The language in Article V of the Utah Constitution is straightforward. It establishes Utah’s three branches of government — legislative, executive and judicial — and says a person belonging to one branch cannot “exercise any functions” that pertain to any of the others. Gov. Spencer Cox appears to be testing the limits of Utah’s constitutional separation of powers with his choice to head up the Department of Natural Resources.
In June, Cox tapped Rep. Joel Ferry to be the executive director of DNR. It’s not out of the ordinary for lawmakers to move from the Legislature to an administrative role in state government. Former Rep. Paul Ray stepped down from the Utah House to take a top spot with the Utah Department of Human Services in 2021. Former Rep. Logan Wilde resigned from his seat in 2020 to become commissioner for the Utah Department of Agriculture and Food in the Herbert administration.
There are other examples of movement between branches of government. Karen Peterson resigned her job as Director of Legislative Affairs for Cox in January after she was picked to replace Ray in the Utah House. Former Rep. Craig Hall stepped down after Cox appointed him to be a Utah District Court Judge in 2021.
Ferry is still waiting for Senate confirmation of his appointment, but he is currently in the job as acting executive director.
Unlike others, Ferry is hanging onto his seat in the Utah Legislature.
That dual role raises a constitutional conundrum for legislative leaders and the Cox administration. Not only does it appear to violate Article V of the Utah Constitution, but it seemingly runs afoul of section 6 of Article VI. That provision says a member of the Legislature cannot hold a “public office of profit or trust” and be in the Legislature simultaneously.
Cox’s office says there’s no conflict because Ferry has resigned from legislative committees and assignments that deal with natural resources issues and is not taking any compensation for his legislative role. Ferry will serve as acting director of DNR until the Senate confirms him.
When asked if they received a legal opinion about Ferry’s status, Cox’s office did not respond.
The timing of Ferry’s confirmation is up in the air as the Senate Natural Resources, Agriculture, and Environment Confirmation Committee has not yet scheduled a hearing. Scheduling is up to Sen. Scott Sandall, who chairs the committee. Ferry and Sandall’s political fortunes have been intertwined. Ferry replaced Sandall in the Utah House when Sandall ran for the Senate in 2018. A Utah Senate spokesperson did not respond when asked when Sandall might decide to schedule that meeting.
If approved, his nomination goes to the full Senate for approval. Those sessions usually happen during monthly interim meetings, so the earliest he could officially take the position would be August.
But there’s a political incentive for the Legislature to slow-walk Ferry’s confirmation. His appointment puts the Republican Party in an electoral bind and could flip control of the solidly Republican seat in the Utah House.
Ferry was renominated for another term in House District 1 by party delegates in April. State law does not allow replacing a candidate on the ballot except for physical or mental disability or disqualification. The only other candidate on the ballot is Democrat Joshua Hardy.
Once Ferry is confirmed, he might be forced to drop out of the race, leaving no Republican candidate on the ballot. A Republican would have a good chance to mount a write-in effort since the district is overwhelmingly Republican, but that’s a risk Republicans might not want to take. Write-in candidates must declare their intentions by Sept. 5.
It would be easier electorally to delay his confirmation for as long as possible, keeping him as acting director and on the ballot until later this year. Ferry could resign his House seat but remain on the ballot, resigning again after the election, allowing GOP delegates, not voters, to pick his replacement.
The potential for electoral gamesmanship drew a harsh rebuke from Utah Democrats.
“Even though his name is still on the ballot, Rep. Ferry has moved on and does not plan to represent the district in the House, even if he wins again in November,” Ben Anderson, communications director for the Utah Democratic Party, said in an email. “That’s the choice that voters will face in HD 1: a choice between a dedicated, hardworking candidate who is committed to serving the people, and a placeholder on the ballot for a nameless, faceless representative who will be chosen by a small number of GOP delegates after the election.”
Ferry did not respond to requests for comment.