Wednesday, January 22, 2014

EXCERPTS FROM A LETTER TO THE WASATCH COUNTY ATTORNEY

Mr. Scott Sweat
805 West 100 South
Wasatch County Attorney
Heber City, Utah 84032

Dear Scott,

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.

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