She said in light of Olson’s review she has begun a “revision of our local council policies and procedures to make it more consistent with state statue, which update is scheduled for consideration at the [April 21 Grand] County Council meeting.” Sloan said she will also conduct a separate Open and Public Meetings Act training for the council “once in-person meetings resume, in addition to our annual training that is open to all boards and commissions.”

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