This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Open-government advocates are correct when they say Utah ran afoul of the state's open-meetings law during a March 27 strategy session about oil-shale development.
Colorado Common Cause has raised concerns about a meeting Uintah County officials organized in Vernal with state officials and Carbon and Duchesne county leaders along with officials from Wyoming and Colorado counties. Common Cause filed records requests with the counties and received 450 pages, many of them emails, some of which indicate industry lobbyists helped craft a resolution that the counties later passed.
In defense of the closed-door meeting, Uintah County Commissioner Mike McKee told The Salt Lake Tribune the meeting was legal under Utah's Open Meetings Act because the law allows officials to keep out the public from "strategy sessions to discuss pending or reasonably imminent litigation."
Officials wildly misunderstand Utah's Open Meetings Act if they believe the "litigation" provision can be used to justify closing the March meeting. Did not one Utah official question the legality of this meeting? The governor's top public lands adviser attended but, in a prepared statement, she said it wasn't her role to "opine on the way the meeting was managed." While public officials are supposed to get yearly training on the Open Meetings Act, officials in this case would likely flunk an exam about this and other provisions of the law.
An important court case involving the Utah Senate and legislative history fly in the face of claims that it was appropriate to close this meeting. In fact, it was under similar circumstances that the law's language was tightened a decade ago with the hopes of curtailing such secret government actions.
Under the direction of then-Utah House Speaker Marty Stephens, local government leaders, lobbyists and media representatives spent many hours hashing out the problems with Utah's meetings law and crafting language to close loopholes. (Disclosure: I was at the table representing Utah news organizations.)
Journalists and the public frequently complained about the law's "pending litigation" provision. It was so broad that an idle threat to sue would prompt officials to retreat into secret. Abuse also came when public officials felt any inkling that a discussion might cause legal trouble. To clarify the law, "reasonably imminent" was add to the litigation provision.
The bright line for the public then and now is that if litigation has been filed in court or is " reasonably imminent" — that means attorneys are close to filing litigation or standing on the courthouse steps — then executive sessions are justified.
The March oil shale meeting was intended to create policy and respond to issues related to oil shale development, not to respond to any imminent litigation. There is no case in court to which Uintah County is responding, only some far-off, imagined potential for litigation. The Bureau of Land Management's final decision on the issue is months away. What's even more troubling is that, while the public was shut out, lobbyists were invited into the meeting to craft policy.
The Attorney General's Office and the public should send a clear message that such abuse of the Open Meetings Act won't be tolerated. Furthermore, the bar on training public officials about the law should be raised.
Joel Campbell, an associate journalism professor at Brigham Young University, writes about open government and First Amendment issues for The Tribune. His views do not represent those of BYU.