Mannkind Perspectives: An Open Meeting Violation is Being Referred to the County Attorney’s Office According to Senator Dayton

The East-West connector and development of the land south of Lone Peak High School continues to be most interesting. Was the meeting Senator Dayton expressed concern (my 15th “Issues and Information” meeting held at city hall on 5-Oct-2017) a violation of the Open Meeting Act? Good question. Let’s start with Senator Dayton’s email:

From: Margaret Dayton <mdayton@le.utah.gov>
Date: Friday, October 6, 2017 at 5:18 PM
…
Subject: USDC issues
Gentlemen ~ I have had a few calls today from Highland residents concerned about a meeting that was held at Highland City last night to discuss USDC land issues.
Apparently you were all there.
I have also been told that the mayor and 3 of the city council were there - so that indicates a majority of the city council was in attendance - and thus a quorum was present. Reports that have come to me indicate that not all the city council were aware of the mtg - and that the meeting was not posted on the Highland City website - thus violating the Open and Public Meetings law.
Open Meetings Act is defined “meeting means a convening of a public body with a quorum present to discuss, receive public comment about, or act upon a matter over which the Pubic Body has advisory power.”
Some of the citizens took copious notes - and sent them to me re discussion of selling all the USDC land, changing the master plan, reconfiguring the road plans, etc Apparently no motions were taken - but public input and discussion were certainly part of the meeting.
The recordings I received were not voice recordings, so I do cannot argue about the proceedings of the meeting.The violation of the open meetings act is apparently being referred to the County Attys office.
Those in violation of the open meetings act are not any of you - it would be the city council members and at the mayor - but the optics of layering all of you on top of that mtg is not good - so I wanted to let you know what I had heard.
Just a heads up -
Enjoy this glorious fall and the long weekend.
Margaret

There were indeed three Highland City council members at this meeting. However, what the senator perhaps did not realize was that:

This meeting was organized by me.
The meeting room was paid for by me.
The agenda was set by me.
The purpose of the meeting was to provide a forum for residents to interact with our state legislators on the issue of the East-West connector.
I used the same notification process I have used for my other meetings which includes: creating a Facebook event; inviting Facebook members who live in the Highland area; sharing the event with multiple Facebook Groups and Pages; sending an invite to those who signed up to be notified. I did do something extra this time and paid to boost the Facebook invite to residents in Alpine, Cedar Hills, and PG.
The elected officials who attended the meeting came of their own volition with the exception of Representative Mike Kennedy and Senator Dan Hemmert who were invited to discuss the steps that will be taken by the legislature with regard to approval of the East-West connector.
She need not worry about the notes she received being inaccurate as the meeting was recorded and posted. For those brave enough to watch a meeting some evidently believe violated the Open Meeting Act, here it is .

It is also interesting to note that the only previous “Issues and Information” meeting that I have held where three council members and the mayor were present was on May 26th 2016. That was promoted as “The East-West Connector and State Land, a Discussion with Senator Dayton." Click here to read my notes from the meeting (which includes an excellent summary by Tammy Hodson) and here to see the Facebook invite. Elected and state officials who attended that meeting include: State Auditor John Dougal, Senator Margaret Dayton, a state attorney whose name I don’t recall, Representative Mike Kennedy, Highland City Council members: Rod Mann, Brian Braithwaite, Dennis LeBaron, and Highland Mayor Mark Thompson. During this meeting many of the same topics discussed as were Thursday night. This includes:

The east-west connector road
Use of funds generated from developing the land
Potential configurations of land under development
State owned land and property tax revenues for the city

So why was May 2016 meeting not an Open Meeting act violation and the Oct 2017 meeting was? The truth is neither were. Those public officials who attended both meetings did so of there own volition (see chance meeting below in the public meeting act). Both agendas included no items that the city council would be voting on and the intent was for our representatives to inform residents about the East-West Connector and state lands as well as provide a forum where residents could ask questions and get answers.

So what’s next now? My understanding is that the state attorney’s office deals with Open Meeting Act violations so the county should forward the referral to the state attorney’s office. State Auditor John Dougal may get to weigh in (and probably should since he was in attendance). I will be happy to respond to any and all questions from state attorney’s office.

Elected officials who were in attendance include:

Dan Hemmert, State Senator
Mike Kennedy, State Representative
John Dougal, State Auditor
Mark Thompson, Highland Mayor
Gary Gygi. Cedar Hills Mayor
Sheldon Wimmer, Alpine Mayor
Rob Shelton, American Fork City Council
Jenney Rees, Cedar Hills City Council
Brian Braithwaite, Highland City Council
Dennis LeBaron, Highland City Council
Rod Mann, Highland City Council

Rather than this being an occasion where the “optics of layering all of you on top of that mtg is not good” I believe it was wonderful to see so many leaders being willing to engage with constituents on an issue that is important to them. Thank you to each of the leaders (elected officials and staff) for taking the time to be there and share your thoughts!

By the way this was another great “Issues and Information” meeting. Lots of questions were asked and answered. Representative Kennedy and Senator Hemmert were excellent. I asked Highland City Engineer Todd Trane to give and overview of how roads are designed and speed limits set – he did a great job. Bill Exeter, the state’s project manager for the development of the land, gave an ad-hoc overview of the road and land development plans. He gave a good overview of the purpose of the project he is working on and answered all questions. I had no idea he was coming but really appreciate his contribution to the meeting. Andrew Jackson, the executive director of MAG also came and provided a lot of valuable insights.

Below are the definitions from the Utah Public Meeting Act which is part of Utah State Code. I’ve highlighted a few relevant items:

Definitions
(6)

"Meeting" means the convening of a public body or a specified body, with a quorum present, including a workshop or an executive session, whether in person or by means of electronic communications, for the purpose of discussing, receiving comments from the public about, or acting upon a matter over which the public body or specific body has jurisdiction or advisory power.
"Meeting" does not mean:
1. a chance gathering or social gathering; or
2. a convening of the State Tax Commission to consider a confidential tax matter in accordance with Section 59-1-405.
"Meeting" does not mean the convening of a public body that has both legislative and executive responsibilities if:
1. no public funds are appropriated for expenditure during the time the public body is convened; and
2. the public body is convened solely for the discussion or implementation of administrative or operational matters:
  1. for which no formal action by the public body is required; or
  2. that would not come before the public body for discussion or action.

Criminal Penalty for Closed Meeting Violation

In addition to any other penalty under this chapter, a member of a public body who knowingly or intentionally violates or who knowingly or intentionally abets or advises a violation of any of the closed meeting provisions of this chapter is guilty of a class B misdemeanor.

* For those who listened to the whole meeting. You heard me say something that was incorrect near the end of the meeting. When asked if any one councilman could stop the road I said no. I also said that I didn’t believe that even a 3 / 2 vote could stop the road. What I should have said was that while a 3 / 2 vote could delay the road given the overwhelming need for the road that ratio would likely change after the following election.

Postscript

On October 10th the Highland city attorney drafted an opinion on the matter of the Issues and Information meeting being a violation of the Open Meeting Act. Note, I was not one of the people who requested that opinion and I am not sure who did.

Dear Mayor and Council:
I've been asked by several people to respond to some questions raised about Rod's Issues and Information meeting with Mike Kennedy regarding the connector road, and whether it needed to be publicly advertised, and whether having a quorum present required someone to leave.
Rod's event does not qualify as a public meeting under the law because it was not a "convening" of the city council. Specifically, the statute states "Convening means the calling together of a public body by a person authorized to do so...." Utah Code 52-4-103(3). As a council member, Rod is not authorized to convene a meeting of the City Council. However, if the Mayor had done so, it would need to be advertised because he is authorized to convene the "public body" to do business.
No public notice or advertising was needed because it was not a public meeting. Also, no one knew in advance whether others on the council would attend since they were invited (but not required) to attend.
The other issue is when several council members show up to a meeting like this as guests, did a quorum require someone to leave? No, because a quorum was never constituted because it was not a public meeting.
However, remember that the intent of the Open Meetings law is transparency. Therefore, if three members of the council show up and begin to debate each other and deliberate on the public's business, I can see how that would be a violation of the law -- not because the private event became "public", but because they engaged in the public's business outside of a public meeting (see the difference).
Please let me know if you have any questions.
Best wishes,
Tim [Merrill]
HANSEN WRIGHT ATTORNEYS
233 S. Pleasant Grove Blvd., Suite 202
Pleasant Grove, Utah 84062
Telephone: (801) 443-2380
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