Are inland port subcommittees exempt from Utah’s public meetings laws? A.G.’s view has changed over years

The article originally appeared in The Desert News. Read it in its entirety here.

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.

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.

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.

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?”

The article originally appeared in The Desert News. Read it in its entirety here.

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