A Democratic legislative candidate and the Utah Democratic Party are threatening legal action unless Joel Ferry, Gov. Spencer Cox’s pick to head up the Department of Natural Resources (DNR), resigns his legislative seat and removes his name from November’s ballot in House District 1.
Cox picked Ferry to be the executive director of DNR in June, which is a part of the governor’s cabinet. Ferry is still hanging on to his legislative seat, seemingly in violation of the Utah Constitution’s separation of powers, according to the Democrats. Ferry is working at DNR in an acting role until the Utah Senate confirms him.
In July, Gov. Spencer Cox’s office argued Ferry’s dual role was not unconstitutional because he has resigned from legislative committees and assignments that would govern natural resources-related issues. Furthermore, he is not taking any compensation for his legislative role. He is still on November’s ballot.
Cox’s office on Saturday said Ferry would resign from his seat in the Legislature following the Senate confirmation process, which they expect to begin soon.
Two days earlier, legal counsel for the Utah Democratic Party and Joshua Hardy, Ferry’s opponent in November, sent a letter to Lt. Gov. Deidre Henderson’s office asking that they disqualify Ferry from appearing on the ballot since he’s ineligible to hold office if he is reelected.
“The separation of powers provisions of our state constitution requires that legislators only perform legislative duties. Mr. Ferry cannot perform executive duties while holding legislative office, even if he is working for both offices for free,” the letter said.
Ferry’s appointment to lead DNR has put the Utah Republican Party in a pickle. It’s too late to replace him as the party’s nominee on the ballot. Hardy is the only other candidate on the ballot. Republican Karson Riser filed as a write-in candidate last week.
The letter pointed to a similar situation in 1978 when Sen. Edison Stephens was appointed Director of the Division of Weights and Measures by then-Gov. Scott Matheson. The Office of the Attorney General advised Matheson that Utah’s constitution prohibits a person from simultaneously holding a position in the executive and legislative branches of government.
“It also seems clear under this section that when Sen. Stephens accepted the position of Director of the Division of Weights and Measures that his office as a State Senator became vacant since he could not hold his new position and also be a member of the Legislature,” Assistant Attorney General H. Wright Volker wrote.
Ferry was not present for interim legislative meetings this week. No reason was given for his absence.
Ferry’s appointment is still awaiting confirmation by the Utah Senate. The official notice from Gov. Cox’s office nominating Ferry to the position wasn’t sent to the Senate for nearly a month after he assumed his new duties. Ferry’s confirmation hearing has yet to be scheduled. A vote to confirm him to the full Senate could either happen during the next interim session on Sept. 21 or wait until the October interim, after the date when mail-in ballots are sent to voters.
In a news release, Democrats harshly criticized Ferry for not resigning and withdrawing from the election. Party Chair Diane Lewis not so subtly threatened to take the issue to the courts.
“If Mr. Ferry won’t step down from his seat and have his name removed from November’s ballot, we will make the Lieutenant Governor do it for him,” Lewis said.
Lt. Gov. Henderson’s office did not respond to a request for comment.
Utah GOP Chairman Carson Jorgensen said Democrats were trying to take advantage of a legal loophole to try and win an election they otherwise would lose handily. Currently, Utah law allows a party to swap a candidate on the ballot if they die, resign due to a physical or mental disability, are disqualified for improper filing or nominating procedures, or resign to run for president or vice president. Ferry’s current situation does not apply.
“The Legislature should include ‘appointment by the governor’ to reasons for replacing a candidate on the ballot. It’s not fair to the process to nullify the vote of Republicans in an entire district because the governor appointed the candidate to serve at the state level,” Jorgensen said.
The Utah House did not respond to a request for comment.
Note to readers: This story was updated on Saturday, Aug. 20 to reflect the governor’s comment that Ferry would resign his seat.