A state school board member who was booted from office by a committee’s secret vote is suing the governor and others, saying the process of selecting board candidates was done illegally and is unconstitutional.

Denis Morrill filed the lawsuit Wednesday in 3rd District Court against Gov. Gary Herbert, Utah Attorney General Mark Shurtleff and the nominating committee tasked with helping narrow the field of candidates for state school board.

Morrill, a 10-year incumbent from Taylorsville, had hoped to run for re-election to the state school board District 9 seat. But the nominating committee voted, initially by secret ballot, not to forward his name to the governor for consideration earlier this year. His lawsuit alleges the committee violated the state’s Open and Public Meetings Act, that committee members improperly based their decision partly on candidates’ policy positions, and the whole process by which state school board candidates are selected in Utah is unconstitutional.

“This is an unfair system, and the way they did it was unfair and not in compliance with the law,” Morrill said. “I do think the law itself is not constitutional.”

The law requires the governor to appoint a committee of 12 people representing education and industry interests to recruit school board candidates and choose at least three for each open board seat to forward to the governor. The governor then chooses two of those candidates for each seat, by Aug. 1, to appear on the November ballot.

Despite the lawsuit, Herbert plans to choose two candidates for each open seat by Monday, said Angie Welling, a spokeswoman for the governor. She said the statutory deadline is extended by one day because Aug. 1 falls on a Sunday this year.

“He has reviewed resumes and other background materials on the candidates, and, in some cases, will conduct interviews to make his final selections,” Welling said Wednesday.

Morrill’s attorney, David Irvine, said he’s not planning to file a motion for an injunction to stop the governor from choosing candidates before Monday, but he could file one after the candidates are chosen to try to keep them off the ballot.

“Anybody who gets named as a candidate now has to worry that his or her election may be improper and set aside,” said Alan Smith, another attorney for Morrill. “Really what they’ve done is to cast a pall of uncertainty over the whole election process.”

Irvine said he believes that, ultimately, if a legitimate election can’t take place, state law allows board incumbents to remain in their seats until they can be replaced through a legal process.

Morrill sent a letter to the Utah Attorney General’s Office in May, asking it to void the committee’s May 19 vote. In that letter, Morrill said the committee violated the open meetings law by voting by secret ballot. The results of that secret ballot were revealed after the Tribune filed an open records request.

The Attorney General’s Office sent letters last week to committee co-chairs Gayleen Gandy and Chris Sloan confirming that “it does appear your committee did not strictly comply with the Act” partly because of issues related to how it closed the meeting to deliberate before taking a vote. That office has told Gandy and Sloan they may sign affidavits stating that they closed the meeting for allowable purposes, but so far, neither co-chair has signed.

Sloan said he’s waiting for further advice from counsel before deciding whether to sign. He said he believes the committee “acted under the guidance of counsel at the time and did what we understood to be the right thing to do.”

Gandy said she sees no reason to sign the affidavit. She voted against the use of secret ballots at the May 19 meeting but was outvoted.

“It was very clear before the May 19 meeting ever ended that we were in violation of the law,” Gandy said. She also said the Attorney General’s Office asked her if she’d be willing to reconvene the committee.But she said she would only be willing to do that if all 12 members could be present, which is unlikely.

Paul Murphy, a spokesman for Shurtleff, declined to comment on the letters or affidavits, saying they’re still part of an “unfinished investigation.” He also said it’s too early to comment on the lawsuit.