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2 views, one job — mayor

Legal opinions diverge on Anderson’s powers

SHARE 2 views, one job — mayor

The Salt Lake City Council and Mayor Rocky Anderson had before them Thursday night a pair of legal opinions on the mayor's role that, at first look, seem to have been written by boxers in opposite corners.

On one side was the opinion, written by the city attorney, that limits the mayor's ability to write executive orders if they intrude into the council's legislative function.

On the other side was a legal opinion, written by a former legal colleague of the mayor's, which says the opposite: The mayor can write executive orders that administer and exercise control over all city departments.

In the next few weeks, the council and the mayor will have the formidable task of analyzing and debating the conflicting opinions to determine which one is right. And the council will form a special subcommittee to do so.

The council will search for "areas of agreement," Vice Chairman Roger Thompson promised. "We'll try to find some common ground."

Thompson said he's optimistic about ironing out the differences. "We don't want people to perceive that our city government is at loggerheads," he said. "We're having some adjustment pains."

The issue emerged in April when Anderson was just four months into his term and signed three executive orders that clearly circumvented council ordinances, councilman Dave Buhler said.

Soon after the mayor issued the orders in April, Buhler and the council asked for Salt Lake City

attorney Roger Cutler's legal opinion of them.

According to Cutler, in an opinion released to the public by the council in a 6-1 vote Thursday night, the mayor's function is to execute the laws made by the City Council.

"He may do so by issuing written executive directives or orders, provided they do not intrude into, supersede or supplant the policy-setting or other roles assigned to the legislative branch of city government (the City Council)," Cutler wrote.

Cutler's document, given to the council June 14, "makes it clear that the council's role is to set policy," Buhler said. "I hope the mayor recognizes that the council has this role. I hope he's rethinking that he can't act alone."

Anderson's April orders encouraged the hiring of a diverse city work force; forbade all city employees to accept gifts of any value; and prohibited discrimination against city workers and job applicants based on sexual orientation.

In writing these rules, the mayor overstepped his authority, according to Cutler's report. Anderson also annoyed council members who'd already worked on ordinances regarding those three issues.

The orders are "legislative in character and establish public policy" and fall outside the mayor's job description, Cutler's opinion said.

Anderson isn't inclined to take his orders back, and now he has the other legal report saying they're well within his authority as mayor.

Earlier this week Anderson asked his former colleague, Salt Lake attorney Peggy Tomsic, to prepare a second analysis of his executive orders. And as soon as the council voted to release Cutler's document, Anderson handed reporters copies of Tomsic's opinion, apparently finished in three days.

"It doesn't take very long when you're right," the mayor said.

The second opinion is the opposite of the first. "You have the explicit and implicit authority to issue the executive orders as a matter of Utah statutory law," Tomsic wrote, citing Utah code granting mayors the power of "administering and exercising control over all departments of the city."

Tomsic provided the seven-page second opinion free of charge — "she did it for the city," Anderson said. When councilman Buhler heard that, he asked whether the report violates the mayor's executive order banning all gifts to city workers. "Is that a gift? The question needs to be looked at," he said.

It's not a gift to me personally, Anderson said, adding that Buhler's query "shows that lawyers can't win." If Tomsic had been paid for her work, there would have been outcry over the spending of taxpayers' money, the mayor said. He estimated that her fee would have been more than $10,000 "at normal billing rates."

Tom Rogan was the only council member Thursday to vote against making Cutler's opinion public. The council and the mayor should discuss it among themselves, and "I don't mean to denigrate it, but this is Roger (Cutler's) opinion . . . a tool for us to use," Rogan said.

He hoped for a discussion that would include a second opinion from another attorney — the one engaged by Anderson. Releasing these reports to the public could start a case of publicly dueling lawyers, Rogan said.

He urged the council to "act, not react" to the opinions and work out their differences inside the council chambers, rather than in the news media.

E-MAIL: durbani@desnews.com