SALT LAKE CITY — In order to keep the public out of meetings that will help shape the state’s largest-ever economic project, Rep. Francis Gibson proposed that the nascent Inland Port Authority “just follow the state law” rather than take Chairman Derek Miller’s suggestion to go “above and beyond.”

Gibson’s motion passed easily Wednesday. But the state’s public meetings law may not be as straightforward as he made it sound.

At issue are three subcommittees established in July by the new state board, which has land use and tax increment authority on 25 square miles of undeveloped land at the northwest corner of Utah’s capital.

One subcommittee is searching for an executive director, one is drafting tax increment policy and another is creating a business plan.

None of the subcommittees contain more than five members, so they don’t constitute a majority or “quorum” of the 11-member port authority board. And because subcommittees don’t have final decision-making authority (the full board will ultimately vote on their recommendations), Christopher Pieper, assistant Utah attorney general, has told board members that the smaller groups can legally operate behind closed doors.

Gov. Gary R. Herbert is joined by legislative and local elected leaders as he discusses consensus recommendations for the Utah Inland Port from the Gold Room at the Capitol in Salt Lake City on Gov. Gary R. Herbert is joined by legislative and local elect
Gov. Gary R. Herbert is joined by legislative and local elected leaders as he discusses consensus recommendations for the Utah Inland Port from the Gold Room at the Capitol in Salt Lake City on Gov. Gary R. Herbert is joined by legislative and local elected leaders as he discusses consensus recommendations for the Utah Inland Port from the Gold Room at the Capitol in Salt Lake City on Monday, July 16, 2018. | Steve Griffin, Deseret News

But that’s not so, according to Salt Lake City attorney David Reymann, who counts open meetings among his specialties.

The short version of Reymann’s argument is this: The subcommittees themselves count as public bodies.

Under that interpretation, a meeting is public when it has a majority of the subcommittee, not the whole parent board. So, three out of five members would do the trick.

“The open meetings act defines public bodies as including advisory committees and advisory boards,” he said. “The reason is pretty obvious: because otherwise you could have all of the work of a full board being done behind closed doors, and recommendations coming forward to the full board that have already been decided in private. … It would completely subvert the act.”

Reymann said the true test is whether a subcommittee is doing work that the full board would be doing if it didn’t exist. If the answer is yes, he said, the subcommittees must comply with the state law — to include posting notices and agendas, and keeping records of their discussions.

But whether the inland port subcommittees qualify as “advisory boards” or “public groups” might be open to a judge’s interpretation, and Reymann isn’t aware of any case law in Utah. Open meetings lawsuits rarely rise to the level of constitutional interpretation, he said, because they can usually be easily solved by re-opening meetings and voiding any unlawful actions.

The best support for Reymann’s interpretation may come, ironically, from the Utah Attorney General’s Office, which declined comment for this article because, a spokesperson said, it is prohibited from providing legal advice and has been directed to refer questions to the board.

In May 1983, six years after the 1977 legislation that created Utah’s open meetings law, then-Attorney General David L. Wilkinson published a manual on open meetings that listed some frequently asked questions about its meaning and intent.

On the subject of advisory bodies, the office wrote: “The function of making advisory recommendations necessarily involves weighing alternative considerations which would constitute a decision-making process, even though final decisions with respect thereto may rest with other persons.”

In response to the next question, “Are committees or subcommittees of a ‘public body’ subject to the Act?” the A.G. advised: “Yes.”

“If such committee or subcommittee consists of two or more persons and a quorum thereof gathers to deliberate or make a decision regarding public business, it would be subject to the Act.”

But even critics of the board’s decision have yet to raise any legal objections, and Gibson didn’t express much concern when asked about the law’s true meaning on Thursday. The biggest mistake the board made, he said, was not calling them by a less formal-sounding name, like “work groups.”

“Give me a sentence, and I’ll show you three attorneys who interpret it three different ways,” he said, stressing that he is committed to a transparent process and that the subcommittee recommendations will result in a public discussion by the full board.

FILE - A section of land looking southeast at 7200 West and I-80 that is part of the proposed Utah Inland Port in Salt Lake City on Monday, July 16, 2018.
A section of land looking southeast at 7200 West and I-80 that is part of the proposed Utah Inland Port in Salt Lake City on Monday, July 16, 2018. Gov. Gary Herbert joined legislative and local elected leaders to discuss consensus recommendations for the Utah Inland Port during press conference at the Capitol in Salt Lake City on Monday, July 16, 2018. | James Wooldridge, Deseret News

Sen. Gregg Buxton, R-Roy, worried aloud at Wednesday’s meeting that the port authority might set a new precedent if it opened its subcommittee meetings, and fellow board member Nicole Cottle — an attorney and assistant city manager for West Valley City — agreed.

“The lawyer in me says, ‘OK, that has consequences,’” she said.

Miller, who joined Salt Lake City Economic Development Director Lara Fritts in casting dissenting votes, said by text message Thursday that he couldn’t respond to a legal analysis that he hasn’t seen.

“If there are those … who have a legal opinion they believe is relevant to the business of the port authority board then I encourage them to share that opinion with the Attorney General’s Office or the board,” he wrote.

Like Miller, state Minority Leader Brian King is an attorney, and was measured when talking about the possibility that the subcommittees should be open under the letter of Utah’s law.

But King, who issued a statement Thursday urging the port authority to reconsider its decision, said the authority clearly violated the spirit of the law.

The motivation probably isn’t nefarious, he said. It’s natural for elected officials to want to talk frankly ahead of major decisions, he said, and to do so without the public recording every spitballed idea.

“You want to have a frank discussion, you want to be able to look in somebody’s eyes and say, ‘Do you really think this is the issue?’ And they say, ‘Not really, here’s the problem.’” he said. “I think we all get it. But one of the things that comes with the territory, in terms of being an elected official, is to think more carefully about what you’re saying and what you’re doing. It creates a better process by which important decisions are made.”

Gov. Gary Herbert told a Deseret News reporter Thursday that the board “ought to err on the side of more openness and transparency” though he felt it was within its rights to close the subcommittees.

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Board members were also presented Wednesday with a letter signed by 160 groups and individuals who demanded open subcommittee meetings, including Salt Lake City Mayor Jackie Biskupski, who has also questioned whether the state had the constitutional right to seize control of her city’s land in the first place.

Reymann’s analysis sounded like a “valid point” to Chase Thomas, executive director of the progressive nonprofit Alliance for a Better Utah, which has called on lawmakers to “re-examine the Open Meetings Law in light of this unfortunate decision.”

King agreed Friday that the law might be worthy of a second look.

Said Thomas: “Maybe this is showing that they need to make a clearer definition. Do subcommittees actually count as a public body or not?”

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