Utah Constitutional Revision Commission

Delaware, whether that allowed the Legislature to establish whatever powers for local governments it deemed necessary. Mr. Rees explained that if a constitution is silent or if it affirmatively grants authority to the Legislature, the effect would be substantially the same because the Legislature is presumed to have all governmental powers not limited by the state constitution.

    Another question raised at the last meeting was whether any Utah statutes would need to be changed if the state constitution contained a Hutchinson-type provision granting broad authority to cities and counties subject to legislative limitations. Mr. Rees explained that the answer can be boiled down into two categories. The first category contains statutes that clearly restrict the powers of cities and counties. These statutes would not be affected by a Hutchinson- type provision because the provision itself would allow the Legislature to restrict local governmental powers as it deems necessary. Existing restrictions would be viewed in this context, he said, and would not need to be changed.

    The second category, however, contains statutes which affirmatively grant power to local governments. Under Dillon's Rule, local governmental powers must be affirmatively granted by statute. Hence, the impact of a Hutchinson-type constitutional provision on this type of statute is more suspect, he said. For example, if the intent of the statute was to grant authority to local governments, and the Legislature only wanted the grant of authority to extend to the scope of the statute and not beyond, then a statute currently viewed as a grant of power under a Dillon's-type provision may need to be redrafted as a restriction of power under a Hutchinson-type provision. Mr. Reese explained, however, that very few statutes would likely fit this criteria.

    Chair McKeachnie explained that counties and cities are thought to differ in that cities originate through grassroots efforts while counties are creatures of the state. He asked whether that distinction is still meaningful.

    Mr. Rees said that Hutchinson is a county case although its holding would probably apply cities. Traditionally, counties and cities have been viewed differently, as noted, but whatever distinction once existed between them has been blurred over time, especially since the Legislature authorized counties to provide municipal-type services.

     Dr. White noted that the commission needs to exercise caution when discussing cities and counties because cities and counties have recently been treated as though they should be the same kind of entity, although some major differences need to be preserved.

    Chair McKeachnie said that counties are the primary provider of social service types of services, yet these services account for the greatest number of special districts in the creation of health districts, mosquito districts, and water districts.

     Mr. Brent Gardner, Utah Association of Counties, mentioned that as public opinion has been surveyed, it has been shown that the public has a hierarchical view of government: Federal, State, County, and City. The people, he said, expect the county to supervise cities. This misplaced notion makes it difficult for both the city and county, he said.

    Cities

    In reviewing the following draft alternatives, Chair McKeachnie stated that the commission must decide whether it would prefer to define in the constitution the current state of the law, or whether it would recommend granting additional powers to cities and counties. The commission was directed to Article XI, Section 7, cities _ powers, at page 17 of the packet.

    Alternative 1
            Each city and town shall have the power and authority to enact all ordinances, rules, and regulations, not inconsistent with or preempted by statute, as are necessary and proper to provide for the safety, health, morals, and welfare of its inhabitants.

    Alternative 2
            Each city and town is hereby granted full power and authority to pass laws and ordinances relating to its local affairs, property, and government, and no enumeration of powers in this constitution shall be considered to limit or restrict the general grant of authority hereby conferred. This grant of authority shall not be considered to limit or restrict the power of the Legislature to enact laws of statewide concern uniformly applicable to every city or town.

    Alternative 3
            A city or town may exercise any legislative power or perform any function not denied to it by this constitution or by its charter, if it has a charter, or inconsistent with or prohibited or preempted by statute. This grant of power does not include the power to enact private or civil law governing civil relationships, except as incident to an exercise of an independent city or town power, or to define and provide for the punishment of a felony of class A misdemeanor.

     Mr. Jensen asked whether the commission is willing to go beyond current law and grant cities and counties greater authority.
    
     Mr. Worthen stated that the first two alternatives more closely resemble current law, but the third alternative clearly goes beyond current law because one no longer has to ask whether this ordinance is necessary for the health, safety, general welfare, and morals, which one has to do under current law. The next step under current law is to question whether the ordinance is

inconsistent with some state statute. The first two draft alternatives require local governmental powers to be subject to both questions, while alternative three eliminates the first question, he said.

    Mr. Jensen noted that under either option, the Legislature will be preempted because it will no longer control, since the concept will be in the constitution.

    Mr. Jensen expressed concern regarding the granting of unrestricted fiscal authority to local governments.

    Dr. White said that a current statute states that no city may pass an ordinance dealing with the handgun issue. Under either of these alternatives, she said, this legislative authority would be preserved on any issue the Legislature feels strongly about.

    Mr. Rees said that if legislative power is granted to cities and towns, then it would be important to reflect that notion in Article VI, Section 1, which states that the legislative power is vested in the House, Senate, and People. One should consider whether this provision ought to indicate that legislative power is also vested in cities and towns.

    Mr. Worthen spoke in favor of granting broad local governmental authority. If this is done properly in the constitution, he said, then the court will not be in the position of always deciding local governmental law.

    Rep. Jones discussed the diversity that currently exists among Utah cities. Because the needs of these cities vary so greatly, it makes little sense to bind each city by requiring legislative permission for every situation. It would be much better, he said, to grant broad authority to cities, allowing the Legislature to regulate as problems arise.

     Sen. Beattie expressed concern of having the Legislature take away authority when a city oversteps its bounds. The Legislature, he said, has already given power to the cities, and it can take it away at any time.

     Mr. Blaine L. Carlton, Ballard, Spahr, Andrews, & Ingersoll, told the commission that municipalities issue revenue bonds without election. This is important to all municipalities, he said. The likely result of the elimination of Article XI, Section 5(d) would call into question this important practice. He suggested that language preserving this standard could be provided in Article XIV, Sections 3 and 4.

     Vice Chair Sullivan asked whether a statute affirming this practice would suffice. Mr. Carlton said this would be a less desirable solution.

    
MOTION:     Mr. Linton moved to consider other items. The motion passed unanimously.

    Moving to a discussion of charter cities, Mr. Linton said that Article XI, Section 8 has no practical significance, since it only applies to one city. Chair McKeachnie stated that under the current options, a charter city provision would not be needed.

    Mr. Worthen explained that the third alternative places more authority on the Legislature and less on the courts. Even under the third alternative, Mr. Jensen explained that the courts will continue to play an interpretive role. The concern, he said, is that cities will likely take an uneven approach as they look for means to generate revenue.

MOTION:     Sen. Nielson moved to adopt Alternative 2 after modifying the last sentence so as not to preclude the classification of cities. The motion failed.

    Chair McKeachnie asked the commission if it would like to consider other alternatives. By a show of hands, the commission decided to consider alternatives other than the three provided in the mailing packet.
    
    After a brief recess for staff to prepare new drafts, the commission discussed the following alternatives.

    Alternative 4
            Cities and towns may exercise only those powers granted by statute or reasonably implied from such powers granted by statute.

    Alternative 5
            Each city and town shall have the power and authority to enact all ordinances, rules, and regulations, not inconsistent with or preempted by statute, as are necessary and proper to provide for the safety, health, morals, and welfare of its inhabitants, except that a city or town shall have only such powers of taxation as are granted by the Legislature.

    Alternative 6
            A city or town may exercise any legislative power or perform any function not denied to it by this constitution or its charter, if it has a charter, or inconsistent with or prohibited or preempted by statute. This grant of power does not include the power to enact private or civil law governing relationships, except as incident to an exercise of an independent city or town power, or the power of taxation, or the power to define and provide for the punishment of a felony or class A misdemeanor.

    Vice Chair Sullivan explained that Alternative 6 is patterned after Alternative 3, but that it excludes the power of taxation. Alternative 5 grants authority to cities and towns to enact ordinances to provide for safety, health, morals, and welfare, but excludes the power to tax; while Alternative 4 reflects more of Dillon's Rule for cities and counties, providing that local governments may only exercise those powers granted by statute or reasonably implied from powers granted by statute.

    Vice Chair Sullivan further explained that on one hand, it does not seem appropriate for the Legislature to stifle innovative approaches to local governance yet, on the other hand, it does not seem appropriate to allow a narrow majority to take control of a city council only to wield all legislative power until the Legislature finds it repugnant. Each alternative comes with risks, he said. He explained an inclination to prefer Alternative 4, although the main concern with it is that bond lawyers may have construed the existing article to extend specific grants of authority to all cities generally, whereas we now construe it as a grant for only charter cities. It makes the solution problematic if bonds depend upon the opinion that the article grants authority to all cities, he said.

    Mr. Carlton expressed a desire to present the commission with how bond lawyers have perceived these issues.

    Pres. Beattie explained that a statutory grant of authority by the constitution to allow local governments to perform any function that is not inconsistent or preempted by statute actually allows the Legislature to pass a statute denying all local government power. It seems odd that a constitution could be thwarted in this way, he said.

    Rep. Jones acknowledged that it may not be wise to grant local governments the authority to tax. But in response to Pres. Beattie's concern, he said that it would be completely within the Legislature's prerogative to completely limit local government authority. It would also be within the rights of future legislative prerogative to grant substantial powers to local governments. That is the draw to the amendment, he said. The Legislature grants the level of authority to local governments it desires, but maintains control.

    Chair McKeachnie polled the commission regarding the concepts included in Alternatives 4, 5, and 6. The commission preferred Alternative 4 by two votes over Alternative 6, and no one supported Alternative 5. Mr. Worthen said that it is interesting that Alternative 4 sounds more like Dillon's Rule, even though the commission set out to establish a Hutchinson-type rule.

    Mr. Linton asked whether the commission still intends to recommend deletion of Article XI, Section 6, Municipalities forbidden to sell waterworks or rights. Chair McKeachnie explained that the commission voted to repeal this section last year and the Senate passed it but

the House did not. Unless the commission changes its position, it should go forward in this year's package for legislative consideration.

     Counties

    Mr. Rees explained the draft of Article XI, Section 1 and 2, at page 13 and 14 of the packet. Chair McKeachnie stated that the constitution is currently silent as to county powers. He questioned whether or not the constitution should contain provisions for counties similar to provisions for cities.

    Vice Chair Sullivan noted that the constitution's silence concerning governmental powers for counties is confusing. Mr. Jensen supported the idea that county and city powers should both be articulated in the constitution. Mr. Worthen agreed.

     Mr. Strong noted that the language in Article XI, Section 3, has not to his recollection, been approved by the commission. Mr. Howe confirmed that no minutes record commission approval of this language.

    By show of hands, the commission indicated that it would prefer an articulation of county powers in the constitution, although it would rather decide what powers to enumerate to counties after a decision is reached regarding cities. Chair McKeachnie indicated that these two issues, the powers of the cities and counties, will be discussed at the next meeting.

     Special Districts

    Chair McKeachnie referred the commission to Article XI, Section 9, special districts, at page 19 of the packet. Mr. Rees also distributed suggested language drafted by Michael J. Mazuran, Mazuran & Hayes, which the commission may want to consider.

    Chair McKeachnie suggested that special districts not continue with this designation and that the commission find another name, something more generic, because the term special district has become confused.

    Mr. Rees stated that these drafts contain the term political subdivisions but exclusions for cities, towns, counties and school districts. He noted, however, that political subdivision may also include any entity that is created by an interlocal agreement.

    Mr. Worthen noted that the term "arm of the state" is sometimes used to distinguish political subdivisions. School districts, for example, are an arm of the state, but are not political subdivisions.

     Mr. Rees explained that Alternative 1 is essentially the language from current Article XIV, section 8. Although some argue that Article XIV, section 8 is intended to apply not to all special districts but only to special service districts, Alternative 1 applies to all special districts and would allow them to provide only certain enumerated services and would require that they be governed by the county, city, or town that created them. The other restrictions of Article XIV, section 8 that arguably apply only to special service districts would, in Alternative 1, apply to all special districts.

    The second alternative, he said, uses the term limited purpose political subdivisions, which may be ambiguous. The term is intended to draw a distinction between general purpose political subdivisions_counties, cities, and towns_and limited purpose political subdivisions_special districts. He explained that the term is probably broad enough also to include entities created by interlocal cooperation agreements.

    The third alternative is similar to the second but uses the terms "political subdivisions of the state, other than counties, cities, towns, and school districts." That terminology may be more clear than that used in the second alternative.

    Mr. Carlton expressed concern with alternative one because special districts are too broad and diverse to be treated generically.

    Mr. Linton expressed concerns over the proliferation of districts, the lack of regulation on districts, and the financing and taxing powers of districts. For these reasons, he supported the recommendation that all special districts be treated the same under the law. The proposal drafted by Mr. Mazuran, he said, suggests the Legislature may authorize the creation, dissolution, governance, and regulation of special districts, which seems to be on point.

    Mr. Worthen supported the idea of combining elements of Alternatives 3 and 4.

MOTION:    Mr. Worthen moved to adopt Alternatives 3 and 4, substituting the term "special districts" in Alternative 4 with "political subdivisions, other than counties, cities, towns, and school districts." The motion carried.
    
    Vice Chair Sullivan stated that Article XIV, Section 8, contains organizing language that should be transferred to Article XI.

     Mr. Mark H. Anderson, Nielson & Senior, stated that Article XIV, Section 8, has, by the special district community and by the bond counsel community, been interpreted as applying solely to special service districts, or in other words, dependent districts.

    Mr. Rees noted that the proposed language also applies to political subdivisions.    

     Uniform and Equal

    Mr. Rees told the commission that a memorandum found at page 24 of the packet, entitled "Property Tax - Uniform and Equal Issues" outlines items of discussion for a future meeting.

    The commission adjourned at 11:45 a.m.