Ethics complaints against Utah’s top officials go to a commission that has been understaffed for nearly 2 years

The Executive Branch Ethics Commission was created a decade ago in the midst of scandals surrounding then-Attorney General John Swallow and then-Lt. Gov. Greg Bell.

(Francisco Kjolseth | The Salt Lake Tribune) The governor’s mansion on Tuesday. Since Gov. Spencer Cox took office, three of the five members of the Executive Branch Ethics Commission — meant to investigate ethics complaints against elected members of the executive branch — have seen their terms expire. Cox has not replaced any of them.

In the wake of major scandals that led to the FBI investigating a Utah attorney general and lieutenant governor, the Legislature passed a bill to create an ethics commission to look into complaints against the state’s executive branch.

But for nearly two years, that commission was functioning with less than half of its legally required members and has limited ways for the public to file a complaint against Utah’s top officials.

The Executive Branch Ethics Commission’s purpose is to respond to and probe allegations of unethical conduct against elected members of the executive branch, which include the governor, lieutenant governor, attorney general, state treasurer and state auditor.

Three people on the five-member commission, created in 2013, saw their four-year terms expire in June 2021 and, according to Utah’s Boards and Commissions website, seemingly have not been replaced. The governor is responsible for appointing members of the commission, per state code.

Both spots on the commission meant to be held by members of the public appear vacant on the website, as does one intended for a former judge.

When contacted by The Salt Lake Tribune, a spokesperson for the governor referred all questions to Michael Mower — Gov. Spencer Cox’s senior advisor of community outreach and intergovernmental relations.

Mower, who also oversees boards and commissions for the governor’s office, said one of the two citizen members with an expired term had her position renewed “fairly recently,” but said he could not recall when. In a Facebook message to The Salt Lake Tribune, the commission member confirmed she was reappointed on Dec. 20, 2022 — 18 months after her last term ended.

As of Tuesday morning, the Boards and Commissions website had not been updated to reflect that change. The last appointments shown on the website happened under former Gov. Gary Herbert.

The two active members are former deputy commissioner of financial institutions and associate general counsel to the Utah Legislature Gary Doxey — who is serving as chair — and Gordon Topham, a former Sevier County commissioner.

Neither the director of the commission, who handles its administrative needs, nor its chair disputed that three spots on the commission were empty in interviews with The Salt Lake Tribune on Friday. Doxey told The Tribune on Monday evening that he was never notified of the member’s reappointment.

“I know this one’s been a tough one for the governor to fill,” said commission director Justin Atwater. “But that doesn’t excuse what the statute requires. I think he knows that.”

Although commission members are appointed by the governor, the ethics commission is independent of the executive branch. And, by statute, making appointments requires the cooperation of all five elected officials in the branch.

“Each executive branch elected official, other than the governor, shall select, and provide to the governor, at least two names for potential appointment to one of the membership positions,” state law reads. If officials fail to submit names, though, the governor has the power to select someone without their recommendations.

Mower said replacing the members has not been a priority because the commission hasn’t actively investigated a complaint since 2021. According to the commission’s most recent annual report, which covers 2021, it reviewed one complaint that year carried over from 2019.

“They didn’t have any complaints before — I was talking to their chairman and they didn’t have anything that they were reviewing — so I don’t know why the big concern is out there when their chairman says we haven’t had any complaints,” Mower said.

Doxey confirmed to The Tribune it did not receive any complaints in 2022. But the executive ethics commission has limited avenues for submitting a complaint, contrary to state law.

A call to the phone number listed on its website prompts the response, “The number or code you have dialed is incorrect, please check the number or code and try again.” There is no physical address listed for the commission. The only way to contact the commission is through the email ethics@utah.gov.

Utah code says, “The commission shall post, on the state’s website, a conspicuous and clearly identified link to the name and address of a person authorized to accept a complaint on behalf of the commission.” While Atwater’s name is listed on the website, there is no address at which to send him complaints.

It is unclear what complaints may have been made in recent years because all complaints made to the ethics commission are legally required to remain confidential.

Atwater, who manages the commission’s administrative needs and accesses the email inbox with a personal computer, said not having a dedicated mailbox or phone number to receive sensitive complaints is “not ideal.”

He noted that an individual who didn’t have access to email on a regular basis recently wanted to file a complaint, and said he had to arrange for the individual to correspond with the Executive Branch Ethics Commission using the Legislative Ethics Commission’s mailbox.

“Any help we can get administratively, any solutions, I think would probably help constituents,” Atwater said.

Following the publication of this story, Cox quoted a tweet containing a link to the article, saying, “This was a simple — but inexcusable — oversight on our part. While I’m grateful we haven’t had any complaints to investigate, we should always have a fully staffed commission. I apologize and will make sure it is fixed immediately.”

A rough start

When the Legislature created the executive ethics commission in 2013, Utah was in the midst of two widely publicized scandals involving members of the executive branch. The FBI was investigating then-Attorney General John Swallow and then-Lt. Gov. Greg Bell for separate corruption allegations.

Swallow, a Republican, was accused of helping broker a bribe between indicted businessman Jeremy Johnson and then-U.S. Senate Majority Leader Harry Reid, a Latter-day Saint Democrat from Nevada, to derail a Federal Trade Commission investigation into Johnson’s business while Swallow was working as a private attorney. He resigned from his position as attorney general and was later cleared of all charges against him.

(Trent Nelson | The Salt Lake Tribune) The Executive Branch Ethics Commission was created after two widely publicized scandals involving members of the executive branch, including former Utah Attorney General John Swallow.

Bell was investigated for allegedly influencing the outcome of a child abuse investigation on behalf of a friend and member of his Latter-day Saint congregation. The Davis County attorney at the time did not pursue charges, saying his office — with the help of the FBI — did not find any evidence of criminal wrongdoing.

The lieutenant governor resigned later that year for other reasons, citing financial concerns. Herbert chose Cox to succeed him.

As governor, Herbert supported lawmakers’ efforts to create the ethics commission. Democrats, however, were skeptical.

Former Democratic Sen. Jim Dabakis of Salt Lake City, who also chaired the Utah Democratic Party, voted against the bill. The Tribune reported that he disliked numerous provisions in the bill, including requiring the dismissal of complaints if details are leaked to the press.

Matt Lyon, then the executive director of the Utah Democratic Party, issued a statement calling the bill a “stunt, so Republican politicians can pat themselves on the back, pretend to make serious ethics changes, and then do nothing.”

Although the commission has been shy a trio of seats for the last couple of years, issues with its operations began before the Cox administration moved into the governor’s mansion.

For a period of time in 2019 and 2020, the commission operated without a director — at least without one who met the qualifications legally required to hold the position.

In March 2019, Atwater accepted a job as the head of Utah’s Land Trusts Protection and Advocacy Office. He was hired by former State Treasurer David Damschen, who the commission would have fielded complaints against.

Under state law, “staff for the commission may not perform services for any other person in state government.” Atwater was never replaced by the commission, which bears the responsibility of hiring a director.

Later, citing “another opportunity,” Atwater resigned from the Land Trusts Protection and Advocacy Office in the fall of 2020. He began working as general counsel and executive vice president of Associated Food Stores in October 2020.

Atwater said his departure from the commission was “pretty abrupt,” but that he was hired back after leaving the Land Trusts Protection and Advocacy Office. Whether he ever officially resigned from the commission, though, is unclear.

Doxey told The Tribune that after Atwater accepted the job from the state treasurer, the commission started the process of replacing him. During that time, though, Doxey noted that Atwater would occasionally help with a complaint — against an official other than the state treasurer — that the commission was reviewing.

“I don’t have any information about that time period,” Atwater said. “I was pretty — what’s the right word — China Wall. I mean, I was pretty much shut off, shut down, not involved at all.”

Utah’s transparency website does not list any income for Atwater from the ethics commission in 2020.

Update, Jan. 11, 9:50 a.m. • This story now includes a comment from Gov. Spencer Cox about the commission.