Utah Constitutional Revision Commission
Members Present:
Mr. Gayle McKeachnie, Chair Mr. Alan L. Sullivan, Vice Chair Ms. Diana Allison Rep. Afton B. Bradshaw Sen. Mike Dmitrich
Rep. Byron L. Harward
Sen. Lyle W. Hillyard
Mr. Dallin W. Jensen Rep. David M. Jones
Mr. W. Craig Jones
Mr. Richard V. Strong
Dr. Jean Bickmore White
Ms. Mary Anne Q. Wood
Members Excused:
Justice Christine Durham
Sen. Lane Beattie
Members Absent:
Mr. Morris Linton
Staff Present:
Ms. Lisa Watts Baskin,
Executive Director
Mr. Jerry Howe,
Research Analyst
Ms. Wendy Bangerter,
Secretary
Note: A list of others present and a copy of materials distributed in the meeting are on file in the Office of Legislative Research and General Counsel.
1. Farewell to Rep. Frank Pignanelli
Chair McKeachnie expressed appreciation to Frank Pignanelli for his service on the Constitutional Revision Commission. He presented a plaque and invited all present to join for breakfast rolls and juice where they would have an opportunity to say farewell to Mr. Pignanelli.
Mr. Pignanelli expressed gratitude for having been able to serve on the commission, to become acquainted with its members, and to share in the accomplishments of the commission.
2. Call to Order and Approval of Minutes
Chair McKeachnie called the meeting to order at 9:15 a.m.
MOTION: Vice Chair Sullivan moved to approve the minutes of the April 11, 1997 meeting.
3. Local Government Article
Presentations and Q/A on the roles and powers of local government
Mr. Ted Wilson, Professor, Hinckley Institute of Politics and former Mayor of Salt Lake City, distributed a memo and discussed issues relating to the roles and powers of local government. He recommended that the commission consider:
Article XI, Sec 4 - Placing Initiatives on a Ballot to Change the Form of Government
Mr. Wilson recommended that there be a process of citizen input such as a citizen study committee before an initiative is placed on a ballot. He stated that citizens need a real mechanism to participate in government.
Article XI, Sec 5 - The Cumbersome Process for Granting City Charters
Mr. Wilson stated that it would not conflict with the goals of state law if a county were given an opportunity to create a charter. He stated that the two-step process of creating a charter is too cumbersome and antiquated. He therefore recommended eliminating the election requirement to study local charters but retaining the requirement of a public vote before a charter and new form are adopted.
Article VI, Sec 28 - A City Government Cannot Delegate Authority Away From Elected Officials
Mr. Wilson cited UTA as an example of an appointed entity which is allowed to govern itself without direct responsibility to elected officials. He recommended the elimination of appointed entities such as the UTA and placing them under elected authority. In response to Chair McKeachnie's question whether all other independent entities, such as special service districts, should also be eliminated, Mr. Wilson stated that they too should be accountable to elected officials. He stated that appointed officials have popular sovereignty without popular control, which violates the principles of democratic government.
Rep. Harward suggested that there might be a way that a city council or some other body of elected officials could be given authority to veto special district actions for example rather than requiring so many elections.
Sen. Hillyard suggested that the taxing power of an appointed or non-elected board could be initially established by a vote of the people and then reviewed periodically.
Article XIII, Sec 2 (6) - Sales Tax Exemption for Electrical Power-Producing Companies
Mr. Wilson stated that the sales tax exemption for electrical power-producing companies represents a subsidy to agriculture interests at the expense of local governments. The cost of the subsidies are passed on to the taxpayer, he said, which is unfortunate because local governments are often required to provide infrastructure and other services for the generation of electrical power. He stated that the federal government is in the process of deregulating the power industry and comparative pricing will further complicate this issue. He also noted that as competition is restored to the power industry, the state has a responsibility to ensure a smooth transition. He recommended that this article be reviewed carefully.
Article XIII, Sec 5 - Power to Access and Collect Taxes
Mr. Wilson stated that local governments need more flexible taxing authority. He explained that because many local governments in Utah are unique, the state's control of local taxation causes some inequity among local governments. He said that popular control provides the needed check so it unnecessary to encourage local dependence on state government.
Rep. Harward asked if a study had been done regarding the benefits of business in a city vs. the cost of serving the needs of people who simply come to the city to work. He noted that the easiest tax to raise in Utah is the one that impacts the out-of-state user, (e.g. rental cars and hotels), and asked what would prevent cities from raising those taxes?
Mr. Wilson responded that even though business provides a tax base, it does not offset the cost of services for large populations coming into the city to work. He noted that in 1983, the sales tax compromise bill transferred revenues from central cities to other cities by using a sliding formula. He mentioned that businesses influence how taxes are raised for the out-of- state user, but there needs to be a positive incentive for local governments to create an urban workplace, he said. A complete study of local government taxation would help provide important information on this issue. Perhaps the Utah Association of Counties would welcome an opportunity to present their views, he added.
Mr. Wilson also explained Dillon's Rule by stating that a local judge in Iowa decided that the Legislature is the mother government and has the power to make law and that municipalities and counties must only legislate in a consistent manner with state law. He recommended an article in the mailing packet to the commission authored by the Advisory Commission on Intergovernmental Relations and discussed the implications of State v. Hutchinson, 624 P.2d 1116 (1980) where the Utah Supreme Court gave the county more authority to write a law on campaign contributions.
Article XVI, Sec 6 - Eight-hour Workday
In his written comments, Mr. Wilson stated that this language was outdated and ineffective.
General Recommendations
Mr. Wilson stated that the commission form of government is antiquated because, without a clear separation of powers, it is confusing.
Chair McKeachnie stated that Dillon's Rule has been modified by the Hutchinson case and asked why Utah would need a constitutional home rule provision. He stated that the current provision is confusing on what charter cities can and cannot do under state restrictions.
He said that the trouble with Hutchinson is that it is unclear how broad the case may be applied. It would be much easier, he said, to draft a provision containing Hutchinson principles.
Chair McKeachnie asked Mr. Wilson for his opinion regarding what areas should the constitution place restraints and what areas should the local governments have more authority?
Mr. Wilson responded that the taxation question and how Dillon's Rule is used in Utah would be exceptional studies to undertake and that reliable information on those issues could be invaluable to state and local government relations.
Mr. Brian Farr, Assistant Attorney General, prefaced his comments by stating that local governments deal with issues closest to the people and as such have difficult choices to make. Over the time he has investigated local governmental issues, he expressed respect for the individuals, both the elected officials and their staffs, who work in this difficult area.
As requested, Mr. Farr identified the following examples as typical of the complaints he receives:
Heavy-handed exercise of power by local officials:
. Takings - Sometimes a city has its vision for a particular piece of property which may not coincide with the property owners vision;
. Abuse of planning and zoning powers - Some cities change planning and zoning regulations in order to get a particular subdivision approved, or to slow down development, or the city does not require, in certain circumstances, compliance with zoning laws;
. Public funds used for political purposes - The city may inform and even support a bond
election or other political agenda through notes on water bills or through a city
newsletter;
.
Attitudes of city officials - Sometimes proper procedures are not followed for road closings and other inconvenient decisions.
Insider Dealing:
.
Some local officials have used their positions to benefit themselves, their family, and their friends. (e.g., hiring relatives, deals with developers, planning city improvements
that directly benefit city officials).
Fees:
.
Imposing fees to generate revenue beyond what is needed.
New Taxes/Assessments:
.
Special service district assessments create a hardship, especially for senior citizens and others on a fixed income.
Excessive traffic fines in small towns.
County option art tax.
Access and open government issues:
.
Noncompliance with open meetings law;
.
Noncompliance with
GRAMA;
.
Inability to gain access to the city council or obtain time council meeting agenda;
.
Denial of equal access to procurement of city projects.
Public Trust:
.
Custodial management of city property - city-owned property being sold below fair- market value;
.
Cities not addressing drainage or other problems.
Business development activities.
In fairness, Mr. Farr stated that cities are limited in their resources, often request home
rule, and express concern over unfunded mandates, distribution of taxes, and water-law issues.
Mr. Farr explained that his office is attempting to provide:
.
A more friendly forum that is accessible to citizens where they can address and resolve their disputes;
.
A forum where fees which seem excessive can be challenged;
.
Education to local officials concerning their responsibility to open government;
Possible language to heighten the requirements of the oath of office.
Mr. Jack Crellin, Former Assistant Attorney General and Salt Lake City Attorney, stated that the Attorney General's office once provided written opinions when local governments
were at issue. The federal government, with unfunded mandates, has forced local governments
into deficit financing, he said. He also noted that when the five-member commission was
organized, it would hear the people's issues, refer them to the appropriate agency which then
made a recommendation in writing. If the county commission form of government is not
working, it is not because the system itself is ineffective, he said.
Mr. Crellin encouraged the commission not to ignore the lessons of history when proposing
amendments to the constitution, citing an example of an attempt to provide for emergency
powers in the early 60s. He discussed problems with the Gateway amendment, which allows
more than one provision of the constitution to be amended at a time. He encouraged the
commission to fully research changes before proposing amendments.
Mr. Steven Allred, Utah League of Cities and Towns, explained that Utah has 230 municipalities ranging in population from 170,000 to less than 100. Within this large range of
population, he said that Utah municipalities are urban and rural, some have a daytime population
more than double its nighttime population while other municipalities have significant population
increases during specific seasonal times of the year. In short, Utah municipalities are unique in
many ways, he said.
One significant question Mr. Allred posed to the commission was whether or not Utah will
continue to produce and preserve its unique cities and towns. Someday, he said, many of the
distinct characteristics that make our state interesting may disappear. And, although it may be
easier to administer a group of cities that are all identical, Mr. Allred said that it is more
important for a city to maintain its own cultural identity than for each city to provide the same
services, under the same form of government, enforcing the same ordinances, with the same tax
structure.
Mr. Allred explained that cities are struggling under the responsibility to manage incredible
growth. This responsibility, he said, can either be facilitated or frustrated by the action of the
Legislature. Generally speaking, he said, the Legislature has provided necessary discretion to the
municipalities, but not always. At times, the Legislature has limited the ability of local
government to respond to the needs of its residents. For example:
1993 - Municipalities were prevented from amortizing billboards as non-conforming use
although this avenue still exists for any other non-conforming use.
1994 - A moratorium was placed on the adoption of weapons ordinances for one year.
1995 - Municipalities were prevented from adopting stricter weapons ordinances that what were
adopted statewide.
1995 - Municipalities were prevented from imposing impact fees on new development
1996 - Photo radar was effectively eliminated
Mr. Allred said that when the Legislature exercises its authority over a municipality, it is
often done under the concept of Dillon's Rule, which is the notion that cities have only those
powers specifically delegated to them by the Legislature. Utah cities are vested with considerable
constitutional authority (he referred the commission to Article XI, Sec. 5, Article XII, Sec. 8, and
Article VI, Sec. 28), and as such, cities do not rely upon the Legislature for all of their powers.
The constitution, he argued, specifically prevents the Legislature from creating cities. Instead, he
said, the constitution specifies that the Legislature's function is to provide for the incorporation,
organization, and classification of cities. Cities are therefore created by the will of the people and
not an act of the Legislature. Taken with the Hutchinson case, this seems to argue that cities have certain inherent powers necessary to good governance which are not contrary to state-wide
interests.
In summary, Mr. Allred recommended that the commission consider:
.
the language in the library section regarding non-elected boards and commissions as a model;
.
the reluctance of cities to tax when they want to attract business;
.
separation of powers as a fundamental principle of our democracy. He noted that it is unfortunate that some local governments still appear to have separation but do not;
.
the importance to preserve an option for a charter, which thus creates a check and balance;
.
the immense growth that cities are handling which can be facilitated or frustrated by the Legislature.
Vice Chair Sullivan asked if there are constitutional limitations on municipalities' powers of
taxation, referring to Article XI, Sec. 5(a) and asked what is the right balance?
Mr. Allred stated that Article XI provides that cities may levy taxes as provided by general
law, which is self-limiting. He said that there are concerns that need to be dealt with on a
statewide basis, but there should be a presumption favoring local autonomy and the Legislature
rebut that presumption with reasonable findings before they override a municipality. He stated
that the ideal constitutional balance between the local taxing authority and the power of the State
is that local fiscal decisions ought to be decided by cities and towns, only to be preempted by the
Legislature upon significant findings of statewide interest. Cities are created by the people, he
said, while counties are created by statute. He emphasized that the ultimate check and balance on
local government is not the Legislature, it is the ballot box.
Mr. Allred suggested that the commission study the charter provisions, clean them up, but
retain them and provide local autonomy with necessary safeguards. He reaffirmed that many
cities are distinctive enough that they need a government customized for their particular needs.
He reiterated the notion that the presence of the charter provision provides a check against
Legislative domination of local issues.
Dr. White noted that the charter cities are still subject to general state law.
Mr. Allred stated that charter cities should become effective charter cities. In answer to a
question from Rep. Harward, he stated that cities have an ongoing process, regardless if they are
charter cities or not, to continually review and change laws as state and federal laws evolve.
Mr. Gavin Anderson, Deputy County Attorney, Salt Lake County, representing the Utah Association of Counties (UAC), requested that Mr. Brent Gardner be excused because of other
commitments. He stated that Mr. Gardner has not had UAC leadership together to study these
issues so he did not send any specific recommendations but would provide a memo at a later
date. Mr. Anderson then addressed some general concerns that UAC would like the commission
to consider:
The controversy between Dillon's Rule and the Hutchinson decision:
.
The principles of the Hutchinson case should be amended into the constitution because they believe it is the rule under which most local governments are operating;
.
Even under Hutchinson, the Legislature would retain ultimate control over local governments;
.
Urban/rural differences need to be recognized.
The development of municipal services in unincorporated areas are becoming state-wide issues.
.
Procedures for optional forms of government are cumbersome and the choices are complex and limited.
Taxation:
.
Uniform Taxation. Art XIII, Sec. 2 provides that all taxes should be levied uniformly. This creates the need for "special service districts" because one area cannot even vote to
be taxed at a higher rate in order to receive a service. County and city officials are often
blamed for the problems of special service districts.
Revenue sharing between local governments:
.
He urged the Legislature to consider vertical revenue sharing.
Mr. Anderson expressed hope that they could be part of future discussions to address charter
counties, county boundaries, and county seats.
Ms. Baskin stated that the commission membership announcements have appeared in all the major newspapers in the state and the selection process will begin soon with recommendations
from the selection committee to be submitted at the June 20, 1997 meeting. She announced that
the July meeting will be held in Logan. She also announced that the perdiem for the
Constitutional Revision Commission has been raised to $100.
At 12:05 p.m., Chair McKeachnie adjourned the meeting.
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