Last November, the West Bountiful City Council voted by secret ballot to replace a fellow councilman who had resigned.
In May of this year, Salt Lake County commissioners met privately with county attorneys to discuss staging events at the soon-to-be-completed Delta Center.In June, the American Fork City Council convened a closed meeting to discuss "sensitive areas" of its 1991-92 budget.
And just last month, Springdale's mayor approved building permits outside of a public meeting.
These are just a few recent instances in which public bodies and officials appear to have violated Utah's Open and Public Meetings Act.
But none of the officials or governing bodies will likely suffer any consequences of violating the law.
Why?
For one thing, the 14-year-old open meetings act is difficult to enforce and provides no penalty.
Complicating enforcement is the fact that the law is not well-understood, portions of it are vague, and, as a result, many public officials don't take it too seriously.
A random Deseret News survey of 10 elected officials in three counties found that none could correctly cite all the sanctioned reasons for closed meetings, and two officials cited reasons that are not allowed. Only half knew that a vote is required before a closed meeting can be convened.
A study of the city council minutes of nine randomly selected cities revealed that only one city followed the letter of the open meetings act.
"Public officials should know it," said assistant attorney general Rick Wyss. "There's really not a lot to the open meetings law."
Wyss said he receives about four complaints a week regarding the open meetings act. Most come from the public - citizens interested in seeing that their elected officials keep the public's business in the public's eye.
Though most of the complaints are the result of misunderstanding on the part of the public, some reveal blatant violations on the part of the public bodies, Wyss said.
The complaints and violations have prompted the attorney general's office to revise a pamphlet of guidelines on the open meetings law. That revision should be completed later this fall.
The complaints have also prompted some officials to suggest that the law go back to the Legislature for changes.
"Four complaints a week indicate a need for possible revision," said Wyss, one of two assistant attorneys general assigned to enforcing the open meetings act.
The other is John Clark, who agreed that the act could stand some legislative revision.
"There are a couple of areas we want the Legislature to take a look at."
Enforcement: dull teeth
Perhaps the biggest weakness of the act is its lack of meaningful or practical enforcement, said Kate Lahey, a media attorney and University of Utah law professor.
Suppose, for example, that a city council approved an ordinance in a closed meeting. The only remedy provided by the act, which prohibits public bodies from taking action in closed meetings, is that the ordinance would be voided.
But the council would only have to call an open meeting to ratify what had already been worked out in the closed meeting, thus leaving the public deprived of knowing what deliberations occurred in the closed meeting.
"(The act) may not be toothless but it doesn't have very sharp teeth," said Lahey.
However, she said, statutes defining "official misconduct" or "malfeasance in office" - both of which provide possible misdemeanor charges - could be invoked to punish intentional violations of the open meetings act.
But proving intent would be difficult, said Wyss.
Besides, added Clark, "We don't have the resources to do full-blown investigations." Currently, Clark's office only offers advice and an occasional exhortation to offenders.
Lahey said the attorney general's and county attorneys' offices should devote more money and effort to enforcing the act.
"To my knowledge, (state attorneys) have never brought an action in any court to enforce (the open meetings act)."
She also suggested the act be amended to provide mandatory payment of attorneys' fees to civil plaintiffs who successfully challenge a public body's violation of the act. That would provide at least some sort of a monetary penalty for breaking the law, she said.
Litigation: What's that?
An oft-cited reason for convening a closed meeting is "litigation."
The law permits closure for "strategy sessions with respect to . . . litigation" but does not define litigation.
Does it mean a lawsuit that has already been filed or can it also mean one that is threatened? Does the litigation have to be in a court of law, or can a petition to a quasi-judicial, administrative agency be considered "litigation?"
Another question is "attorney-client" privilege.
When the Salt Lake County Commission met with its attorneys privately to discuss issues not allowed under the open meetings act, deputy Salt Lake County attorney Gavin Anderson cited the attorney-client privilege, which is part of the Utah State Bar's Rules of Professional Conduct but does not appear in any state statute.
Invoking such a privilege, however, would allow a public body to close a meeting any time it had a legal question, and that would be inappropriate, said Lahey.
The intent of the open meetings act is to allow closure for "strategy sessions" only. If the public body is discussing the pros and cons of litigation - such as whether it's worth spending taxpayers' money to defend the abortion law, for example - the public should be invited.
Wyss said his office tends to agree.
"I don't think we're willing to say that a public attorney has the same attorney-client privilege that a private attorney does."
Meetings should be closed only when the discussion would put the public body at a "litigious disadvantage," Wyss said.
Tapes: A "cleansing effect?"
Clark suggested the open meetings act be amended to require that closed meetings be tape recorded.
Then, if someone challenged the legality of the closed meeting, a judge could listen to the tape in camera and make a ruling.
Clark said he believes the tape-recording requirement would cut down on the number of closed meetings and prevent officials "from discussing matters they shouldn't.
"It would have a cleansing effect. It would also remove a lot of suspicions."
An open meetings task force?
Two years ago, a legislative task force aggressively revamped the state's laws on government records, resulting in the Government Records Access and Management Act of 1991.
Wyss said a task force should look at the problems and questions surrounding open meetings as well.
"As important as the open meetings act is, it ought to go through the same scrutiny."
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Sunshine Law
Here's a brief summary of the Open and Public Meetings Act, also known as the "Sunshine Law."
Intent: that a public body's actions and deliberations are conducted Openly. - Meetings must be open to the public unless closed as provided by the act.
- Notice of the meetings must be posted 24 hours in advance.
- The act does not require any meeting to be closed.
- Meetings may be closed for six reasons:
1. Discussing the character, professional competence or physical or mental health of an individual.
2. Strategy sessions with respect to collective bargaining.
3. Strategy sessions with respect to litigation.
4. Strategy sessions with respect to the purchase of real property.
5. Discussion of the deployment of security measures.
6. Investigative proceedings regarding allegations of criminal misconduct.
- Before convening in a closed meeting, the public body must vote on it in an open meeting. The vote must be an affirmative two-thirds majority.
- The public body cannot take action in a closed meeting.