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Utah House conference call on COVID-19 was apparent violation of open meetings law

(Trent Nelson | Tribune file photo) House Speaker Brad R. Wilson, R-Kaysville, as the House repeals the tax package they passed last month during a special session, at the state Capitol in Salt Lake City on Tuesday, Jan. 28, 2020.

Utah House leaders seem to have violated the state’s open meetings law by hosting a March conference call to update members of the chamber on Utah’s unfolding coronavirus emergency.

House Speaker Brad Wilson invited all 74 of his colleagues to join the call, during which he answered their submitted questions and described some of the issues that representatives might have to tackle in the coming weeks. According to House Minority Leader Brian King, “there was no policymaking in a meaningful way” during the conversation.

“I think it was something that the speaker didn’t realize at the time was an issue with the Open Meetings Act,” King, D-Salt Lake City, said, adding that House Democrats didn’t initially see it as a problem either. “We as a caucus participated in it, and we were glad to talk to the speaker.”

But the virtual event still appears to run afoul of the state’s open meetings law, said Jeff Hunt, a First Amendment and media law attorney.

The law does permit legislators to hold electronic meetings but requires them to post a notice and agenda 24 hours ahead of time and designate an “anchor location” where the public can listen in and participate. The state’s public notice website has no record of any legislative meetings on March 18, except for a higher education planning commission event that was called off.

Wilson, R-Kaysville, scheduled another conference call for the full House on March 23 but canceled it a few hours ahead of time. Since then, King said, the House speaker has been setting up calls with individual caucuses, which are permitted to hold their meetings behind closed doors. However, House Democrats generally open their caucus to the reporters and public.

Through a spokesman, Wilson declined to comment.

Open meetings violations can draw lawsuits or lead a judge to reverse votes taken by the governmental body that was acting in secret, Hunt said. But with no decisions made on the House conference call, he added, there is little reason to think legal action will ensue.

The attorney said he’s also heard about city and county leaders stumbling over the state’s open meetings requirements as the coronavirus forces them into a new era of virtual deliberations.

“It’s been a learning curve for public bodies, as we now live in the age of social distancing,” he said.

At the beginning of the outbreak, the “anchor location” provision was particularly troublesome for cities and towns, since public health officials are discouraging all gatherings. But on March 18, the governor signed an executive order allowing local governments to hold their meetings online as long as they post appropriate notice.

Although King views the March 18 call with the entire House as an honest mistake, the move to remote meetings does raise questions about transparency during the all-online special session that lawmakers are likely to convene over the next few weeks.

With the pandemic looming, lawmakers in the waning days of this year’s session pushed through changes that will enable them to meet electronically in times of emergency — and the current situation certainly qualifies.

As they look ahead to the special session, lawmakers have mulled dispensing with legislative committee hearings because of the potential technical challenges involved, King said. While he’s sympathetic to these difficulties, he said lawmakers must give the public some forum to voice their opinions, even if bill hearings aren’t possible.

“This is the people’s business we’re doing, and we have to do it in the most transparent way possible,” he said, adding that he plans to raise his concerns with Wilson this week.

Lawmakers are poised to make some momentous decisions during the special session, he noted, including reworking the state budget in light of the economic turmoil created by COVID-19.

Hunt agreed that the stakes are even higher now because of the pandemic and the economic and social disruption swirling around it.

“It’s vital now more than ever that the public understand what the government is doing,” he said. “That would be the concern, is to do this in a way that protects the public health, but still allows public participation and scrutiny of the process.”

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