Mr. Scott Sweat
805 West 100 South
Wasatch County Attorney
Heber City, Utah 84032
Thanks for your time and consideration on January 7, 2014. As you can imagine, there is no comfort with your interpretation as to who your clients really are.
It is still hard to get it out of one’s mind, that as an elected official, one who was elected by the whole County and whose taxes support you and your office, that somewhere the citizens should fit into the larger picture of being clients. Be-as-it-may, there is great concern over conflicts of interest that many believe have and continue to happen.
Such actions place the citizens generally at a major disadvantage and keeps them out of a process that all agree should be more open, transparent and fair.
Currently, major votes have been taken by the Wasatch Council, that seem to violate not only the letter of the law regarding conflicts but the spirit of the law as well.
It would seem citizens are seeing a growing mentality that allows one to ignore laws that are not liked and therefore they get to be treated as if they never existed. Such a thought process, has a tendency to allow decisions and discussions to take place that violate all the Codes if desired, that elected and appointed officials swore to uphold and protect.
As you know, some have spent over 45 years involved in the enforcement of laws and codes, and still continue to believe they were all put in place for a reason.
The following are presented for your consideration.
The Term “conflict of interest” seems to change meanings based on who desires to make the interpretation.
In recent years not only has the State of Utah Legislature make some remarkable changes related to the interpretation of “conflict of interest”, but the Supreme Court of the State of Utah has added some clarity to this discussion when they required UTA to make changes to their personnel policy.
In January 2000, Wasatch County participated in and authorized a change in the form of government. It was determined by those who initiated the change and the citizens who voted for the change, they wanted certain aspects of how County Government should react to citizens generally woven into the laws as well as making the separation of powers more distinct and workable. In this change of government, a County Manager was added to have certain appointive powers and the county council became the legislative body.
In recent years however, certain ones have been elected, who believe the power of the council can supersede the law on governance at anytime for any reason.
Not only do they want to have legislative power in one hand, but also the appointive power in the other hand. This joined power has been wielded by some for the benefit of family and friends. Such power has defined and supported a statement made by a member of the planning commission of the county a number of years ago, when he said: “If we can not help our friends and family, there is no use in serving”. Such attitudes have made their way to the County Council and in the last few years, citizens have seen a flood of nepotism and conflicts of interest arise, but when pointed out, these criticisms have been dismissed or justified under the guise that no money exchanged hands.
Conflicts of Interest should be a real concern, since they lead to other things but they can be corrected with ease, if the law is followed.
A number of years ago, the Washington State Supreme Court made the following observation in one of their cases;
“Members of commissions with the role of conducting fair and impartial fact-finding hearings must, as far as practicable, be open-minded, objective, impartial, free of entangling influences and capable of hearing the weak voices as well as the strong. The importance of the appearance of fairness has resulted in the recognition that it is necessary only to show an interest which might have influenced a member of the commission and not that it actually so affected him”
Recently, a number of votes in Wasatch County were taken by the County Council to approve budgets, provide for increases in certain employees pay and otherwise increase the financial remuneration of some through the accompanying benefits, sick pay and personal leave where it is believed “conflicts of interest” did exist.
There are those who believe that such action is a normal business routine and can be justified with the statement; “we have always done it this way”.
Those who support such activity it seems have failed to read the law as it pertains to the county and accepted under the recent change of government.
The following comes from the rules, regulations and laws enacted and supported by the citizens in the change of government January 2000.
Section 2.08: Voting On The Council:
1. 1. Voting, except on procedural motions, shall be by roll call and the vote shall be recorded in the council minutes as a matter of public record.
2. According to Utah Code Annotated section 67-16-9, no member shall have personal investments in any business entity which will create a substantial conflict between his private interests and his public duties. Furthermore, in addition to the disclosure required by Utah Code Annotated section 17-16a-8, a member shall also abstain from any vote in which the member has a conflict of interest. For the purposes of this plan, a conflict of interest includes a "substantial interest" as defined at Utah Code Annotated section 67-16-3(15) and any other conflict of interest recognized at common law. While members abstaining from a vote shall be considered present for the purposes of a quorum, this shall not reduce the requirement of four (4) votes required for the passage of an item.
3. Except for matters on which a greater or lesser vote is expressly provided by law or by this plan, no action of the council shall be valid and binding unless approved by the affirmative vote of a simple majority of the council; which consists of a minimum of four (4) affirmative votes.
There seems to be a number, who have the authority to correct previous Council actions that were made in the face of this code.. This begs the question: If the actions or votes taken on an issue violated the law, would the vote or action be null and void? And how far back should one go to correct the discovered series of violations?
It seems that when conflicts of interest are discussed, such words as bias, pecuniary, neutrality and fairness become part of the conversation.
In a Supreme Court case involving an oil company and the Department of environmental Quality for the State of Utah, a number of issues were raised, among those were conflicts of interest which become part of the main focus of the response of the court. The court added to the conflicts of interest discussion and findings by using such words as bias, pecuniary and neutrality.
In the case of V1 oil the court found the following:
“Only in certain extreme cases does a presumption of bias arise that requires the disqualification of an adjudicator. For example, courts have held that a clear demonstration of partiality apparent on the face of the record, see Bunnel v. Industrial Comm'n, 740 P.2d 1331, 1333-34 (Utah 1987), or a showing of direct, pecuniary interest, see Gibson v. Berryhill, 411 U.S. 564, 579 (1973), automatically requires disqualification of the decision maker. In Bunnel, the record indicated that in numerous instances the administrative law judge had demonstrated active hostility toward the claimant in an employment disability benefits proceeding, while at the same time exhibiting favoritism toward the employer and the employer's counsel. 740 P.2d at 1333-34. We ruled that such an atmosphere of partiality violated fundamental principles of due process. Id. at 1334; see also Local No. 3 v. NLRB, 210 F.2d 325, 329-30 (8th Cir. 1954) (disqualifying examiner who uniformly rejected evidence offered to support company's point of view, while accepting evidence supporting union). But see NLRB v. Pittsburgh S.S. Co., 337 U.S. 656, 659 (1949) (holding "total rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact").
In Berryhill, the United States Supreme Court disqualified the state licensing board of optometrists in Alabama, which was composed entirely of independent practitioners, from reviewing the licenses of optometrists who were employed by corporations. The licensing board had interpreted a statute to preclude the practice of optometry by corporate employees. The board commenced administrative proceedings for the purpose of revoking the licenses of corporate-employed optometrists and had also filed a civil suit against them. Because nearly half of the practicing optometrists in Alabama were employed by corporations, it was obvious that the independent optometrists on the licensing board would receive more business, thereby reaping a substantial pecuniary gain, if the corporate-employed optometrists' licenses were revoked. Berryhill, 411 U.S. at 578. The presence of a clear, substantial pecuniary benefit is one of the most evident causes of either conscious or subconscious bias; and perhaps more important, it is the type of temptation which inevitably compromises public confidence in the process itself, undermining the legitimacy of any decision so tainted. Thus, the Supreme Court concluded that disqualifying bias will be presumed whenever the decision maker has a substantial pecuniary interest in the outcome.(7) Id. at 579-80; see also Tumey v. Ohio, 273 U.S. 510, 531-35 (1927) (judge received portion of fines and fees assessed in addition to his salary); cf. Ward v. Village of Monroeville, 409 U.S. 57, 57-59, 61-62 (1972) (where mayor had obligation to maintain village finances, a major portion of which were derived from the fines levied by the mayor's court, mayor was disqualified from acting as judge).
The word “pecuniary” has the following meaning as found in Black’s Law Dictionary”
“A direct interest related to money in an action or case as would, for example, require a judge to disqualify himself from sitting on a case if he owned stock in corporate party”
It would seem to reasonable people, that any discussion or vote where one would have relatives or other family members that would be enriched from discussions or votes would be a pecuniary interest.
The Code of the State of Utah seems to address the issue of conflict of interest and applies a penalty for knowing violations.
The question must continued to be asked; “If you hold a position of trust, elected or appointed, should such a person know winch the authority comes from and how much authority is provided and what is the penalty for violation of that authority?
In recent weeks, some officials in government have been changed by the will of the people through the legitimate procedure of voting. The oath taken as they were sworn in is the same oath as given in the County which is to uphold the Constitution of this country and the constitution of the State of Utah, which would embody all the rules of conduct, regulations and laws as then or now constituted.
The State of Utah codes regarding conflicts of interest say the following:
17-16a-4. Prohibited use of official position -- Exception.
1. (1) Except as provided in Subsection (3) or (5), it is an offense for an elected or appointed officer to:
(a) disclose confidential information acquired by reason of the officer's official position or use that information to secure special privileges or exemptions for himself or others;
(b) use or attempt to use the officer's official position to secure special privileges for the officer or for others; or
(c) knowingly receive, accept, take, seek or solicit, directly or indirectly, any gift or loan for the officer or for another, if the gift or loan tends to influence the officer in the discharge of the officer's official duties.
67-16-4. Improperly disclosing or using private, controlled, or protected information -- Using position to secure privileges or exemptions -- Accepting employment which would impair independence of judgment or ethical performance -- Exception.
1. (1) Except as provided in Subsection (3), it is an offense for a public officer, public employee, or legislator to:
(a) accept employment or engage in any business or professional activity that he might reasonably expect would require or induce him to improperly disclose controlled information that he has gained by reason of his official position;
(b) disclose or improperly use controlled, private, or protected information acquired by reason of his official position or in the course of official duties in order to further substantially the officer's or employee's personal economic interest or to secure special privileges or exemptions for himself or others;
(c) use or attempt to use his official position to:
(i) further substantially the officer's or employee's personal economic interest; or
(ii) secure special privileges or exemptions for himself or others;
(d) accept other employment that he might expect would impair his independence of judgment in the performance of his public duties; or
(e) accept other employment that he might expect would interfere with the ethical performance of his public duties.
(2) (a) Subsection (1) does not apply to the provision of education-related services to public school students by public education employees acting outside their regular employment.
(b) The conduct referred to in Subsection (2)(a) is subject to Section 53A-1-402.5.
(3) This section does not apply to a public officer, public employee, or legislator who engages in conduct that constitutes a violation of this section to the extent that the public officer, public employee, or legislator is chargeable, for the same conduct, under Section 63G-6a-2304.5 or Section 76-8-105.
It would seem that a preponderance of information is available to assist in concluding that recent actions of the County Council regarding budgets, tax increases and so forth seem to be violations of the code and enough evidence does exist for some type of action to be taken that would negate changes and modifications that have been voted on and accepted. One could conclude that such is supportable and warranted.
The people of Wasatch County deserves action on this issue, which would bring about a new degree of confidence and respect for elected and appointed officials along with setting a standard for those who might be elected in the future.
More and more issues continue to come from the poison well
we know as HL&P Board. Their actions are becoming issues for this year’s
The more revelations, the more questions need answers. The
board is getting behind in supplying answers, not that their answers would mean
much, since they have had over a year to dream up some explanations to their
money taking the first time and right now they have not provided one iota of
detail, remorse or justification other than they wanted what they saw and
decided to take it.
But the actions of the board should not be allowed to go
unchallenged. City councils, the actual representatives of the very people who
own the power company have sat on the sidelines in fearful silence. Perhaps,
they know what has been going on and to question or expose the issues may place
them in some type of public scrutiny that would be embarrassing and cause many
questions to be raised. Maybe questions that would hard to answer without
exposing their endorsement of the taking of money and their support of
dishonest deals, all at the expense of rate payers.
Here is another issue of about three more that may not be
addressed since the board is really busy trying to cover this newest deal up
with the hope that powers outside of the community will not address it.
The termination of the chief financial officer, Mr. Tony Furness,
makes one wonder who is really in charge of overseeing the money. With checks
and balances, how can such things happen?Our sources suggest, this issue has the board circling the wagons,
looking for scapegoats and trying to figure how to make the whole thing go away
so that outside sources and local sources will not know all the details. The
work on this issue is very complex, since they all want it to go away, but if
asked, they can say it was taken care of in house. Now of course what that
means is anyone’s guess, but suffice it to say, the rate payers will be lead
down the yellow brick road and no one will actually know what happened, how it
happened and how many people were involved. Sources close to this have
concluded that more than Mr. Furness was involved. Those certain purchases were
made that were called miscellaneous and bills were paid, knowing it was wrong
and dishonest. And instead of checking things out when warrants were paid,
those in charge were too busy eating pizza and salad, which the rate payers had
Were you the rate payers invited for lunch or dinner? Didn’t
The larger question is how much money has been lost and can
it be recovered and how long will it take. Will the board actually do something
to really collect it. I suppose they could lien someone’s house, but people who
legally do it, will tell you it does not always work out and the time it takes
to collect, by then most of the players are either dead or dying.
Sources in the know seem to suggest the amount of money is
unknown at this time and may include some type of loans as well as misuse of
credit cards. Of course by the time you read this, there will be some magic
performed and new policies instituted regarding credit cards, who can use them
and who oversees with the idea that all of this will go away. This is much like
the new personnel policy regarding whistle blowing. As long as the current board
is in play, the rate payers can rest assured; those blowing the whistle if
caught will be assaulted and dismissed. Likewise, the new credit card policy
will be for public consumption and the work of spending will go back to normal.
Will there ever be a full accounting of all the misdeeds and
money lost and a complete accounting of the players?
Will the current board come clean? Will they pay back the
money they took? Will they stop the cover-up and allow the truth on this second
issue to come forward without some kind of paint job on it? Will the response
to the first issue and the Attorney General’s office actually be a factual
presentation or another smoke and mirror carnival side show? Will the councils
of the various cities have a little starch in their back bone and call for
audits and information to make sure what was taken has been replaced and what
was changed to cover things up is exposed? Then again, when is hell freezing
most of you are aware, the State Auditor as well as the Attorney General for
the State of Utah has made a series of determinations regarding the violation
of law by the Board of Heber Power and Light.
a series of letters and investigations, they have determined the board of
HP&L violated the laws of the State of Utah and the By-laws of the board of
bottom line is they are telling the board members to follow the law and return
all the money they took under the guise of a health benefit.
is more to this issue, a lot more. The board of Heber Power and Light believed
they were above the law, and since they had the power, they were entitled to do
what they wanted and when they wanted.
asked by citizens to pay back the money, they thumbed their collective noses at
the suggestion and determined as one said: “I will not return the money, I
earned it” In an effort to move the discussion to another area, the board chair
is quoted as saying: “If I would have known the public was going to be so upset
at this we would not have done it” meaning we tried to steal some money but
is no justification for their lack of knowledge of the law and neither is there
any excuse for the simpleton approach to doing a job for the people of the
County and the respective Cities.
the Attorney General is not only suggesting they pay back the money in full,
but has given a veiled threat, that if they do not, further action will be
Boards lack of action and response to the citizens and their requests has now
blown this episode larger than necessary and now we come to the serious
solutions since the board cannot be trusted.
following people, not only need to pay the money back, but the citizens would
be best served if they resigned. David Phillips, Connie Tatton,John Whiting and Robert Patterson. One who
has not paid it back, but is part of the solution is Nile Horner, we would
expect this request is for action from him as well.
one is sure that waiting for the next election before they all leave office is
even a good remedy. Resignation needs to take place for the following of
1.They lied about the
so called health benefit and then tried to suggest they were not guilty of
2.They failed to follow the law, by not holding
a public hearing
to respond to concerns of the citizens in the very beginning when asked to
justify their actions. It was the Chair who callously said this was not a good
time to talk about the issue when asked and questioned.
4.They tried to
divert the attention from their wrong
doing to other seemingly unimportant issues
5.They treated citizens with disdain and
ridiculed them publicly
6.They pretended they had done nothing wrong but
would not address the issue when given the chance.
7.Obviously they took
something they were not entitled to and tried to cover it up
8.They lied to the very people they took an oath
to serve and protect.
Their ties to the community need to be
severed. They are no better than the ones put in jail for similar behavior and
it may come to that as well.
Their resignation in disgrace is what they
owe the people. Their actions have been unchristian like and have brought
ridicule and distrust on their religion, their family and everything they have
or will have touched or associated with.
They have demonstrated to all the citizens,
they lack a moral compass and at this point they should be released from public
service until they make amends with the citizens, their creator and those they
have specifically harmed, the rate payers of Heber Power and Light. They owe
The current discussion on gun control is now mired in emotion and fact less representations by elected and appointed officials, who see political gain, votes and more government control in the everyday lives of American Citizens. On February 13, 2013, Edward J. Erler, professor of political science at California State University, delivered the following lecture at Hillsdale College. This lecture is reprinted by permission from “Imprimis”, a publication of Hillsdale College. The WASATCH CURRENT is grateful for this permission.
THE SECOND AMENDMENT AS AN
EXPRESSION OF FIRST PRINCIPLES
We are currently mired in a frantic debate about the rights of gun owners. One example should suffice to prove that the debate has become hysterical: Second Amendment supporters, one prominent but less than articulate member of Congress alleges, have become “enablers of mass murder.”
Special animus has been directed against so-called assault rifles. These are semi-automatic, not automatic weapons—the latter have been illegal under federal law since the 1930s—because they require a trigger pull for every round fired. Some semi-automatic firearms, to be sure, can be fitted with large-capacity magazines. But what inspires the ire of gun control advocates seems to be their menacing look—somehow they don’t appear fit for polite society. No law-abiding citizen could possibly need such a weapon, we are told—after all, how many rounds from a high-powered rifle are needed to kill a deer? And we are assured that these weapons are not well-adapted for self-defense—that only the military and the police need to have them.
Now it’s undeniable, Senator Dianne Feinstein to the contrary notwithstanding, that semi-automatic weapons such as the AR-15 are extremely well-adapted for home defense—especially against a crime that is becoming more and more popular among criminals, the home invasion. Over the past two decades, gun ownership has increased dramatically at the same time that crime rates have decreased. Combine this with the fact that most gun crimes are committed with stolen or illegally obtained weapons, and the formula to decrease crime is clear: Increase the number of responsible gun owners and prosecute to the greatest extent possible under the law those who commit gun-related crimes or possess weapons illegally.
Consider also that assault rifles are rarely used by criminals, because they are neither easily portable nor easily concealed. In Chicago, the murder capital of America—a city with draconian gun laws—pistols are the weapon of choice, even for gang-related executions. But of course there are the horrible exceptions—the mass shootings in recent years—and certainly we must keep assault weapons with high-capacity magazines out of the hands of people who are prone to commit such atrocities.
The shooters in Arizona, Colorado, and Newtown were mentally ill persons who, by all accounts, should have been incarcerated. Even the Los Angeles Times admits that “there is a connection between mental illness and mass murder.” But the same progressives who advocate gun control also oppose the involuntary incarceration of mentally ill people who, in the case of these mass shootings, posed obvious dangers to society before they committed their horrendous acts of violence. From the point of view of the progressives who oppose involuntary incarceration of the mentally ill—you can thank the ACLU and like-minded organizations—it is better to disarm the entire population, and deprive them of their constitutional freedoms, than to incarcerate a few mentally ill persons who are prone to engage in violent crimes.
And we must be clear—the Second Amendment is not about assault weapons, hunting, or sport shooting. It is about something more fundamental. It reaches to the heart of constitutional principles—it reaches to first principles. A favorite refrain of thoughtful political writers during America’s founding era held that a frequent recurrence to first principles was an indispensable means of preserving free government—and so it is.
The Whole People Are the Militia
The Second Amendment reads as follows: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The immediate impetus for the amendment has never been in dispute. Many of the revolutionary generation believed standing armies were dangerous to liberty. Militias made up of citizen-soldiers, they reasoned, were more suitable to the character of republican government. Expressing a widely held view, Elbridge Gerry remarked in the debate over the first militia bill in 1789 that “whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia.”
The Second Amendment is unique among the amendments in the Bill of Rights, in that it contains a preface explaining the reason for the right protected: Militias are necessary for the security of a free state. We cannot read the words “free State” here as a reference to the several states that make up the Union. The frequent use of the phrase “free State” in the founding era makes it abundantly clear that it means a non-tyrannical or non-despotic state. Justice Antonin Scalia, writing for the majority in the case of District of Columbia v. Heller (2008), rightly remarked that the term and its “close variations” were “terms of art in 18th-century political discourse, meaning a free country or free polity.”
The principal constitutional debate leading up to the Heller decision was about whether the right to “keep and bear arms” was an individual right or a collective right conditioned upon service in the militia. As a general matter, of course, the idea of collective rights was unknown to the Framers of the Constitution—and this consideration alone should have been decisive. We have James Madison’s own testimony that the provisions of the Bill of Rights “relate [first] . . . to private rights.”
The notion of collective rights is wholly the invention of the Progressive founders of the administrative state, who were engaged in a self-conscious effort to supplant the principles of limited government embodied in the Constitution. For these Progressives, what Madison and other Founders called the “rights of human nature” were merely a delusion characteristic of the 18th century. Science, they held, has proven that there is no permanent human nature—that there are only evolving social conditions. As a result, they regarded what the Founders called the “rights of human nature” as an enemy of collective welfare, which should always take precedence over the rights of individuals. For Progressives then and now, the welfare of the people—not liberty—is the primary object of government, and government should always be in the hands of experts. This is the real origin of today’s gun control hysteria—the idea that professional police forces and the military have rendered the armed citizen superfluous; that no individual should be responsible for the defense of himself and his family, but should leave it to the experts. The idea of individual responsibilities, along with that of individual rights, is in fact incompatible with the Progressive vision of the common welfare.
This way of thinking was wholly alien to America’s founding generation, for whom government existed for the purpose of securing individual rights. And it was always understood that a necessary component of every such right was a correspondent responsibility. Madison frequently stated that all “just and free government” is derived from social compact—the idea embodied in the Declaration of Independence, which notes that the “just powers” of government are derived “from the consent of the governed.” Social compact, wrote Madison, “contemplates a certain number of individuals as meeting and agreeing to form one political society, in order that the rights, the safety, and the interests of each may be under the safeguard of the whole.” The rights to be protected by the political society are not created by government—they exist by nature—although governments are necessary to secure them. Thus political society exists to secure the equal protection of the equal rights of all who consent to be governed. This is the original understanding of what we know today as “equal protection of the laws”—the equal protection of equal rights.
Each person who consents to become a member of civil society thus enjoys the equal protection of his own rights, while at the same time incurring the obligation to protect the rights of his fellow citizens. In the first instance, then, the people are a militia, formed for the mutual protection of equal rights. This makes it impossible to mistake both the meaning and the vital importance of the Second Amendment: The whole people are the militia, and disarming the people dissolves their moral and political existence.
Arms and Sovereignty
The Preamble to the Constitution stipulates that “We the people . . . do ordain and establish this Constitution for the United States.” It is important to note that the people establish the Constitution; the Constitution does not establish the people. When, then, did “we the people” become a people? Clearly Americans became a people upon the adoption of its first principles of government in the Declaration of Independence, which describes the people both in their political capacity, as “one people,” and in their moral capacity, as a “good people.” In establishing the Constitution, then, the people executed a second contract, this time with government. In this contract, the people delegate power to the government to be exercised for their benefit. But the Declaration specifies that only the “just powers” are delegated. The government is to be a limited government, confined to the exercise of those powers that are fairly inferred from the specific grant of powers.
Furthermore, the Declaration specifies that when government becomes destructive of the ends for which it is established—the “Safety and Happiness” of the people—then “it is the Right of the People to alter or to abolish it, and to institute new Government.” This is what has become known as the right of revolution, an essential ingredient of the social compact and a right which is always reserved to the people. The people can never cede or delegate this ultimate expression of sovereign power. Thus, in a very important sense, the right of revolution (or even its threat) is the right that guarantees every other right. And if the people have this right as an indefeasible aspect of their sovereignty, then, by necessity, the people also have a right to the means to revolution. Only an armed people are a sovereign people, and only an armed people are a free people—the people are indeed a militia.
The Declaration also contains an important prudential lesson with respect to the right to revolution: “Prudence . . . will dictate,” it cautions, “that Governments long established should not be changed for light and transient causes.” It is only after “a long train of abuses and usurpations pursuing invariably the same Object,” and when that object “evinces a design to reduce [the People] to absolute Despotism,” that “it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” Here the Declaration identifies the right of revolution, not only as a right of the people, but as a duty as well—indeed, it is the only duty mentioned in the Declaration.
The prudential lessons of the Declaration are no less important than its assertion of natural rights. The prospect of the dissolution of government is almost too horrible to contemplate, and must be approached with the utmost circumspection. As long as the courts are operating, free and fair elections are proceeding, and the ordinary processes of government hold out the prospect that whatever momentary inconveniences or dislocations the people experience can be corrected, then they do not represent a long train of abuses and usurpations and should be tolerated. But we cannot remind ourselves too often of the oft-repeated refrain of the Founders: Rights and liberties are best secured when there is a “frequent recurrence to first principles.”
The Current Legal Debate
In District of Columbia v. Heller, the Supreme Court handed down a decision that for the first time held unambiguously that the Second Amendment guaranteed an individual the right to keep and bear arms for purposes of self-defense. Writing for the majority, Justice Scalia quoted Blackstone’s Commentaries on the Laws of England, a work well known to the Founders. Blackstone referred to “the natural right of resistance and self-preservation,” which necessarily entailed “the right of having and using arms for self-preservation and defense.” Throughout his opinion, Justice Scalia rightly insisted that the Second Amendment recognized rights that preexisted the Constitution. But Justice Scalia was wrong to imply that Second Amendment rights were codified from the common law—they were, in fact, “natural rights,” deriving their status from the “Laws of Nature and of Nature’s God.”
In his Heller dissent, Justice John Paul Stevens boldly asserted that “there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.” In a perverse way, Justice Stevens was correct for the same reason Justice Scalia was wrong: What the Framers did was to recognize the natural right of self-defense. Like the right to revolution, the right to self-defense or self-preservation can never be ceded to government. In the words of James Wilson—a signer of the Declaration, a member of the Constitutional Convention, and an early justice of the Supreme Court—“the great natural law of self-preservation . . . cannot be repealed, or superseded, or suspended by any human institution.”
Justice Stevens, however, concluded that because there is no clause in the Constitution explicitly recognizing the common law right of self-defense, it is not a constitutional right and therefore cannot authorize individual possession of weapons. What Justice Stevens apparently doesn’t realize is that the Constitution as a whole is a recognition of the “the great natural law of self-preservation,” both for the people and for individuals. Whenever government is unwilling or unable to fulfill the ends for which it exists—the safety and happiness of the people—the right of action devolves upon the people, whether it is the right of revolution or the individual’s right to defend person and property.
Justice Scalia noted that those who argued for a collective-rights interpretation of the Second Amendment have the impossible task of showing that the rights protected by the Second Amendment are collective rights, whereas every other right protected by the Bill of Rights is an individual right. It is true that the Second Amendment states that “the people” have the right to keep and bear arms. But other amendments refer to the rights of “the people” as well. The Fourth Amendment, for example, guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure.” But there seems to be universal agreement that Fourth Amendment rights belong to individuals.
And what of the First Amendment’s protection of “the right of the people peaceably to assemble and to petition the Government for a redress of grievances?” Justice Stevens argues that these rights are collective rights. After all, he avers, “they contemplate collective actions.” It is true, the Justice concedes, that the right to assemble is an individual right, but “its concern is with action engaged in by members of a group, rather than any single individual.” And the right to petition government for a redress of grievances is similarly, he says, “a right that can be exercised by individuals,” even though “it is primarily collective in nature.” Its collective nature, he explains, means that “if they are to be effective, petitions must involve groups of individuals acting in concert.” Even though individuals may petition government for redress, it is more “effective” if done in concert with others, even though “concert” is not necessary to the existence or the exercise of the right.
With respect to assembly, Justice Stevens argues, there cannot be an assembly of one. An “assembly” is a collection of individual rights holders who have united for common action or to promote a common cause. But who could argue that the manner in which the assemblage takes place, or the form that it takes, significantly qualifies or limits the possession or exercise of the right? We might as well argue that freedom of speech is a collective right because freedom of speech is most effectively exercised when there are auditors; or that freedom of the press is a collective right because it is most effectively exercised when there are readers. Justice Stevens’ argument is thus fanciful, not to say frivolous.
The Court in Heller did indicate, however, that there could be some reasonable restrictions on gun ownership. “Longstanding prohibitions on the possession of firearms by felons and the mentally ill,” for example, will continue to meet constitutional muster. Laws that forbid “carrying firearms in sensitive places such as schools and government buildings” are also reasonable regulations, as are “conditions and qualifications on the commercial sale of arms.” The prohibition on “dangerous and unusual weapons”—including automatic firearms—fall outside Second Amendment guarantees as well.
But the Heller decision is clear that handgun possession for self-defense is absolutely protected by the Second Amendment. Can handguns be carried outside the home as part of “the inherent right of self-defense?” The Court indicated that handguns can be prohibited in “sensitive places,” but not every place outside the home is sensitive. And if carrying weapons in a non-sensitive area is protected by the Second Amendment, can there be restrictions on concealed carrying? These are all questions that will have to be worked out in the future, if not by legislation, then by extensive litigation.
The Supreme Court took a further important step in securing Second Amendment rights in McDonald v. Chicago (2010), ruling that these rights as articulated in Heller were fundamental rights, and thus binding on the states through the due process clause of the Fourteenth Amendment. We have to remember, however, that both of these cases were decided by narrow, 5-4 majorities, and that new appointments of more progressive-minded justices to the Court could easily bring about a reversal.
For the moment, Second Amendment rights seem safe, but in the long term a political defense will be a more effective strategy. As Abraham Lincoln once remarked, “Whoever moulds public sentiment, goes deeper than he who enacts statutes, or pronounces judicial decisions.” Shaping and informing public sentiments—public opinion—is political work, and thus it is to politics that we must ultimately resort.
* * *
In the current climate of public opinion, Congress will have little appetite for passing an assault gun ban. More likely, it will be satisfied with passing legislation aimed at gun trafficking and tightening background checks. We must remember, however, President Obama’s pledge: “If Congress won’t act then I will.” He has already issued 23 gun-related executive orders, and some of them are rather curious. One of them notes that there is nothing in the Affordable Care Act that prevents doctors from asking patients about guns in the home; another directs “the Centers for Disease Control to research the cause and prevention of gun violence.”
The President’s power to act through executive orders is as extensive as it is ill-defined. Congress routinely delegates power to executive branch agencies, and the courts accord great deference to agency rule-making powers, often interpreting ambiguous legislative language or even legislative silence as a delegation of power to the executive. Such delegation provokes fundamental questions concerning the separation of powers and the rule of law. Many have argued that it is the price we have to pay for the modern administrative state—that the separation of powers and the rule of law have been rendered superfluous by the development of this state. Some of the boldest proponents of this view confidently insist that the triumph of the administrative state has propelled us into a post-constitutional era where the Constitution no longer matters.
The Gun Control Act of 1968 gives the President the discretion to ban guns he deems not suitable for sporting purposes. Would the President be bold enough or reckless enough to issue an executive order banning the domestic manufacture and sale of assault rifles? Might he argue that these weapons have no possible civilian use and should be restricted to the military, and that his power as commander-in-chief authorizes him so to act? Or perhaps sometime in the near future he will receive a report from the Centers for Disease Control that gun violence has become a national health epidemic, with a recommendation that he declare a national health emergency and order the confiscation of all assault weapons. Congress could pass legislation to defeat such an executive order; but could a divided Congress muster the votes?—and in any case, the President could resort to his veto power. Individuals would have resort to the courts; but as of yet, we have had no ruling that assault weapons are not one of the exceptions that can be banned or regulated under Heller. We could make the case that assault rifles are useful for self-defense and home defense; but could we make the case that they are essential? Would the courts hold that the government had to demonstrate a compelling interest for a ban on assault rifles, as it almost certainly would have to do if handguns were at issue?
Are these simply wild speculations? Perhaps—probably! But they are part of the duty we have as citizens to engage in a frequent recurrence to first principles.
Questions have been raised, regarding the legality of political subdivisions, namely cities, counties, special service districts and boards, providing money, property, tax relief and so forth, to private agencies or persons, for both non-profit and profit undertakings.
Such action in the last few years has been increased by a number of cities and the county of our valley.
Examples would be, selling property for less than fair market value to a private business. Providing tax relief, and/or providing tax dollars, in the form of grants or outright gifts and so on.
The budgets that have been proposed by the various agencies, and in many cases accepted, show funding set aside for many causes, supported by the tax dollars paid by citizens.
There are many worthy causes in our valley. Some are very dear to the heart, but regardless of the feelings, the process of granting the wishes of the selected few, seems to have violated the laws of the State of Utah and its Constitution.
Midway City has injected itself in the process of working with a retail business. This was a concept accepted by the elected officials of Midway that on the surface might provide for tax revenues and employment for the people. A worthy cause, but it seems a number of laws were broken. Providing property to this business to have adequate parking was questionable and in light of the Constitution seems illegal. Effort was made to reduce the tax load for a number of years for this new business. The County became involved; the School District, the Sewer District and others, participated in one form or another to reduce taxes or costs, so this business could open.
Regardless of the feelings of those involved, what took place, seemed to violate the laws of the State of Utah and placed all those involved, in aiding and abetting an illegal transaction.
Heber City has loaned money to those that asked. They sold property to a local business for less than market value and in the current budget; there is a special fund for use by the City to accommodate groups or organizations that may ask for some assistance financially.
The funding is once again supplied by taxpayers.
Wasatch County has also placed them in this problem and has supplied loans and money to various groups and businesses, using tax dollars as the source for the gifts.
Whatever you believe concerning the issues and the providing of money or gifts to certain private concerns, according to the State Constitution and rulings of the Utah Supreme Court, these actions have run afoul of the law.
The question is how is the problem solved? Is there a need to ask for the resignations of those involved? Can there be a demand for repayment from those who voted to give? Is ignorance an excuse and would such a defense be justifiable?
Citizens need to understand, that failure to observe the law, requires some type of penalty. Penalties are extracted for those that run red lights, speed or the failure to license themselves or their vehicles.
Those who fain ignorance of a law, is not allowed using this excuse to satisfy justice.
Citizens now need to let officials know of their feelings. To get satisfaction, is there a need to resort to court battles for restitution or are there other methods to provide a penalty for failure to observe the law?
Here is the exact wording from the Constitution of the State of Utah.
Article VI, Section 29. [Lending public credit and subscribing to stock or bonds forbidden -- Exception.]
(1) Neither the State nor any county, city, town, school district, or other political subdivision of the State may lend its credit or, except as provided in Subsection (2), subscribe to stock or bonds in aid of any private individual or corporate enterprise or undertaking.
(2) Except as otherwise provided by statute, the State or a public institution of post-secondary education may acquire an equity interest in a private business entity as consideration for the sale, license, or other transfer to the private business entity of intellectual property developed in whole or in part by the State or the public institution of post-secondary education, and may hold or dispose of the equity interest.
The Supreme Court of the State of Utah, in a case involving the Salt Lake County Commission, versus, Douglas Short, Salt County Attorney, case number 980074, addressed one of many issues in this opinion of the court, that seemed to be tied to contributions made by the County Commission of Salt Lake City to a number of private groups, they believed would further certain public needs. In the court’s response, they made the following findings on gifts, the use of tax dollars and the selling of property.
The last issue on appeal concerns three specific charitable contributions made by the Commission. They were to the Christmas in April program, the Good Samaritan Program, and the Utah Issues Poverty Conference. The Commission cites to the following statutes, which it claims imposes a duty on it to expend funds to effectuate its duties: Utah Code Ann. §§ 17-5-244, -251, -253 to 55, -271, (1995). While it is true that these statutes give the County the authority to provide welfare and social services, there is no express grant of authority in them that authorizes the disbursal of funds directly to outside organizations or individuals who will, in turn, accomplish those goals. While the Commission claims that these disbursements will flow directly to people in need, technically the funds will flow from the County to these organizations, not to members of the public. Therefore, we must turn to statutory and case law to determine if these disbursements were proper
Section 17-4-4 of the Code states: "No County shall in any manner give or lend its credit to or in aid of any person or corporation, or appropriate money in aid of any private enterprise." Utah Code Ann. § 17-4-4 (1995). The statute does not differentiate between non-profit and for-profit organizations. The three organizations in question are private enterprises and, because money is being spent, this provision appears to apply. The policy of this section is a strong one, echoed in the Utah Constitution. See Utah Const. art. VI, § 29.(11) This policy is aimed at preventing government from in any way using public assets for private purposes. For example, we have held before that "[t]he property owned by a city is held by the city in trust for the use and benefit of its inhabitants and cannot be disposed of by gift without specific legislative authority." Sears, 533 P.2d at 119; see also Lowder, 711 P.2d at 283 ("[A] county cannot . . . dispose of public property without receiving adequate consideration."). In Sears, this court examined section 10-8-2 of the Code, which deals with the authority of municipalities to dispose of property. Lowder examined sections 17-4-3 and 17-5-48(12) of the Code, which gives the same general powers to the counties that section 10-8-2 gives to municipalities. Although there is no express provision defining the nature of the property transfer in any of these statutes, we have held that such property cannot be disposed without running afoul of this policy unless the transaction is "in good faith and for adequate consideration." Sears, 533 P.2d at 119. Even though Sears and Lowder concerned the transfer of real property, and this case involves money, their reasoning is fully applicable. The County holds all forms of property and assets in trust for the benefit of its constituents and other individuals expressly designated by statute, and the Commission can expend them only in exchange for fair value. See id. Therefore, for the contributions to avoid the statute's ban on transfers "in aid of" a private enterprise, the contributions must have been given for fair value in goods or services. Id. And we have also held that "adequate consideration" in the transfer of property must provide "present benefit that reflects the fair market value." Lowder, 711 P.2d at 282.
The trial court seemed to conclude that this standard was met when it found that "[e]ach of the payments is intended to achieve a specific result" and that the result "is a benefit to the County, the value of which may well exceed the sum expended, perhaps by a substantial amount." But a general finding that any of the contributions will provide a benefit, without specifying exactly what that benefit is, in present market value terms, is not specific enough to qualify the benefit as adequate consideration. From the facts it is clear that these contributions were not tied to any specific services to be rendered. Absent a detailed showing of the benefits to be obtained from the money given, these transactions run afoul of section 17-4-4.
Questions are being asked in light of the Fire District Board making the
that it is illegal for them to take payment for their services, since
they are also
taking payments for being elected officials.
persist such as: Does the law apply to other boards and districts
over the years have been collecting payments for meeting
Here is the law as it appears in Utah State Code Annotated 17B-1-308;
17B-1-308. Boards of trustees comprised of county or municipal legislative body members.
(1) If a county or municipal legislative body by statute also serves as the board of trustees of a local district:
(a) the board of trustees shall hold district meetings and keep district minutes, accounts, and other records separate from those of the county or municipality;
(b) subject to Subsection (2), the board of trustees may use, respectively, existing county or municipal facilities and personnel for district purposes;
(c) notwithstanding Subsections 17B-1-303(1) and (2), the term of office of each board of trustees member coincides with the member's term as a county or municipal legislative body member;
(d) each board of trustees member represents the district at large; and
(e) board members may not receive compensation for their service as board members in addition to compensation they receive as members of a county or municipal legislative body.
(2) The county or municipal legislative body, as the case may be, shall charge the local district, and the local district shall pay to the county or municipality, a reasonable amount for:
(a) the county or municipal facilities that the district uses; and
(b) except for services rendered by the county or municipal legislative body members, the services that the county or municipality renders to the local district.
As outlined in the various codes, a district may be a special service district;
be an area to provide a service or to consolidate certain services.
What boards should this law have application to? Reasonable people
reading the law and
following all the citations of boards, districts and
political subdivisions made in
State Code, could make a case that every
board, regardless, of name, should or could
come under the law found in
In Wasatch County, we have boards, very much like the State of
Utah, that use terms
such as: Director or Trustee. There are those who
would like to run from their duty as
elected officials, and hide under the
pretext, that in discussing districts in one
place in State of Utah Code, the
term “director” in their mind would be different than
the word “trustee” or
“trustees”. They are trying to make the case; the duties are
therefore, if the code says “trustees” and they call
the law would not apply to them.
A careful reading of the code of State of
Utah and a review of written opinions on the
subject, open the door to the
1. Director and Trustee are used interchangeable in
Utah Code. And although some
of the work as a “director” may be
somewhat different than work of a “trustee”, the
difference is usually found
in the difference of duties between non-profit businesses
or groups verses
Attorneys have written many articles on the subject of
director and trustee and
conclude there is no difference.
What boards should
come under this law? As it is now known, in Wasatch County there
number of boards, between 20 and 25 that elected officials are on. Some
some do not. The major ones that pay seem to center in the
1. Blue bench Land fill Board
2. Heber Power and Light
3. Heber Valley SSD (sewer district)
4. Jordanelle SSD
5. Wasatch Fire District
6. Wasatch Tourism and Economic Development
There may be more, but these seem to be the ones that pay the most.
Some seem to question the fact that Heber Light and Power appears on this
the rest seem to convey, they are special service districts. The
inclusion of Heber
Light and Power seems to be correct in light of the
They are a political subdivision as outlined in State Code.
cover a geographical area of Wasatch County and they mention in their own
documents they are a service provider and the service area does not include
County, so it would seem they are a “service district”.
ask as citizens of this County what should be done?
1. Should the money be returned with interest? The money involved in the last
six years exceeds $700,000.00.
2. Should those involved resign so new elections can be held?
3. Should legal action be taken, so there is combination of incarceration and re-
4. Should it be ignored, hoping it will all go away?
5. Should attorneys who have provided legal advice, be allowed to escape any
action? They were paid with rate payer money or tax money and should have known the
law and its application.
There will be those who fain ignorance of the law. Such ignorance is no
reasonable people, if they have any doubt of what they are
doing, find out.
The people deserve a resolution of the issues and are
entitled to an outcome that
would preclude anyone else taking money for
any service that is not allowed by law.
Perhaps, the public discussion needs
to center itself on the real principles of
morality, honesty, openness,
transparency and civic service and a little less on the
issues we have
allowed in the past.
(for those interested, citations of opinions and court cases as well as the State of Utah are available and were used in this article)