Utah Attorney General Sean Reyes’ office is continuing its fight against public disclosure of a legal opinion on this year’s special congressional election — accusing the State Records Committee of an “improper” conflict of interest.
The office, in an appeal to 3rd District Court, asks a judge to overturn a State Records Committee order to turn over the opinion to The Salt Lake Tribune, which has sought the document since June under Utah’s open-records laws.
Reyes’ top lieutenants argue in the appeal filed Tuesday that bias — or at least the appearance of it — tainted the committee’s 6-0 decision. They noted that the order was signed by Holly Richardson, a five-year veteran of the committee, who also writes opinion columns for The Tribune.
“The committee’s decision is improper because its author is an employee of The Salt Lake Tribune who resolved the dispute in favor of her co-employee at The Salt Lake Tribune and their mutual employer,” the attorney general’s office argued. “The decision-maker’s financial relationship with the [newspaper] in whose favor she ruled imbues the decision with the appearance of bias.”
Richardson and The Tribune both disputed the allegation.
“The attorney’s general’s objection about Richardson’s participation is belated and suspect,” said Tribune attorney Michael O’Brien. “The A.G.’s office was represented at the committee hearing by an assistant A.G. who did not object to Richardson’s participation. The committee was advised by another assistant A.G., who also did not object.”
Richardson noted the order was actually written by Assistant Attorney General Paul Tonks, who represents the committee. She said she would not have recused herself if she had it to do over again, saying “there’s no question in my mind that the decision would have been exactly the same whether I was there that day or not.”
Noting that she is an independent contractor for the newspaper, she added, “I have a contract that says I cannot call myself a Salt Lake Tribune employee.”
“I really don’t see it as a big conflict,” said Richardson, who was appointed by Gov. Gary Herbert as a public representative on the committee. “They put me on that committee because I have strong opinions about transparency.”
Even as it filed its appeal, the attorney general’s office held out the prospect that Utahns ultimately will get to see the legal opinion on whether the governor legally set rules for the special election that resulted in Rep. John Curtis being seated in the U.S. House.
“We believe the public should see this at some point,” office spokesman Dan Burton said. “We need to cross our t’s and dot our i’s with our client.”
“Once the governor has waived [attorney-client] privilege on the matter, then we don’t have any problem releasing [it], and we think the public should see it at that point,” Burton said. “I don’t know how close the governor is to doing that.”
Gov. Gary Herbert’s office has been in discussions with legislative leaders about releasing the legal opinion. That attorney general’s opinion had been requested by the Legislature in May, soon after Herbert and Lt. Gov. Spencer Cox set rules and timelines for the special election to fill the seat being vacated by then-Rep. Jason Chaffetz.
The opinion was drafted and was about to be delivered to the Legislature — which believes the governor overstepped his authority — when the executive raised objections about attorney-client privilege and conflicts of interest.
Herbert points to the Utah Constitution’s mandate that the attorney general provide legal advice to the governor and other executive officers. But Utah statute also requires that the attorney general “shall” provide legal opinions requested by the Legislature.
The Legislature believes the legal opinion is a public document.
Negotiations have been underway between the governor’s office and legislative leaders about the document. Herbert spokesman Paul Edwards said he could not provide any time frame for an agreement.
“We would be hopeful that there could be a resolution soon,” he said.
Edwards said the governor actually doesn’t care what the legal opinion says — only about preserving his unfettered ability to “rely on the attorney general’s office for competent legal counsel.”
“We think it’s very important to preserve and maintain the appropriate separation of powers and we see this as a very fundamental issue,” said Edwards. The governor doesn’t want a future Legislature to be able to use an attorney general’s legal opinion as a “tactical tool when there are the normal kind of political disputes.”
“We don’t think [the request for a legal opinion on the congressional election] was done in a nefarious way to conflict someone out,” he said. “[But] we want to avoid anything like that in the future.”
The State Records Committee, made up of a mix of government and private representatives, ruled unanimously Oct. 12 that the public interests in the attorney general’s special-election legal opinion outweighed the privacy interests.