Five years after the Utah Legislature created an ethics commission to consider allegations against elected members of the executive branch, the first person to have a complaint reviewed came to the lawmaking body to ask it to audit that commission.
“If your goal was to establish an ethics commission which would bury any complaints against the elected executive branch officials, the EBEC was a tremendous success,” Paul Amann told the Legislative Management Committee in 2018. “If, however, your goal — especially in the wake of the (Mark) Shurtleff and (John) Swallow investigations — was to facilitate effective handling of ethics complaints, the legislation you passed has, for all practical purposes, failed miserably.”
The Executive Branch Ethics Commission was created one decade ago this month after Utah was rattled by two major scandals that led to the FBI investigating a Utah attorney general and his predecessor, as well as a lieutenant governor.
Annual reports available for eight of the 10 years the commission has operated indicate it has heard just two complaints — none of which, seemingly, have been found to have merit and referred to the Legislature for potential action. And in that time, the governor-appointed volunteer commission’s operations have been supplemented with nearly $50,000 from the Legislature.
Two reports, from 2014 and 2015, are not publicly posted on the commission’s website.
Criticisms of the commission’s complaint process — voiced as early as its creation in 2013, and continuing to the present — center around the hurdles that have to be surmounted to submit a complaint and have it considered, and a lack of transparency. Its effectiveness has further been brought into question by a series of functional failures since 2013.
The Salt Lake Tribune reported in January that for nearly two years, the commission was operating with only two of its five statutorily required members.
A spokesperson for Gov. Spencer Cox initially referred The Tribune to his senior advisor of community outreach and intergovernmental relations, Mike Mower, who said the commission had been without a quorum because there wasn’t a need for one — it hadn’t actively investigated a complaint since 2021.
But, less than 90 minutes after the publication of The Tribube’s story, the governor took to his personal account to respond to a tweeted link to the article.
“This was a simple — but inexcusable — oversight on our part,” Cox wrote. “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.”
According to the state’s Boards and Commissions website, new members were appointed the next day.
Other issues pointed out in the article, however, remain unfixed.
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 the commission’s Executive Director Justin Atwater’s name is listed on the website, there is no address at which to send him complaints.
All three of the state’s other ethics commissions — the Legislative Ethics Commission, the Political Subdivisions Ethics Commission and the Judicial Conduct Commission — have phone numbers through which the public may contact them. And both the Legislative Ethics and Judicial Conduct commissions have physical addresses where they can receive complaints.
A phone number listed on its website at the time prompted the response, “The number or code you have dialed is incorrect, please check the number or code and try again.” That phone number has since been removed from the website and was not replaced.
There is also, still, no physical address listed for the commission. The only way to contact the commission is through the email firstname.lastname@example.org, according to its website.
“Any help we can get administratively, any solutions, I think would probably help constituents,” Atwater, said in January. Atwater is not a member of the commission, but manages its administrative needs.
The Tribune’s article is not the first time the nonoperational phone number was brought to the attention of the governor’s office or the Legislature.
In emails obtained through a public records request, someone trying to figure out how people are considered to become commission members reached out to their representative in December 2021.
“I am interested in getting more information on the Executive Branch Ethics Commission and I wondered if you could help me?” they wrote. “Unfortunately the telephone number on their website is no longer in service and I have not received a response to an earlier email.”
The lawmaker, trying to help, forwarded the email to a constituent services specialist, who then reached out to Shelly Smith, whose email signature identifies her as the Boards and Commissions director. She copied Mower on the thread, and all responses appeared to stop there.
“The initial complaint that ended with Mike Mower was not forwarded because communication was likely made over the phone — Mower has no phone call to verify this,” a spokesperson for the governor wrote to The Tribune when asked about the interaction. “The Governor’s Office has tried to have minimal contact with this office — due to its design. The board is currently up to date and fully functioning.”
The Department of Government Operations told Atwater, he said, that the state is not able to provide the commission with a phone number that can forward voicemails to its email address accessible to members.
“The same is true for mail,” Atwater wrote in an email. “There is no mechanism for mail to be sent to a secured location where only the commission can access. Both phone and regular mail to a number and address where there is no commission personnel present may create a situation where the commission never receives (or receives late) the information or the information is unintentionally disclosed or compromised.”
A spokesperson for the Department of Government Operations said the commission is “receiving a software-based phone in the coming days. A change in personnel and miscommunication contributed to a phone number not being available.”
Atwater said the commission prefers that all of its complaints come through the same pathway — email — anyway. That helps the commission ensure it is meeting statutory deadlines and fulfilling its duties, he said.
“If they have questions they can e-mail the commission at the address listed on the website,” Atwater wrote in an email. “If they have a complaint ready, they can e-mail that as well, or e-mail and request a way to deliver the complaint.
The executive director added that he “will always” respond to emails and is willing to make additional accommodations. When speaking with The Tribune in January, Atwater said he has previously arranged to use the Legislative Ethics Commission’s mailbox when a potential complainant couldn’t access email on a regular basis.
The time it took for the commission to respond to his complaint, submitted through email and by hand, is one of the issues Amann brought up in front of the Legislative Management Committee.
Prior to his 2018 supplementary report to the Legislature, Amann spent over a year going through the ethics complaint process. He says he submitted his initial complaint to the ethics commission in September 2016, and later complained that it took two months for the commission to accept the complaint. Under state statute, that decision to deny or accept a complaint needs to be made within five days of initial receipt.
He wrote that there were other lengthy delays throughout the review process, which ended sometime in 2017. Amann also alleged that numerous members of the commission had conflicts of interest, and while one recused herself from the investigation, others didn’t. Outside counsel hired by the commission, he complained, also had connections to the executive.
“Changes need to occur with this Executive Branch Ethics Commission to make it a success,” Amann told the committee in 2018. “I’m sure I speak for the citizens of this state in saying that the Utah Legislature should be making it feasible for citizens to hold elected officials accountable for their high crimes and misdemeanors and malfeasance in office.”
Portions of Amann’s complaint are now part of an ongoing federal lawsuit against the executive.
“I am aware of the 2018 remarks,” Atwater, who became executive director in the middle of the investigation, said in an email. “Firstly, the commission is not at liberty to disclose the identity of a complainant (current or former) or anything regarding a complaint. The annual report is the sole public disclosure from the commission. ... I can respond generally that every review the commission has conducted while I have been director has been complete, robust and fair.”
While the Legislature didn’t conduct an audit of the commission, a few weeks later during the 2018 legislative session, Sen. Curtis Bramble, R-Provo, introduced a bill that made changes to how the commission operates.
Bramble said he was involved in establishing the ethics commission in 2013, and he’s helped fine-tune it along the way.
When the commission was first introduced, 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 Bramble told The Tribune on Tuesday he doesn’t recall whether his bill came as a result of Amann’s testimony, many of its provisions seem to address grievances related to Amann’s complaint — from both sides.
It allowed ethics commissions to retain private counsel, and also provided a way through which complainants can protest conflicts of interest.
Bramble’s bill, which passed both the Senate and the House unanimously, faced opposition from the public based on two portions. First, at least one of the two required complainants has to have “personal” knowledge, rather than just “actual” knowledge, of an alleged ethical violation. It also limited complaints considered by the commission to “conduct that, if true, would constitute grounds for impeachment under the Utah Constitution.”
Chase Thomas, who was then the policy and advocacy counsel for Alliance for a Better Utah, joined Amann’s wife, Wanda Amann, in speaking against the bill during a committee hearing.
Thomas testified that he was grateful that Bramble was working to guarantee the ethics commissions’ independence through efforts like allowing access to outside counsel, and that Bramble’s bill provided a process through which members can be challenged for conflicts of interest.
But, he said, Better Utah was concerned with some of the changes to the commission overseeing the executive branch, specifically.
Both Thomas, who is now the executive director of the progressive nonprofit, and Amann said they felt that raising the knowledge standard from “actual” to “personal” was too restrictive of a limit on who can submit a complaint. Bramble disagreed, saying people would be able to report something they’d read in the newspaper.
“What we’re trying to do is have an independent forum for citizens, but at the same time, ethics commissions shouldn’t be based on weaponizing that you don’t like a policy,” Bramble told The Tribune, continuing, “Ethics complaints can destroy a person’s life, and they ought to be taken very seriously, and there ought to be a pretty high standard.”
No new complaints
The commission reports that it received zero complaints in 2022, although that figure is not currently publicly available on its website. The report has been completed and sent to the governor and the Legislature. Last year’s annual reports for the Legislative Ethics Commission and the Judicial Conduct Commission, however, have been posted online.
A spokesperson for the Legislature shared the annual report with The Tribune.
It indicates that the commission’s expenses last year were $10,000 — less than the $14,600 reportedly appropriated by the Legislature. The Legislature’s website shows that it has appropriated $9,500 for the ethics commission in 2023.
All of the 2022 expenditures, according to the report, went toward “per diem, staff compensation and costs relating to commission business.”
When it comes to accepting and reviewing more complaints, the executive director said the commission’s hands are tied — it has to comply with the lengthy, detailed lists of requirements put in place by the Legislature.
“The commission has a well-defined set of statutory parameters that must be strictly followed by the commission and complainants,” Atwater wrote in an email. “The commission cannot step outside those boundaries no matter how much the public might want it to. ... If the legislature feels the commission’s role should be expanded beyond its current mandate, the legislature would need to make the necessary statutory changes.”