The Salt Lake City attorney has some holiday cheer for Mayor Deedee Corradini: The City Council can investigate her, but it can't remove her from office.
In a 30-page report released Friday, city attorney Roger Cutler told the council it has the authority to investigate Corradini's solicitation and acceptance of $201,000, but it can only turn the results of that investigation over to the district attorney or a grand jury."Although it is not totally clear, it is the best judgment of this office that the council does not have the power or authority to hold hearings to remove the elected mayor, under the ethics act (Utah Municipal Officers' and Employees' Ethics Act)," the report says. "The function of filing and prosecuting charges regarding removal is exclusively vested in the sound discretion of the district attorney or a grand jury."
The City Council has the authority to hire its own attorney or expert to investigate Corradini, but that could prove costly, Cutler warned. Corradini would probably have the right to have the city pay for her attorney as well as the one hired by the City Council.
Corradini has already hired criminal attorney Ron Yengich, one of the most expensive criminal attorneys in the state. Salt Lake County in 1983 had to pay Yengich $75,000 for his defense of former county auditor Art Monson against charges that Monson had violated the state ethics act.
Like costs for everything else, Yengich's fees have undoubtedly soared in the past 13 years. If the City Council hires its own lawyer but refuses to pay for Corradini's, she can sue to have her fees paid, the report says.
The standard for removing a mayor from office is a tough one. Corradini could only be removed from office if she had knowingly committed a serious crime. "Such violation must be of such seriousness to constitute a `high crime or misdemeanor' or malfeasance in office," Cutler wrote.
A taxpayer, district attorney, attorney general or grand jury can prompt the prosecution of an elected official. But not the City Council.
Only the prosecutor can decide whether to go forward with prosecution at that point. The City Council has no voice in that decision.
If the allegations go to a criminal trial or to a grand jury, the official can be removed from office by the majority vote of a jury. A unanimous vote is not required, Cutler wrote.
The state ethics law that allows the "governing body" of a city to remove a city official for violating the ethics acts is "poorly crafted, confusing and inconsistent" and probably was never meant to be applied to a mayor's actions, Cutler concluded after reviewing the law.
The law says that complaints about an official should be made tothe mayor, investigated by the mayor, reviewed in a hearing before the mayor and then reported to the "governing body."
It's unclear who the "governing body" is, Cutler wrote.
It doesn't make sense to have the "governing body" mean the City Council when the investigation and hearing is done by the mayor, he concluded. But it would be useless for the "governing body" to mean the mayor in this case, "because the mayor would then decide her own removal," Cutler wrote.
Because it is "at best problematical" whether the council can try to remove Corradini from office, "any such attempt will, with certainty, be challenged in court and will be very divisive and expensive," Cutler advised.
Besides, people would wonder about the motives of City Council members who may want to step into Corradini's shoes, he warned. That issue alone raises the question whether the City Council could be impartial enough to judge the mayor.
Roger Cutler's report
Some of the questions Roger Cutler's report answers:
Can the City Council investigate Deedee Corradini's solicitation and acceptance of gifts?
As part of that investigation, does the council have the power to issue and enforce investigative subpoenas?
Can the council hire independent counsel or other experts to assist in its investigation?
Does the council have the authority to file for judicial removal of an elected official or seek to have a grand jury impaneled.
Does the council have the power to instigate criminal proceedings against a city official?
May the council direct the city attorney to investigate or prosecute a city official?
Can the council remove an elected official from office?
Are there processes, other than criminal and judicial removal, by which the ethical and legal conduct of a city executive-level official may be investigated?
Negotiating disclosures and solutions directly with the mayor is the only other one.