PROVO — In an emergency meeting that the Utah County attorney warned could be disputed as being invalid, the Utah County Commission passed a resolution early Thursday morning to let voters weigh in on a change of form of government.
The vote came despite warnings from the Utah County Attorney David Leavitt that the resolution could be invalid or challenged in court, after a surprise move from Utah County Commissioner Bill Lee and four others signed onto a counter-petition earlier this month that effectively delayed the process.
"I don’t care what form of government this is, but we have to follow the process," Leavitt told the commissioners. "And we have to follow a process that is bedrock to American culture — and that is we do not do things in back rooms, we not do things at 7:45 (a.m.) the day after a holiday. We do things in the public eye with public comment, and it would be my strong recommendation to all three of you commissioners to not adopt your finding."
And yet, two out of three Utah County Commissioners — Tanner Ainge and Nathan Ivie — voted to pass a resolution sending the question to the Nov. 5 ballot this year, but with caveats indicating that if a court of law or state elections officials determined it wouldn't be allowed, then it would be pushed to the next regularly scheduled general election, perhaps in 2020.
Additionally, the resolution welcomes the county attorney to review the legality of the ballot question.
The move leaves Utah County tangled in a dispute over whether the ballot question will stand up to a legal challenge and if voters will actually be able to weigh in on a potential change to a mayor-council form of government.
Ivie has long been a supporter of changing Utah County's three-member commission into a mayor-council structure, which he argues would give the growing county better representation in the future. Ainge has said he would support the recommendation from the independent study committee, which ultimately recommended the mayor-council form.
State law allows two pathways to ask voters to decide on a change of government — either by petition or through the county commission. Earlier this year, a petition was filed to force the question to this year's ballot — prompting Utah County leaders to form a committee to study a form of governance change and give recommendations for the county commission to vote on.
After the committee finalized its recommendations to ask voters to change to a mayor-council form of government and as the Utah County Commission neared a vote (with Ivie and Ainge already indicating they would approve the ballot question) Lee, who was the lone commissioner against the question, threw a curveball.
Lee and four other signees submitted their own petition to change Utah County's government to a five-person commission. That petition effectively blocked the commission's vote because state law prohibits the commission from taking action until the petition process is over.
What led up to Thursday morning's "emergency meeting," Ainge said, was when commissioners received an email noting one of the petition's signees, Eagle Mountain Mayor Tom Westmoreland, withdrew his signature — throwing the validity of the counter-petition into question.
"I was not aware the petition would block other efforts to move forward in the pursuit of the most fitting style of government for the county," Westmoreland's email said. "I saw the petition only as another opportunity to engage the public. It is against my intentions and against my nature to block public discussion or interrupt established processes. This is especially so in matters relating to the voice of the people."
And yet, the county commission also received another email from another Utah County resident who wished to sign on to the petition, Ainge said.
"I don't know how to rule on this," Ainge said, but also said Thursday's emergency meeting was called because "if indeed there is a window right now, we don't want someone else to go and file a petition and block us again."
Additionally, Ainge said the petition may also be invalid because it may have been filed in "bad faith," he said, citing indications it was filed with the intent to delay the process, which is against state law. However, the state definition of "bad faith" is vague, leaving the issue open to legal debate.
Thursday's meeting at times grew tense when the county attorney clashed with commissioners over the resolution, arguing the commission didn't have the authority to rule on the validity of the petition, but rather that was a decision that had to be made by Utah County Clerk Amelia Powers.
"The effect of making such a finding is nothing more than a nonbinding resolution by the majority of the commission saying 'This is what we think should be,'" Leavitt said, tapping his hand on the table for emphasis as he spoke. "It will have no effect on the county clerk. It will have no effect of putting it on the ballot. It will have no effect on eliminating the petition. It will do nothing but further divide an already divided county commission."
But Rep. Brady Brammer, R-Alpine, who is also an attorney, challenged Leavitt's assertions during the public comment period of Thursday's meeting. He said the clerk has the power to file petitions, but the commission decides what to do with petitions.
"You make the call, commissioners," Brammer said.
But Leavitt warned the resolution could open the door to more legal sparring and maneuvers that could further complicate the process.
"If you take a shot to do this, there are five petitioners who will take a corresponding shot," the county attorney said.
Another state lawmaker, Sen. Jake Anderegg, R-Lehi, sought to defuse the situation and asked commissioners to sort out their differences out of court.
"Everyone take a deep breath," he said. "Let's talk through things."
Anderegg indicated a lawsuit could be forthcoming, urging the commission to "resist" anything that could lead to litigation, and rather work together to find an easier solution.
"I don't know necessarily that we have, legally, the recourses available under state statute to get this put on the ballot," Anderegg said. "I'm not an attorney, but that's a plain reading of it … I don't see how that's possible short of this turning into a big lawsuit I think, ultimately, doesn't have merit, quite frankly."
Given the clashing legal interpretations, Ainge said he was hesitant to proceed with the resolution, and yet "if there is a window, now is the time to take it." Ivie thanked Leavitt for his opinion, but also told him "we have other legal opinions, that and public comments, that I agree with."
So Ivie and Ainge outvoted Lee and proceeded with the resolution.
What happens next? That's unclear.
The county clerk, Powers, who was on maternity leave Thursday and did not attend the meeting, told the Deseret News later in the day her office will need to review the language of the resolution before deciding what to do with the petition and whether to print the question on the ballot.
Ultimately, however, Powers said she'll likely rely on the advice of the county attorney, especially if state law is nonexistent or too vague on this particular issue.
"At the end of the day, I don't have a duty to one side or the other on this," she said. "I have a duty to the law and the citizens of Utah County, and my goal is to follow the law as best as I can and do what the citizens of Utah County elected me to do."