Gov. Gary Herbert says it is unethical for the attorney general to represent both him and the Legislature when the two are in conflict, as they are currently on whether Herbert overstepped his authority in setting rules for the 3rd Congressional District special election.
So he said Thursday that he actually applauds legislative leaders for deciding to sue over the matter — seeking to force release of a secret attorney general’s opinion about the election — so it may give “certainty and clarification of the law.”
“It doesn’t mean we’re not working well together. It means there’s an honest difference of opinion,” the governor said during his monthly news conference on KUED-TV.
“I don’t care what’s in the opinion. It’s just an opinion. It may be good. It may not be good” Herbert said, adding that no one outside the attorney general’s office knows what it says, and which side it favors.
“What we are concerned about is under our constitution, the attorney general is required to be my legal counsel,” Herbert said, adding he consulted with the office as he planned the procedures and timelines for the election to replace former Rep. Jason Chaffetz because the law was silent on them. Legislators wanted him to call a special session so they could enact rules.
Another decades-old law requires the attorney general, as part of his regular duties, to prepare and provide written legal opinions requested by the Legislature. Lawmakers did just that on the election question, but Attorney General Sean Reyes chose not to release the opinion after the governor’s office raised questions about conflict of interest, and the Utah State Bar said a 50-50 chance exists that release might violate ethics rules.
Senate President Wayne Niederhauser said the attorney general’s office said it had set up an “ethics wall,” so that separate lawyers worked for the governor and Legislature on the matter. Therefore, Niederhauser said, the office had no conflict of interest.
“The code of conduct is clear,” he insisted. “You can’t represent somebody and then create a conflict with somebody else where you have to serve two masters.”
The governor added, “That’s something the attorney general cannot just waive. Under the professional code of conduct, they cannot just waive conflict. So there is a legitimate issue here that maybe the courts need to decide.”
Herbert said, “The truth is nobody knows for sure until we probably test it in court. We’ll probably do that.”
However, the governor’s office, Reyes and legislative leaders are discussing a possible resolution outside of court.
Legislative leaders have also said they may drop their lawsuit if Reyes complies with an order from the State Records Committee to release the opinion to The Salt Lake Tribune. His office said it hasn’t decided whether to appeal to court despite Herbert’s encouragement to sue.
The governor touched on several other topics during his news conference, including calling President Donald Trump “erratic,” saying it may be time for Sen. Orrin Hatch to retire (but the decision is up to him), and discounting fears that energy development could occur in the Bears Ears area if a national monument there is erased or shrunk.
Asked how he would assess President Trump’s performance during his 10 months in office, Herbert said: “Erratic.”
He praised many of his appointments and for creating dialogue about public lands. But, “he has a hard time, I think, not addressing a thousand issues when he ought to be focused on five…. He could sharpen his game a little bit by focusing more on more important issues, and just let the others slide.”
He added, “Running a government is different than running a business…. It’s not a dictatorship. You can be the boss of a company, and pretty well what you say goes. He’s got to get along with some other pretty strong personalities…. That’s a skill set he’s working on.”
After a new Salt Lake Tribune/Hinckley Institute of Politics poll showing that 75 percent of Utah voters say Hatch should not seek an eighth term, Herbert said Hatch “needs to make that decision himself. He’s served with distinction for over 40 years.”
But Herbert said, “I think it is time to make a change, and the senator has not [said] whether he is running or not, so I think people are starting to say, ’Well if he’s not I better start ramping up….’ I suspect there will be challengers.”
The governor said the Bears Ears area, if the monument is shrunk or erased, is not really “a place to develop energy. I don’t think there’s that much energy down there.”
He said public lands there ought to be protected and preserved as public, whether it is through a monument or other means. “They were already doing that, by the way, before the monument was created.”
He added, “There’s no desire on my part, and I think our energy department, to say let’s open this up for energy development. There’s no energy there to develop.”
That description of the area clashes with a 2015 law passed by the Legislature and signed by the governor that designated the “San Juan Energy Zone“ covering much of what became the Bears Ears National Monument.
The legislation said the lands there contain “abundant world-class deposits of energy and mineral resoures, including oil, natural gas, potash, uranium, vanadium, limestone, copper, sand, gravel, wind and solar.”