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Rocky’s clout in spotlight

S.L. Council set to discuss legal opinion on executive powers

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At a special meeting Thursday night, the Salt Lake City Council will exchange one Rocky issue for another.

The members had planned to discuss the proposed Grand Salt Lake Mall. But they've bumped that to next week to make time for a huddle over a legal opinion written by City Attorney Roger Cutler.

At 5:30 p.m., the council was to consider whether to publicly reveal that opinion, which clarifies how much power Mayor Rocky Anderson can wield.

During the first week of April, the mayor summarily signed three executive orders: Salt Lake City must not discriminate against employees or job applicants based on sexual orientation; the city must strive for diversity in hiring; and no city employee may accept a gift of any value, be it a round of golf, a Coke or a trip to Las Vegas.

Can the mayor do this by himself? The council wondered. Some members thought Anderson had acted outside his authority, so on April 10 they sought Cutler's legal advice. We need clarification of which powers belong to which branch of city government, the council told their attorney.

"I am not disagreeing with the content" of the three executive orders, said Councilman Dave Buhler. "I agree with many of the goals. It's more a question of what are (Anderson's) powers to make law on his own."

Now Cutler's opinion has been delivered to both council and mayor — and it appears that Anderson isn't pleased. This week he hired two of his former legal colleagues, Peggy Tomsic and Dan Berman, to write a second opinion on his executive powers. Before taking office the mayor worked with them at their Salt Lake law firm, Berman Gaufin Tomsic & Savage.

The mayor said the second opinion will be provided pro bono — for free — and will be written "primarily by Tomsic. I expect she'll do a scholarly and complete job." Anderson expects to present his attorney's report to the council but said he didn't know whether it would become public information.

Buhler finds Anderson's move "curious. I hope he's not out shopping to get the answer he wants." The city has a perfectly good attorney in Cutler, and we all have to abide by the law as he interprets it, Buhler said.

Cutler says his opinion, three months in the writing, is based on case law and philosophical issues and makes clear the differences between mayoral authority and the City Council's legislative powers.

The mayor has no authority to usurp the policymaking function of the council, Cutler said. "The question is: At what point does (an executive order) become policymaking?" he said.

Until now Cutler's opinion has been known only to the council and mayor; it's protected by attorney-client privilege. If it says that Anderson overstepped his authority, and the council decides Thursday night to make that opinion public, Cutler said the council could let the three executive orders stand but use the opinion to limit future orders, or file a lawsuit against the mayor. "Or more likely they'll have a discussion," Cutler said.

Councilman Tom Rogan is the optimist in this process. He said the legal opinion presents "an opportunity to improve the working relationship between the council and the mayor. It's an opportunity to collaborate . . . . I hope we approach it that way."

Rogan said he hopes Tomsic and Berman's second opinion is delivered by next week, as he has heard it will be "My preference would be to consider the two opinions together, to sit down . . . and come up with a joint statement. I really think that can be done."

Council Vice Chairman Roger Thompson said any such cooperation would be an improvement. When asked how he thought Cutler's opinion will affect the mayor-council relationship, he said, "There isn't one. That's the point. Rocky does what he wants."

Thompson gave two examples.

"The council spent a lot of time on the ordinance regarding gifts," he said, and it adopted a law forbidding city workers' acceptance of anything valued at more than $50. "Then (Anderson) came into the office, and in an afternoon, without consulting anyone," wrote an executive order overriding that ordinance.

The council also adopted an ordinance requiring that hiring decisions be based only on work-related criteria, not on interpersonal relationships. But "no, that wasn't good enough" for the mayor, Thompson said. Anderson's executive order "made a specific category" prohibiting discrimination against homosexuals.

Thompson didn't think a Salt Lake mayor had ever issued orders that had such "broad policy implications." Usually such orders are reserved for times of disaster, he said. For example, when floodwaters came down State Street in 1983 and a tornado hit downtown in 1999, Mayors Ted Wilson and Deedee Corradini signed orders in attempts to keep the city center clear of traffic.

As far as Thompson knows, no natural calamity precipitated Anderson's orders in April.

Both the mayor and council say they hope the two legal opinions from Cutler and Tomsic won't create an even wider rift between the two sides. Most of the council members have "expressed the desire to work collaboratively," Anderson said.

Thompson said he pulled the Grand Salt Lake Mall discussion from Thursday night's agenda because it had originally been scheduled for the council's August meetings. "I didn't want it perceived that we were trying to sneak something by or have a quick and dirty vote."

One hot button is enough for one night, he said, so the council will discuss the mall next Thursday, Aug. 3, and may vote on it Aug. 8. Thompson didn't know whether time would be allotted for public comment specifically on the huge proposed west-side project, but he was sure that people would use the general citizen-comments time to air their mall views.

Like Thompson, Buhler said he's eager to see the mayoral-powers issue settled. "It's important for us all to be on the same sheet as to who has authority to do what . . .. It's not in the interests of Salt Lake to have council and mayor at odds," he said.

E-MAIL: durbani@desnews.com