Legal tussle over vouchers

While lawsuits loom over the state Board of Education regarding the implementation of vouchers, or lack thereof, officials are concerned about who will defend the board if the issue heads to the courts, since the board's actions are in conflict with the opinion of Utah's attorney general.

It could mean getting outside counsel.

Voucher proponents are up in arms about the state board's delay and refusal to implement a voucher program that they expected to be up and running as of Tuesday.

The program would provide Utah families with a tuition voucher ranging from $500 to $3,000 per student attending a private school, based on the parents' income.

But those interested in such help are going to have to wait indefinitely, since the board has yet to draft rules for the bill that voucher supporters believe should be implemented now.

The Legislature passed the initial voucher law, HB148, in early spring.

But voucher opponents felt that public money should not go to private schools and successfully gathered voter signatures for a referendum to let the public decide if it wants vouchers in Utah. The original law is now on hold pending a November vote.

However, HB174, an amendment bill that made some minor changes to the original voucher law, was also passed and became law last month.

Voucher supporters, along with Utah Attorney General Mark Shurtleff, say that measure has enough language in it to stand alone.

But critics, along with a number of state board members, say the bill is fragmented and missing some critical sections. And members of the state Board of Education say they aren't going to move to implement the second law until legal questions are answered — specifically, what power the state board has in filling in the missing pieces of the law.

The attorney general's office, which is constitutionally designated as sole legal adviser to the board, has already issued an opinion that the board should immediately implement HB174 and even sent a letter this week advising the board to implement the program immediately.

So, if the board is sued because the panel refuses to recognize HB174 as law, can an office with differing opinions represent it in court?

That's a concern for state leaders.

"If we say to (the AG) now, 'We can't implement the law because there are still a lot of questions to work out,' he can't then, after this letter, turn around and defend us because he has already made his position very clear," said Jean Hill, state Office of Education attorney.

But Shurtleff said his office often represents different sides of an issue while maintaining a good conflict wall.