State lawyers argue Utah County, not Gov. Herbert, violated law about appointing new UTA board nominees

(Steve Griffin | The Salt Lake Tribune) A TRAX train turns the corner on 200 south 400 west in Salt Lake City Thursday April 26, 2018. Because of complaining about noise there by UTA Board member Babs DeLay, UTA has been manually greasing the tracks there every three hours and ordered trains to cut their speed.

While Utah County is suing Gov. Gary Herbert contending that he is violating state law by refusing to appoint either of its two nominees for the new Utah Transit Authority board, the state now says the county is the one not following the law.

In court filings, the state says Utah County failed to consult with neighboring Tooele County on nominees as required; was oblivious to “a tsunami” of opposition to the pair as unqualified; and a nominee unofficially lost support of the Utah County Commission when one of two commissioners who voted for him withdrew support.

The state also argues the county is trying to undermine the long-established power of a governor to appoint only people he supports, and is trying to “override the governor’s conclusion that Utah County’s nominees were not fit for appointment.”

That came in a 103-page response by the Utah Attorney General’s Office to a petition filed by Utah County asking the Utah Supreme Court to force Herbert to appoint one of the county’s two nominees.

After years of scandals at UTA, the Legislature this year restructured the agency — including replacing its former part-time, 16-member board with a full-time, three-member commission seen as better able to oversee the agency.

The new law gives Utah County (in consultation with Tooele County) power to nominate to the governor two or more people for a seat on the new board. Other members were nominated by Salt Lake County, and Weber and Davis counties (in consultation with Box Elder County).

Herbert has appointed the two board members nominated by other counties — Carlton Christensen and Beth Holbrook — who took over UTA earlier this month. The Utah/Tooele county seat remains vacant. Utah County’s petition says that amounts to taxation without representation for its citizens, and has urged the court to vacate actions by the board.

But the governor said Utah County’s two nominees were unqualified. They are Pleasant Grove City Council member Ben Stanley, an attorney, and former Cedar Hills City Council member Rob Crowley, an accountant.

In court filings, the state said that the pair’s nomination created a “tsunami of negative feedback” to the governor’s office. For example, Cedar Hills Mayor Gary Gygi wrote in the Provo Herald that the two are little more than political allies of Utah County Commissioner Bill Lee, and he questioned their qualifications.

Eagle Mountain Mayor Tom Westmoreland wrote to Herbert that the nominees “both have brief, lackluster city council experience in small cities. Both will be looking to make a name for themselves by stirring things up.”

Among others urging their rejection were Cedar Hills Mayor Jenny Rees, Orem Mayor Richard Brunst, Pleasant Grove City Council members Eric Jensen and Todd Williams, and the Silicon Slopes organization, court filings show.

Amid that opposition, Herbert’s office asked the Utah County Commission to send additional nominations — just as Salt Lake County did after Herbert rejected its initial nominees. “But Utah County wouldn’t budge,” court papers say.

So on Aug. 31, Herbert formally declined to appoint either Utah County nominee, and asked it to work with locally elected officials to nominate others. Earlier this month, the commission chose instead to sue Herbert.

The state also says Utah County failed to consult with Tooele County about nominations as required. Court filings include a letter from the Tooele County Commission saying it was unable to interview most applicants, and its one recommendation was ignored — and contended it was not truly consulted.

Gov. Gary Herbert addresses the media on Sunday, Nov. 4, 2018, in Draper, Utah. Military officials say a major in Utah's Army National Guard who was also the mayor of a city north of Salt Lake City was killed in Afghanistan after being shot by a member of the Afghan security forces. They say North Ogden Mayor Brent Taylor was in the country to train Afghan commandos and was shot Saturday, Nov. 3, 2018, by one of the trainees at the Kabul military training center. The attacker was then killed by Afghan forces. (Francisco Kjolseth/The Salt Lake Tribune, via AP)

The state also notes that in an Oct. 1 email to the governor’s office, Utah County Commissioner Greg Graves — who voted with Commissioner Lee for the pair of nominees, while Commissioner Nathan Ivie opposed them — said he decided to withdraw his support from Stanley, one of two nominees.

So, he wrote, “there is no consensus from the nominating body anymore” for him.

But in a confusing move, Graves testified in an affidavit this week that the commission has taken no formal action “to revoke, alter, or amend” its appointments.

The state argued that shows the county is making a mess of the facts in the case, and that alone should be reason for dismissal of its lawsuit.

The state argued that the law does not compel Herbert to nominate anyone he feels is unqualified, and the Utah County Commission could end controversy by working with local officials to nominate new, qualified people.

“The ball is in Utah County’s court — not this court,” the state argued, urging the Supreme Court to reject the county’s petition.

The Utah County Commission filed its lawsuit directly with the Utah Supreme Court, instead of district court, arguing that only it can provide a speedy enough resolution to ensure that UTA’s budget and other actions by the new board include representation from Utah County.

UTA also filed a response to Utah County’s petition. It argued that the new board was legally formed and is able to operate with a quorum. So it said there is no urgency requiring the Supreme Court to consider the petition, and it should reject it — and force Utah County to file in district court.