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Leavitt's gun ban illegal, legislative lawyers say

What happens if the administrative policies of the executive branch are thought to violate the laws passed by legislative branch?

Utahns might find out. Legislative lawyers say Gov. Mike Leavitt's decision to forbid state employees from carrying firearms in state buildings, state cars or while on state business is contrary to Utah law.

A similary rule by the University of Utah administration is also illegal, the lawyers said.

The Governor's Office response to the legislative lawyers' opinion was noncommittal.

"At this point, all we have is two attorney's disagreeing, which isn't all that uncommon," said Vicki Varela, Leavitt's deputy chief of staff.

She said the governor's lawyer, Gary Doxey, explained the administration's rational behind the rule at a legislative meeting in December. That committee did nothing with the information.

"We interpreted that to be at least a nod to the reasoning of our general counsel," Varela said.

The opinion issued Monday by legislative general counsel M. Gay Teylor to a budget subcommittee, she said, is "just a different analysis (of the law) from a different lawyer."

The University of Utah's general counsel, John Morris, said he hadn't read Taylor's opinion but agreed with Varela's assessment that nothing is concrete right now.

"Typically, what you do when you disagree is go to court," he said. "This is not just a University of Utah issue."

The opinion from the legislative attorneys came in response to a letter from the Executive Offices, Criminal Justice and Legislature Ap;propriations Subcommittee. It was asked for by co-chairman of the committee, Sen. Mike Waddoups, R-Taylorsville, who sponsored the legislation expanding the state's concealed weapons laws three years ago.

After receiving the opinion, Waddoups told the subcommittee members he and House co-chairman, Rep. Blake Chard, R-Layton, would forard the opinion to legislative leadership.

Asked what the Legislature would do with the opinion, Waddoups said he expected it might affect the debate of four bills dealing with concealed weapons currently before lawmakers.

Asked if there was anything the Legislature could do about the rules, he said, "I'm sure that we can. I'm not sure we've explored what all the options are as of yet."

Waddoups and other committee members questioned both the Attorney General's Office and the Governor's Office about the policies and held up both budgets until their questions were addressed.

They pased both budgets on Friday without debate.

Taylors' opinion said both rules were contrary to Utah law as the Legislature didn't delegate authority to either to regulate firearms.

"The Utah Constitution grants power only to the Legislature to define the lawful use of arms," the letter said. "If there are any changes to be made in the policies pertaining to the lawful use of arms, those decisions rest squarely with the Legislature."

The Division of Human Resource Management instituted the rule in 1995 at Leavitt's request. In October 1997 the U. adopted a similar rule.

Taylor said school officials can make rules governing weapons but any action by the Legislature takes precedent.

Doxey told the committee two weeks ago that he doesn't believe the rule conflicts with state law. He said employers are required by OSHA to provide safe work invironments ad that banning guns was done to make state workplaces safer.

Also, he said state law doesn't give a gun owner with a concealed-weapons permit the right to carry a gun "any more broadly," just the right to conceal that weapon without "being a criminal."

Morris said the U. would "obviously comply with the law." Since there is disagreement over what's legal, he said they may look to the Attorney General's Office for a formal opinion or the Utah Supreme Court.

He said they'd also obey if the Legislature decided to make the law more explicit in stating colleges and universities must allow concealed weapons on campus with a valid permit.

When the U. drafted its rule banning guns, officials talked informally with the Utah Attorney General's Office.

"We have consulted with then, and the advice that came back through the ordinary channels was in support of our rule," Morris said.

Attorney General Jan Graham told Waddoups' committee that she couldn't give the group a legal opinion because state law outlines who can ask for a formal opinion and how. A legislative subcommittee cannot get a legal opinion directly from that office.