Utah’s attorney general is fighting to keep legal opinion secret on 3rd District election

Written opinion on process that led to a rift between governor and legislators withheld after someone raised ethics concerns.

FILE - In this March 10, 2016, file photo, Utah Gov. Gary Herbert speaks during an interview in Salt Lake City. Organizers of a lucrative outdoor trade show that's been held twice yearly in Utah for two decades say they will continue looking for a new home after hearing "more of the same" on public lands from Herbert during a conference call Thursday, Feb. 16, 2017. (AP Photo/Rick Bowmer, File)

The Utah attorney general’s office continues fighting to keep out of the public eye a written legal opinion it prepared for the Legislature — then withheld citing ethical concerns — on Gov. Gary Herbert’s unilateral action setting rules for the special election to replace former Rep. Jason Chaffetz.

The Legislature, angered by the action this summer, later decided to let the matter drop so as not to undermine the ongoing election to fill the midterm vacancy left by Chaffetz, who resigned June 30 for a job at Fox News.

But The Tribune sought the opinion under state open-records laws and appealed when the AG’s Office twice denied the request. The matter is set for a hearing Thursday before the State Records Committee.

Lawmakers in May requested the AG’s opinion after their own attorneys, in the Office of Legislative Research and General Counsel, accused Gov. Gary Herbert of overstepping his executive authority by setting up the special election process and timeline.

Attorneys working for Atty. Gen. Sean Reyes prepared the opinion, informed lawmakers it was completed, then pulled back and never provided the document, saying that to do so might constitute an unethical conflict of interest with the office’s duties to advise Herbert.

According to a newly disclosed May 30 letter from Spencer Austin, chief criminal deputy to Reyes, attorneys feared they would be punished under rules from the Utah State Bar if they advised both Herbert and lawmakers on the replacement issue.

“Questions arose last week about whether the Attorney General’s Office could respond to your request and still comply with its ethical duties under the Utah Rules of Professional Conduct,” Austin wrote in the letter to legislative leaders that was included in arguments submitted to the State Records Committee. He added that the office sought advice from the Utah State Bar and was informally told it would be a “50/50 chance” the arrangement would represent a conflict.

“As I’m sure you appreciate, the Office cannot tolerate those odds. The citizens of Utah — and you as their representatives — deserve better than an Attomey General’s Office willing to commit an ethical violation on a coin flip’s chance,” Austin wrote.

The letter didn’t say who raised the ethics questions, and Dan Burton, a spokesman for Attorney General Sean Reyes, did not respond to a request for comment Tuesday.

House Speaker Greg Hughes, House Democrats and a nonpartisan legislative attorney said in June that they’d heard the governor’s attorneys had threatened ethics actions against the assistant attorneys general if they released the legal opinion drafted for the Legislature, a claim the governor’s office denied.

“The Governor has gone so far as to threaten to file a complaint with the Utah State Bar against the Attorney General or any member of his office who provides a legal opinion on these issues to the Legislature,” House Democrats wrote in a June 20 post on the topic.

Paul Edwards, the governor’s spokesman, reiterated his denial that his office filed a complaint or threatened ethics sanctions.

Instead, he said Tuesday, the governor’s counsel joined the attorney general’s office in contacting “the Utah State Bar Office of Professional Conduct for ethical guidance on the potential conflict of interest raised in this instance. … Having both sides together seek guidance prospectively on a complex code of conduct issue is far different than someone suggesting the need for disciplinary action. I stand by my prior statement.”

A message left Tuesday by The Tribune for Hughes was not returned.

When legislators last summer were actively pushing back on the governor’s action in establishing special-election procedures, they were bipartisan in agreement that only the Legislature had such power and openly worried the election could be successfully challenged in court.

Several Republican lawmakers had expressed interest in having party nominees selected through a party convention without the ability to get on the primary ballot by collecting signatures. But Herbert set up rules mirroring that of other elections, allowing signature gathering by candidates.

As it turned out, Provo Mayor John Curtis, who was defeated in the Republican Convention by former Rep. Chis Herrod, qualified for the primary by collecting signatures and convincingly won it.

Curtis is the Republican nominee and front-runner in the 3rd District election, polling well ahead of Democrat Kathie Allen and third-party candidates in the race.

The AG’s Office continues to fight to prevent the release of its legal opinion on the election procedures, arguing it is protected because it was prepared in anticipation of litigation and that it was a draft.

The Tribune argues that neither claim holds up to scrutiny and that the document should be released to the public.