SB 188, Howard Stephenson sneaks provision into charter school bill specifically allowing conflicts of interest

At the end of my budget post last week, I mentioned that I generally have no beef with charter schools, but that I have problems with legislators using them for financial gain. Howard Stephenson sponsored a bill that could possibly reap direct financial benefits for sitting legislators and other influential GOP insiders on charter school boards. The most ethical full-time lobbyist on the hill--so ethical that he can earn his substantial living by being paid to advocate for laws that benefit his secret clients--yet NOT have any important conflicts of interest as a legislator, pushed this bill which dealt with another substantial policy issue, removing the cap on charter school enrollment.

SB 188. The frustrating part is that those in charge of acting as gatekeepers were asleep at the wheel. The executive summary of the bill mentions on Line 20 that it "modifies conflict of interest provisions applicable to charter school officers."

Click on the link above and then listen to the file, Senate Education Committee 2/24, of the Senate Education Committee hearing for the bill. The relevant sections are about 17-18 minutes long, but the relevant part to this post is only about a minute and 5 seconds long, from 4:00 minutes into the audio to 5:05. Senator Stephenson has a staff lady basically read the executive summary and explain it to the committee, and she explains the basics of allowing conflicts of interest in that minute. Following this, the State Superintendent of Public Schools, Larry Shumway, (whom I generally like and applaud for his ability to work with legislators), some State Charter School Board members, and the legislators get sidetracked off onto a minor issue: whether the new non-voting member of the State School Board should be called a delegate instead of a non-voting member. They chew on this over and over and never even talk about the principal issue of the bill, whether the enrollment cap should be lifted, let alone the conflict of interest provisions or committee to review charter school loan requests. I have reservations about lifting the cap purely because of funding considerations, but charter schools are serving a lot of children well.

Next, you can click on the link to the floor debate in the Senate (scroll down to near the bottom of Part 2 and look for SB 188). It's 12 minutes long with another minute for voting. I watched the video; I'm assuming the audio is the same length. Once again, Senator Stephenson gives the short explanation of the conflict of interest provision from 1:35 to 1:57. The Senate debates about the "non-voting delegate" amendment for the majority of the time and the bill passes without one question being asked about the other provisions. Does no Senator see any problem with this?! Now I can understand that possibly this was dealt with extensively in interim, but I know all of the legislators who talk so much about poorly informed people signing voting initiatives did not read this bill. I don't think Senator Stephenson was even very familiar with it in committee. They just trust each other because they are all so trustworthy and stuff. I blogged about this last year as well.

Now to the floor debate in the House (The SB 188 video is about halfway through Part 2). At first I was happy with Representative Lockhart's presentation. She first moves a technical amendment. From about 1:30 to 2:30, she gives a much better summary of SB 188. She focuses on the change in the charter school enrollment cap and lists some other provisions. However, she curiously omits both the conflict of interest change and and the new non-voting member of the State School Board that the first two debates fixated upon. Representatives Allen and Cosgrove at least ask some questions about other sections of the bill. Small little bravo as it is also obvious they are not familiar with the bill and haven't read it. No one else asks a question. At about 6:30, Speaker of the House, Dave Clark, says there are no other questions and turns the bill over to Rep. Lockhart for final summation. At this point, when debate has been cut off, she mentions those last two items she omitted from her initial explanation. At 6:35, she brings up the new position on the State School Board. From 7:00 to 7:17 she "explains" the conflict of interest provisions. Here's my rough transcription:

"And then there's also at the end of the bill some issues having to do with members of charter school boards and potential conflicts of interest and how they deal with those conflicts of interest as it relates to their individual schools."

Whether on purpose or not, this is a dishonest description. The relevant part of the bill is on lines 270-282. The original text of that section of law read:

A charter school officer or a relative of a charter school officer may not have a financial interest in a contract or other transaction involving a charter school in which the charter school officer serves as a charter school officer.

There was NO potential for conflicts of interest. The new bill text reads as follows (The underlined parts represent the additions or changes being made to the current law.):

270 (3) (a) [A] Except as provided in Subsections (3)(b) and (3)(c), a charter school officer
271 or a relative of a charter school officer may not have a financial interest in a contract or other
272 transaction involving a charter school in which the charter school officer serves as a charter
273 school officer.
274 (b) If a charter school's governing board considers entering into a contract or executing
275 a transaction in which a charter school officer or a relative of a charter school officer has a
276
financial interest, the charter school officer shall:
277 (i) disclose the financial interest, in writing, to the other charter school officers;
278 (ii) submit the contract or transaction decision to the charter school's governing board
279 for the approval, by majority vote, of the charter school's governing board;
280 (iii) abstain from voting on the issue; and
281 (iv) be absent from any meeting when the contract or transaction is being considered
282 and determined.

The bill doesn't "deal" with potential conflicts of interest; it puts them into code!! The board members of a charter school used to not be able to make money off of the school, and now they can. OK, they can't be part of the meetings to decide. But did any legislator think about what it would be like to work closely in a policy group (like the legislature or a charter school board--management being respectively the executive branch and the school administration) with someone who provides a service, omit them from a meeting on purchasing that service, and then have to tell them at the next meeting that their company did not provide as good a service as a competitor? They didn't think there would be any undue pressure there? They honestly thought this was a section of code that needed changing to better serve the charter school students of Utah? Or did they even know about it?

Following this non-explanation, Speaker Clark immediately opened the unanimous voting in favor of the bill.

Did no one in the House even read the executive summary?! Even if Rep. Lockhart didn't bring it up until it was too late to comment on it, was no one curious about the conflict of interest section? Couldn't that provision have been easily amended out, leaving the actual meat of the bill? Let's place unprovable bets on what percentage of the legislators in both houses had read the bill at this point. I would feel confident saying under 10%.

The Trib's education reporter, Lisa Schencker, who does a sporadic job of in-depth coverage as opposed to the other papers who only cover controversial school legislation, covered the story both in committee and after final passage. She reported the main point about the removal of the charter school enrollment cap, but just got a quote from Stephenson the first time, repeated it the second time, and didn't dig any deeper.

I'd love to hear any justification for allowing conflicts of interest at public charter schools. I'm serious. Is there some wonderful service out there currently not being provided to the charter school students that some charter school board member will now provide? Is this wonderful service worth allowing someone's close colleagues to vote on whether he/she personally profits from their position of influence at a charter school? Who thinks Senator Stephenson knows at least one person by name who just happens to be a legislator or GOP donor and will immediately profit from this bill? Maybe even someone who contributes secretly to the Utah Taxpayer's Association?

1. So, please be angry at the end result of a tiny section of this bill expressly permitting conflicts of interest in charter school board expenditures.

2. Please be angry at the lack of review given this bill through a committee hearing and three separate floor hearings. There were a total of two questions asked not about the member/delegate semantics debate. This criticism does not just include legislators, but education representatives, including Superintendent Shumway.

3. And really think about the broader issue this one example represents of how the legislature works. A registered corporate lobbyist with secret clients sits as a Senator in our state legislature. He has frequently misrepresented his bills in committee and floor presentations (Example 2009, Example 2008) and abused legislative process (Example 2010) in order to push his pro-corporate, anti-school, money-making agenda.

This same Senator passed a bill, SB 275, allowing voter initiative proponents--almost exclusively establishment Republicans who oppose sharing power--to have an extra month to go door-to-door claiming that "deceptive signature-gathering practices" result in "lemon laws." He and the rest of the legislative leadership claim that no one is reading the initiative due to "half-truths and misrepresentations" and they don't know about the secret, horrible provisions that are unfair to the virtuous legislators.

Think about this post and think about their position. Be angry that the legislators reflexively trust each other and excuse their repeated lack of proper review of laws (Self-admitted example from 2007--this link is to a really long post full of great examples and quotes, relating both to bad legislative decisions and their attack on voter initiatives and referendums. It's worth the read.) while constantly insulting the public who are easily fooled by "hucksters."

I think this perspective helps better understand Dave Clark's comments about wanting Kevin Garn "back with us" and the standing ovation he received. Too many legislators instinctively and instantly rally to their own little club and defend it against all outsiders. Sign the voter initiatives for Fair Boundaries and ethics reform and take a larger step toward limiting conflicts of interest and money in our state legislature.

Articles about the Box Elder County referendum where a 2-1 vote of a 3-member county commission authorized the sale of the county landfill

This KSL article has an explanation of the initial positions, pictures, and some horrible arguments for disallowing referendums:

http://www.ksl.com/?nid=148&sid=3046883

The 2nd article down describes the court decision allowing the referendum--very applicable to the importance of referendums overall.

http://www.sltrib.com/news/ci_9028866
Box Elder residents want more say in landfill suit
By Kristen Moulton
The Salt Lake Tribune
Article Last Updated: 04/23/2008 03:21:32 PM MDT

Posted: 3:22 PM- BRIGHAM CITY - Box Elder County residents who
successfully petitioned for a right to vote on selling the county
landfill are now asking a judge to let them have a say in the lawsuit
challenging the referendum.
Eight residents, including several sponsors of the petition, say
in a 1st District Court filing that they have both a constitutional
and a statutory interest in seeing that the landfill vote remains on
the Nov. 4 ballot.
The Northern Utah Regional Landfill Authority, comprised of
garbage districts covering most of northern Utah, wants to turn Box
Elder County's Little Mountain Landfill southwest of Tremonton into a
large regional dump.
The three-member County Commission, two of whom also serve on the
authority's board, agreed last December to sell the landfill to the
authority.
But residents were angry over what they considered a lack of
public debate and circulated petitions to force a referendum on the
sale. They gathered far more signatures than were necessary, and
County Recorder LuAnn Adams certified the petitions and put the matter
on the ballot.
In its lawsuit against the county and Adams, the landfill
authority argues that the Box Elder Commission's decision to sell the
landfill was administrative, not legislative, and thus not subject to
a referendum.
Ron Germer, a Brigham City resident who is among the eight trying
to intervene in the case, said they are trying to protect the
constitutional rights of the 4,400 residents who signed petitions.
"It is unbelievable that NURLA would try to infringe upon the
rights of the people," he wrote in an e-mail. "If this is what we can
expect from them, I am not sure we should have anything to do with
them."
Some of petition signers have said that, although they eventually
may support selling the landfill, they want a more public process
before the decision is made.
NURLA was organized last year by four entities that handle all the
garbage - except Bountiful's - in Davis, Morgan, Weber, Box Elder and
Cache counties.
Participants are Wasatch Integrated Waste Management System, Weber
County, Box Elder County and Logan.
kmoulton@sltrib.com

http://www.sltrib.com/news/ci_9290468
Little Mountain facility
Box Elder landfill sale decision appears headed for the ballot
Judge Hadfield rejects arguments seeking to quash the referendum
By Kristen Moulton
The Salt Lake Tribune
Article Last Updated: 05/17/2008 12:34:41 AM MDT

BRIGHAM CITY - Box Elder County residents will get to vote after all on the sale of their Little Mountain Landfill to a regional landfill authority.
First District Court Judge Ben Hadfield has rejected arguments from the Northern Utah Regional Landfill Authority (NURLA) to keep a voter referendum off the Nov. 4 ballot.
Reggie Petersen of Penrose cheered the judge's decision.
"I'm happy the judicial system protected the Constitutional right of the people to have a say," he said.
The Box Elder County Commission voted last December to sell the landfill southwest of Tremonton to NURLA, formed in 2007 by garbage districts covering five northern Utah counties. The plan is to line and enlarge the landfill to eventually accommodate garbage from Davis County on the south to Cache County on the north.
Unhappy with the sale, county residents gathered more than 4,000 signatures to put a referendum on the ballot.
NURLA sued, asking the judge to rule that Box Elder County Clerk LuAnn Adams was wrong to certify the petitions.
The landfill authority argued that the commission's decision was administrative, not a policy-making decision open to referendum. It also argued that the sale fell under Utah's Interlocal Cooperation Act, which prohibits referendum - and that the matter was too complex to entrust to voters.
The judge rejected all three arguments.
"The court finds that the issue . . . is one of great potential impact upon the county's environment, resources and citizens and very appropriate for voter participation."
Weber County Commissioner Craig Dearden, the chairman of NURLA, said the authority board will meet June 5 to discuss its options.
The lawsuit, he said, was more about clarification than preventing the public from voting, he said.
Nonetheless, "We felt like the County Commissioners represent the people and were elected by the people and they made their decision to sell it."
kmoulton@sltrib.com
www.sltrib.com

http://www.sltrib.com/news/ci_9630930
Election issue
Landfill authority to make case for dump sale on ballots
The agency previously had opposed putting the matter before voters
By Kristen Moulton
The Salt Lake Tribune
Article Last Updated: 06/19/2008 12:44:28 AM MDT

BRIGHAM CITY - The board representing garbage districts in five
northern Utah counties decided unanimously Wednesday to drop its
challenge of a voter initiative in Box Elder County.
The Northern Utah Regional Landfill Authority board (NURLA),
comprised of elected officials from Davis to Cache County, instead
turned its attention to defeating the initiative on November's ballot.
Opponents of selling Box Elder County's Little Mountain Landfill
to NURLA gathered more than 4,000 signatures last winter, giving
voters a shot at reversing a Box Elder County Commission decision made
last December.
The NURLA board this spring sued in 1st District Court, arguing
the matter was not open to a referendum, but Judge Ben Hadfield ruled
against NURLA.
"We communicated as a body that our intent was to refer to the
court to have its opinion," said Box Elder County Commissioner Clark
Davis, who added that the board should "live with the decision."
The board now has to figure out how it will campaign for the sale
because it is illegal to use public money to do so.
Attorney Patrick Malone said NURLA can use public money to explain
its reasoning, but must give opponents the opportunity to explain
their positions as well.
Brigham City Mayor Lou Ann Christensen told the board its plan for
a regional landfill would save the city $90,000 to $150,000 a year in
tipping fees. She encouraged the board to organize independent
supporters to raise money for the publicity campaign.
Opponents of selling the landfill told the board it should
consider other options.
Dean Anderson, of Bear River City, said the Little Mountain site
is too small for the five counties' garbage, while a site on
Promontory Point is better suited.
"They just need to look at the big picture," said Anderson. "They
need to super-size."
The board settled on expanding the landfill at Little Mountain,
southwest of Tremonton, as the best choice after a feasibility study
last year.
Resident Bonnie Germer, who was involved in the petition drive,
said she doesn't want her county partnering with others in the
regional landfill authority.
"If you lose in November, don't come back suing us, because we
will fight you again," said Germer.
kmoulton@sltrib.com

Articles about Sevier County power plant referendum and SB 53--power company tries to switch zoning acronyms to avoid referendum

A few lines underlined by me.

http://www.sltrib.com/news/ci_9813736
Sevier County plant will be on ballot
Residents will vote on the coal-fired power facility in November
By Patty Henetz
The Salt Lake Tribune
Article Last Updated: 07/08/2008 12:21:40 AM MDT

A referendum that would allow Sevier County residents to vote on
construction of a coal-fired power plant will be on the November
ballot, thanks to agreement Monday of the County Commission to take no
action on it.
That allowed the measure to go to the public vote without the
commission actually endorsing it, said Commission Chairman Gary Mason.
"I have no trouble [with] it going to the voters," Mason said.
"That takes the monkey off my back."
The commission validated the citizens' referendum petition, which
had more than the necessary number of signatures, Mason said. The
measure would amend the county's conditional-use permit ordinance to
require voter approval prior to issuing such permits for coal-fired
power plants.
It also would revoke any conditional-use permit issued - specific
language likely to further snarl the long-simmering dispute, because
the county is now considering Sevier Power's permit request as a
planned unit development request, said County Attorney Dale Eyre.
The terminology switch, said coal-plant opponent Elaine Bonavita,
was "a smooth move."
Everybody thought the commission's decision was a victory, said
Bonavita, chairwoman of the Right-to-Vote Committee. "But I must tell
you this: It was a victory clouded in deceit," she said.
" 'Conditional-use permit' is on the ballot, and if they change
the wording, they've pulled a fast one," she said. "We will go to
litigation."
A planned unit development typically is a residential project that
features relatively dense clusters of houses, which are usually
surrounded by areas of commonly owned open space maintained by a
nonprofit community association. A conditional-use permit is a
variance to allow a project otherwise prevented by zoning.
Mason said the commission always considered the Sevier Power
request to be for a PUD. Right-to-Vote Committee attorney Jeff Owens
says that's not so.
The county previously changed its zoning to allow the power plant.
A lawsuit on that decision is pending, Eyre said. There also is the
matter of SB53, a possibly unconstitutional law passed during this
year's legislative session, which bans voter initiatives on land-use
ordinances.
"SB53 will always be out there," Eyre said. "But unless someone
approaches a court or maybe the attorney general's office, we're not
going to take any action to stop the ballot."
No matter which way the November vote goes, Eyre said, he expects
to go to court.
Sevier Power co-owner Bruce Taylor sounded an ominous note about
the referendum after the commission meeting.
"We do not believe it will get to the vote," he said.

History of the Sevier Power Project

Nevco, a Nevada limited liability corporation with offices in
Bountiful, for seven years has sought to build the Sevier Power
Project near Sigurd, about midway between Richfield and Salina. The
$600 million plant would burn about 940,000 tons of coal per year
using a technology called fluidized bed combustion to produce enough
power for 135,000 homes. As a so-called merchant plant, it would sell
the power on the open market. The Sevier County Commission had four
options Monday: Adopt the petition and put it on the ballot; adopt it
without putting it to the vote; reject it; or take no action, which
means the referendum goes to the ballot if no further action is taken
during the next 30 days.

http://www.sltrib.com/news/ci_10321401

Coal plant sues to get rid of ballot initiative
By Cathy McKitrick
The Salt Lake Tribune
Article Last Updated: 08/28/2008 12:06:43 AM MDT

Attorneys for Sevier Power Company have sued Sevier County officials to get a citizens' initiative kicked off the ballot. They also seek an expedited decision as ballots have to go to print by mid-September.
"I feel confident the judge will rule in our favor," says Fred Finlinson, a Saratoga Springs attorney representing Sevier Power.
Finlinson notes that the proposed coal-fired power plant falls under the county's planned unit development (PUD) ordinance, not the conditional-use permit (CUP) section of county law.
Last spring, more than 1,500 voters signed petitions provided by Elaine Bonavita's Right To Vote (RTV) committee, specifically targeting Sevier County's conditional use ordinance as it relates to coal-fired power plants.
Known as Proposition 1, the measure would require voter approval before the county can issue conditional-use permits for such facilities. It would also revoke any permits already approved for pending power-plant construction.
"That becomes fairly critical," Finlinson, a former state senator, adds, ''because the conditional use in Sevier County simply doesn't apply to any commercial or industrial development.''
In early July, Sevier County commissioners allowed the initiative over the hotly contested power plant to advance to the ballot - then switched labels and began referring to Sevier Power's CUP request as a PUD.
The switch in terminology means the ballot measure no longer applies, says Finlinson.
RTV's attorney disputes that reasoning.
"This is a conditional-use permit they're seeking. Whether you call it a pig, horse or cow, it is what it is," asserts Jeff Owens, a land-use attorney with the Salt Lake City-based firm of Strong and Hanni.
Owens intends to argue that a recently passed state law, SB53, restricting local initiatives is unconstitutional, a legal battle he said he is eager to fight.
"Our suspicions that they were trying to skirt our initiative are confirmed, and I don't think that will sit well with the people of Sevier County."
cmckitrick@sltrib.com

New Utah law being put to test
SB53, which took effect in May, limits local initiative and referendum rights pertaining to land-use ordinances and their implementation. While the state Constitution protects those rights, a large body of case law prohibits putting administrative land-use actions to a public vote. In late April, the attorney general's office gave its opinion that courts might strike down the new law. So far, two cases involving SB53 await legal action, including the Sevier Power case and another involving a proposed development in Beaver County.

http://www.sltrib.com/opinion/ci_10207373
Sevier subterfuge: County out to foil efforts of its citizens
Tribune Editorial
Article Last Updated: 08/14/2008 07:16:09 PM MDT

It seems that since Sevier County officials failed to keep a citizen initiative that they don't like off the ballot, they're willing to try subterfuge to make the vote meaningless.
At the least, the county attorney and County Commission are engaged in a campaign of aggressive obfuscation apparently aimed at frustrating the democratic right of their constituents to have a voice in determining the county's future health and welfare.
The complicated conflict began when a grass-roots group of citizens objected to construction of the Sevier Power Project near Sigurd. The $600 million plant would burn about 940,000 tons of coal per year and spew CO2 and other pollution over the region.
When the County Commission went ahead and approved the plant anyway, the Right to Vote Committee managed to gather more than enough signatures in just over a week to put the proposal on November's ballot.
Their initiative would stop the power plant by revoking the current permit and requiring that voters approve any conditional-use permit for a coal-fired power plant. The group acted quickly, before a constitutionally suspect state law that bans initiatives and referendums on land-use issues went into effect.
At that point, the County Commission members decided not to object to the voter initiative. Instead, they contrived another tack. The initiative as written amends the "conditional-use permit ordinance." So these public servants labeled the project a "planned-unit development," which requires a different kind of permit. Even if voters approve the initiative, it would not block the Sigurd plant. Cute.
The planned-unit development label is ordinarily applied to residential projects that feature clustered housing and areas of open space. A power plant is no PUD. A conditional-use permit, on the other hand, is a variance to allow a project to go forward in a zone where it would otherwise be prohibited.
Sevier County Attorney Dale Eyre contends that the Sigurd plant was always referred to as a PUD, but an attorney for the citizens group disputes that in a complaint to the Utah Attorney General's Office, and says he has documents referring to a conditional-use permit for the plant. He also says Eyre did not notify the group of the time period when it could contest wording of the initiative.
Even if the county is innocent of skulduggery in this dispute, which seems highly unlikely, it is obviously guilty of standing in the way of citizens exercising their constitutionally protected right to legislate by initiative. That alone pollutes the atmosphere of Sevier County.

http://www.sltrib.com/ci_9597737
Muzzling the people: Legislature should not take lawmaking petitions away
Tribune Editorial
Article Last Updated: 06/15/2008 10:47:56 PM MDT

The Utah Constitution says that two groups can make laws: the
Legislature and the people. The first group is trying to cut the
second group out of the process. That isn't right, and the Utah
Supreme Court should put a stop to it.
This year, the Legislature passed Senate Bill 53, which says that
the voters of any county, city or town may not initiate a land use
ordinance or a change in a land use ordinance. That's the right of
initiative we all learned about in school.
For good measure, the Legislature also said that the people may
not require a land use ordinance passed by the local legislative body
(city council or county commission) to be submitted to the voters for
approval before it can take effect. That latter process is called a
referendum.
This bill, which was passed virtually without opposition in the
Legislature and signed quickly into law by Gov. Jon Huntsman, is an
insult to the plain wording of the Utah Constitution, which reserves
the rights of both initiative and referendum to the people.
In 2002, the Utah Supreme Court commented that "the power of the
Legislature and power of the people to legislate through initiative
and referenda are coequal, coextensive and concurrent and share 'equal
dignity.'" It follows that the Legislature can't take that power away
from the people in defiance of the Utah Constitution.
Why would the Legislature do this? To help developers, of course.
In the delicate balance between private property rights and community
interests, the Legislature is putting its thumb on the scale to favor
property.
Private property rights are a foundation of the republic. But when
one property owner does something that profoundly affects his
neighbors, and their property, there's got to be a balancing process.
That's where local planning and zoning laws come in.
SB53 passed during a bitter fight in Beaver County over the
redevelopment of Elk Meadows Resort into the $3.5 billion Mount Holly
Club. The citizen effort to make that project the subject of a
referendum will provide the test case for SB53 before the Utah Supreme
Court. The outcome of that case also will affect an initiative
petition in Sevier County targeting a proposed 270 megawatt coal-fired
power plant near Sigurd. Both of these projects will have far-reaching
effects on the neighboring communities.
In both fights, the people should have the right to seek a direct
voice at the ballot box, and the Legislature should not be allowed to
muzzle that voice.

Collection of articles on the Beaver County referendum fight and the Attorney General's office gives the opinion that SB53 is unconstitutional

Do you believe Governor Huntsman actually read SB53 before signing it? What about legislators? What about Senator Goodfellow? Was it just cut and pasted from an email from Steve Barth? And this is the shorter of the two referendum change bills...

I am posting these articles with a few things underlined by me.

http://www.sltrib.com/ci_9175754

Utah AG has doubts about new law banning voter initiatives on land issues
By Cathy McKitrick
The Salt Lake Tribune
Article Last Updated: 05/06/2008 11:22:19 PM MDT

Posted: 9:42 PM- The Utah Attorney General's Office believes there's a good chance that a new law banning voter initiatives on land-use ordinances is unconstitutional.
In an April 29 letter to Sevier County Attorney Dale Eyre - obtained by The Tribune today through an open-records request - Assistant Attorney General Thom Roberts said there is "a serious concern that a court would strike SB53 down as violative of the Utah constitutional provisions concerning initiatives."
Roberts wrote that by banning initiatives and referenda on land-use ordinances, the law "appears in direct conflict with the Utah Supreme Court cases" on such voting rights.
A group of Sevier County residents, dubbed the Right to Vote committee, turned in 1,536 signatures last Friday to put plans for a coal-fired power plant to a public vote. SB53 took effect Monday.
The bill's sponsor, along with the lobbyist credited as the brains behind the developer -friendly measure, defended its purpose.
"My legislation was in no way intended to take away the right of the people to petition their government," said Sen. Brent Goodfellow, D-West Valley City. "But I think that right applies to legislative matters, not administrative or executive. I was trying to put into statute what is already in case law."
Lobbyist Steve Barth agrees.
"The court has been very consistent in drawing that line and this was to save people the time and money of a wasted referendum effort," Barth said.
One of Barth's clients, Mount Holly Partners, faces extended litigation brought by Beaver County residents who oppose the multi-billion-dollar Mount Holly Club project planned for 1,800 acres in the Tushar Mountains.
A 5th District Court judge ruled last July against the residents and their desire to put that development to a public vote. Their attorney, Joel Ban, appealed the case to the Utah Court of Appeals and briefs are expected to be filed this week.
Ban said he suspected - but did not know - that developers had turned to the Legislature to try to cut off such citizen ballot movements.
"That's typical of these kind of developers," Ban added. "I'm not surprised by anything they've done."
Goodfellow's SB53, touted as mostly housekeeping during the recent Legislative session, sailed through with little opposition
"No one asked for our opinion on its constitutionality until now," said Attorney General spokesman Paul Murphy.
Eyre, the Sevier County Attorney dislikes SB53. And he agrees with the AG's opinion.
"It will help the county make its decision," Eyre said, noting that commissioners can either enact the Right to Vote committee's ordinance themselves, place it on November's ballot or reject it.
That ordinance would require that all future power plant applications go to a public vote and would also revoke any power permit granted between the filing date of the initiative and the time of the vote.
Gov. Jon Huntsman Jr. signed SB53 in mid-March.
"It's fair to say that we don't get an AG opinion on every bill that passes," said Lisa Roskelley, the Governor's spokeswoman.
"Considering it passed with such an overwhelming majority, we thought it was appropriate to sign it into law and if it came to this situation, any judicial clarification would be beneficial."
cmckitrick@sltrib.com

http://www.sltrib.com/news/ci_9200987
Beaver County: New law put to the test by developer
Attorneys argue that it renders a citizens referendum on a development moot
By Cathy McKitrick
The Salt Lake Tribune

A law that took effect Monday - a law the state Attorney General's Office believes could be unconstitutional - is being used as a developer's argument to get a voting-rights case tossed out of court.
When SB53 was going through the Legislature earlier this year, backers called it a "housekeeping" measure that simply put into code established case law.
Attorneys for a planned $3.5 billion Mount Holly Club development in Beaver County, however, argue the new law is much more than a technicality.
On Tuesday, one day after the new law took effect, lawyers representing Mount Holly Partners LLC, CPB Development LC and Beaver County, filed briefs in the Utah Court of Appeals asking that a lawsuit brought by a group of Beaver residents be dismissed.
The attorneys argued that SB53 renders a citizens referendum on the project moot and that the case belongs in the state Supreme Court, not the Court of Appeals.
Steve Barth, a lobbyist who claimed credit for the bill, lists Mount Holly as a client.
"The 2008 Utah Legislature has enacted revisions to the Utah Elections Code, effective May 5, 2008, which make land-use ordinances of the nature at issue in this case not subject to a referendum vote," the briefs state. In other portions of the documents, the attorneys specifically identify SB53 as the basis of their argument.
A message left for the Mount Holley attorneys was not returned Thursday.
Attorney Joel Ban, who represents the residents group, said he has 10 days to file his response.
"I don't think SB53 is constitutional - that's what I'm sure about," Ban said Thursday. "But in terms of its effect on this case, that's up in the air right now."
A letter released by the Utah Attorney General's Office Tuesday in a different voting-rights case - this one in Sevier County - said there is "serious concern that a court would strike SB53 down as violative of the Utah constitutional provisions concerning initiatives."
The Beaver County dispute heated up last spring when county commissioners passed an ordinance authorizing the county to enter into a developer's agreement, paving the way for phased construction of 2,000 multimillion-dollar homes around a ski resort and premiere golf course.
Members of a long-standing homeowners association went to court to halt the project and gathered 845 signatures to put it to a public vote. Last June, a 5th District judge ruled in favor of the developer, deeming the commission's decision administrative and therefore not subject to referendum.
The residents' group is appealing that ruling.
The original version of SB53 introduced in the Legislature stated that the voting ban applied to a land-use or zoning matter "administrative in nature." However, before it's first floor vote, that was replaced with broader language.
Lincoln Shurtz, legislative analyst for the Utah League of Cities and Towns, helped to craft the substitute version, which passed with minimal opposition.
The bill was changed out of concern the original went too far in trying to "draw a bright line between administrative and legislative" actions, Shurtz said.
"That line is quite blurry at times," Shurtz acknowledged.
cmckitrick@sltrib.com


What does SB53 do?

Lobbyist Steve Barth pushed for legislation to help his client, Mount Holly Partners LLC. In the recent legislative session, Sen. Brent Goodfellow, D-West Valley City, sponsored SB53 and Rep. Kevin Garn, R-Layton, co-sponsored it in the House. Here's what SB53 does:
* Bars legal voters of any town, city or county from initiating a land-use ordinance or a change to a land-use ordinance.
* Also bars the aforesaid voters from requiring the implementation of a land-use ordinance to be submitted to a public vote.

http://www.sltrib.com/news/ci_9342999
Mount Holly
Lawyer urges project to go to referendum
Developers, on their part, say the appeal should be dismissed
By Cathy McKitrick
The Salt Lake Tribune
Article Last Updated: 05/22/2008 01:05:32 AM MDT

A developer's legal battle to block a public vote on its plans for a
pricey ski-and-golf resort in Beaver County took a circuitous and
"desperate" detour through the state Legislature, charges an attorney
for resort opponents.
"In what can only be described as a series of desperate acts,
[developers] have taken extraordinary measures to try and avoid a
legal review of the trial court's conclusions," Joel Ban, attorney for
a grass roots group trying to put the Mount Holly project to a vote,
wrote in appeal briefs filed Wednesday.
"[Developers] hired a lobbyist, pursued an amendment to the
referendum statute and then filed a request to extend the briefing
schedule. Knowing that SB53 had been signed by the governor and would
become effective May 5, they nonetheless waited until the last day to
act," Ban wrote.
Sen. Brent Goodfellow's SB53 - a new law confusing to the point
state lawyers say it could be unconstitutional - took effect May 5.
A day later, CPB Development LC and Mount Holly Partners LLC used
it as the basis to ask that a resident group's appeal get tossed out
of court.
Ban wants the Utah Court of Appeals to allow the Mount Holly
project to go to a referendum vote. A lower court, in a complex
decision, ruled it could not.
Ban claims the issue is subject to referendum because the county
decision constituted legislative action - the enacting of an ordinance
establishing the details of the Mount Holly Club development
agreement.
Developers say the appeal should be dismissed, arguing that SB53
bans referendums on all local land-use issues. It also claims the
state Supreme Court is the proper forum for an elections dispute.
In late April the state Attorney General's Office questioned
SB53's constitutionality in a letter sent to Sevier County Attorney
Dale Eyre - concerning another right-to-vote effort, this one over a
controversial coal-fired power plant.
Assistant Attorney General Thom Roberts cited Article 6 of the
state Constitution, which provides for the people's fundamental right
to legislate through initiative and referenda.
That right - viewed as sacrosanct - bucks up against individual
property rights, said Dan McDonald, an attorney with Smith Hartvigsen,
the firm representing CPB and Mount Holly.
"More and more, citizen groups who dislike a landowner or
development organize themselves to challenge land-use decisions,"
McDonald said.
"The Supreme Court has repeatedly recognized that individual
property rights are important as well as deference to local land-use
authority."
McDonald intends to file a quick answer to Ban's brief today -
although the court could rule without it.
The weighty issues of SB53's constitutionality - and application
to this case - cannot be ignored, McDonald said.
"This has statewide impact and is important enough that we think
it will percolate to the Supreme Court, no matter who loses in the
Court of Appeals."
cmckitrick@sltrib.com

http://www.sltrib.com/ci_9597737
Muzzling the people: Legislature should not take lawmaking petitions away
Tribune Editorial
Article Last Updated: 06/15/2008 10:47:56 PM MDT

The Utah Constitution says that two groups can make laws: the
Legislature and the people. The first group is trying to cut the
second group out of the process. That isn't right, and the Utah
Supreme Court should put a stop to it.
This year, the Legislature passed Senate Bill 53, which says that
the voters of any county, city or town may not initiate a land use
ordinance or a change in a land use ordinance. That's the right of
initiative we all learned about in school.
For good measure, the Legislature also said that the people may
not require a land use ordinance passed by the local legislative body
(city council or county commission) to be submitted to the voters for
approval before it can take effect. That latter process is called a
referendum.
This bill, which was passed virtually without opposition in the
Legislature and signed quickly into law by Gov. Jon Huntsman, is an
insult to the plain wording of the Utah Constitution, which reserves
the rights of both initiative and referendum to the people.
In 2002, the Utah Supreme Court commented that "the power of the
Legislature and power of the people to legislate through initiative
and referenda are coequal, coextensive and concurrent and share 'equal
dignity.'" It follows that the Legislature can't take that power away
from the people in defiance of the Utah Constitution.
Why would the Legislature do this? To help developers, of course.
In the delicate balance between private property rights and community
interests, the Legislature is putting its thumb on the scale to favor
property.
Private property rights are a foundation of the republic. But when
one property owner does something that profoundly affects his
neighbors, and their property, there's got to be a balancing process.
That's where local planning and zoning laws come in.
SB53 passed during a bitter fight in Beaver County over the
redevelopment of Elk Meadows Resort into the $3.5 billion Mount Holly
Club. The citizen effort to make that project the subject of a
referendum will provide the test case for SB53 before the Utah Supreme
Court. The outcome of that case also will affect an initiative
petition in Sevier County targeting a proposed 270 megawatt coal-fired
power plant near Sigurd. Both of these projects will have far-reaching
effects on the neighboring communities.
In both fights, the people should have the right to seek a direct
voice at the ballot box, and the Legislature should not be allowed to
muzzle that voice.

What do Utah state legislators say to themselves before they go to bed at night? Or legislative mixed messages…

State legislators, to put it mildly, seem to be sending some mixed messages these days. I’m not asking how do they sleep at night, just what they say to themselves. I wonder, from their perspective, what does the world look like? I seriously wonder what goes on inside of their heads. How do they internally reconcile conflicting actions or input? What is truth? These are just some of the recent education-related mixed messages:

1. As I blogged about on Jan. 21, the legislative audit of the classroom size reduction money specifically said that the school districts money were spending the money correctly…but that the legislature hadn’t allocated enough to cover smaller sizes and normal population growth. The lack of reduction was purely about not enough money for too many kids; NOT mismanagement by the districts. Cameron at Magic Valley Mormon explains the findings of the audit even better here and here.

But the Senators I heard speak at a neighborhood meeting claimed the opposite. Senator Stephenson has gone further and said that it’s not the state’s job to reduce classroom size. He wants to take away the classroom size reduction money the districts now receive unless they magically reduce classroom size.

Mixed message to districts: We didn’t assign enough money to reduce classroom sizes, but we’re mad that you didn’t reduce classroom sizes. Now as punishment for not accomplishing what we didn’t assign you enough resources to do, we’re going to take the already insufficient state money away and demand you reduce class size with local money. All of this, even as Rep. Dougall runs a bill eliminating some of the local revenue streams in favor of taxes distributed by the state legislature. (Does this sound like an educational Dilbert comic to anyone else?)

2. The legislators insisted that the voucher bill was not about privatizing the public education system. In fact, vouchers were only going to strengthen public schools.

That assertion is hard to believe when Rep. Frank and Sen. Stephenson are running HB0075 and HB0076. These bills seek to create special “Privatization Commissions” at both the state (both HB0075 and 0076) and local (HB 0076) levels with business interests representing the majority of the commissions. These commissions would have authority to disallow any government service that could be provided privately (with very few exceptions), regardless if that service would be more expensive or of it even would be provided. Local governments would have to comply with large amounts of paperwork to justify their actions to the commission. (Rep. Frank has been correctly zinged for the bills’ effects and for talking out of both sides of his mouth on his blog. He passionately claims that he is ONLY going after state government, citing HB0075, while conveniently ignoring the other bill he is sponsoring, HB0076, that would specifically disallow public pools from “competing” with private pools.)

So the legislators want to privatize public pools, recreation centers, golf courses, garbage collection, etc. but they of course have no interest in privatizing education…or financial stake.

3. Senator Bramble similarly danced around the truth. I asked him at the local meeting if the legislature was going to change what I regard as already tough referendum laws to make it even harder for citizens to vote on a controversial law. (The referendum last November was the first successful state referendum in over 30 years. Not successful as in passing—it was the first state referendum to even get enough signatures to be voted on in that time.) The senator went on for several minutes about why he thought referendums were a bad thing. I thought the arguments didn’t hold a lot of water. But he finally said that they weren’t going to change the requirements, though they might for citizen initiatives. (To the best of my understanding, voter initiatives are bills/proposals/laws written by non-legislators. If a high enough percentage of voters sign a petition, the bill is put on the public ballot, thus bypassing the legislature. Voter referendums involve laws that the legislature has already passed. Afterwards, if a high enough percentage of voters sign a petition, the passed bill is put on the public ballot, thus potentially overriding the vote of the legislature. The legislators I heard speak seem to hate both. Go figure.)

Senator Bramble was misleading. They are leaving State Referendums alone, but SB0054 attempts to change both county and municipal referendums, as well as state, county, and municipal initiatives.

If it passes, the deadlines will be moved up over two months for all of those vehicles of citizen redress, making it even harder for a group to gather the necessary signatures before the arbitrary deadline. They left state referendums out because that move would attract too much attention after the successful referendum last November. Does anyone doubt that within a year or two the requirements of state referendums will also be changed to match all of the other citizen referendum and initiative laws?

4. Last, the legislature has been hit hard in the media and by bloggers this year over the influence of lobbyist gifts and campaign contributions. Speaker Curtis, State Attorney General Shurtleff, and Senator Dmitrich have all publically claimed that these perks do not corrupt or influence the legislative process. Senator Dayton told the Cherry Hills meeting that “The voters should be offended” that the media would make such a claim. Senator Bramble gave one-sided examples where supposedly lobbyist gifts helped the legislative process and childishly asked the attendees to raise their hands if they disagreed with him.

This is where I really wonder. What are they thinking? Really. They can’t see the appearance of impropriety…even if we buy their claims of perfect integrity against all financial temptation? I wish I had been saving articles last year and knew the details of the proposal last legislative session to ban teachers from accepting Christmas gifts from students. I don’t think it ever got anywhere, but can’t they see the disconnect there?

Look at this scenario: I’m a teacher. Let’s suppose that I honestly am a longtime friend of two families. All of our families have honestly spent time as legitimate friends before now. Let’s say the other two families have children of the same age and I end up with both of them in my class at the junior high. The night before an end-of-level test, the other two families just happen to treat my family to a nice dinner followed by a Jazz game with luxury box seats. My family pays for none of this. The test is given the next day and both of those students just happen to get perfect scores.

It is course possible that their scores were legitimate and that these families always give me generous gifts in appreciation for my friendship. But would you believe that was the case? Can you not see how it appears? Would you blame other students and parents for being suspicious or angry if they found out about the situation? Would you perhaps propose rules regulating teacher/student relationships?

Can you see that the public and you are often viewing the issues from conflicting points of view? Is it at least possible that the public is right?