One of the next debates between the Salt Lake City Council and Mayor Palmer DePaulis could be in the courtroom, after the council passed an ordinance Tuesday night which the city attorney says may violate separation of powers.
The council passed 7-0 an ordinance limiting the number of terms served by members of various city boards appointed by the mayor to two.The new ordinance was triggered by a summer spat between the mayor and the council over mayoral appointments.
Before Tuesday's vote, City Attorney Roger Cutler warned the council that the ordinance could be tantamount to Congress telling the president who to nominate to the U.S. Supreme Court.
"Do you have the right to define the universe from which the mayor would nominate appointments?" he asked the council.
DePaulis is in Washington, D.C., this week for the U.S. Conference of Mayors, but his chief of staff, Mike Zuhl, said DePaulis would likely let the ordinance become law without his signature and then ask Cutler for an opinion on its legality.
If Cutler finds there is legal precedent to challenge the ordinance, the mayor "would consider . . . a court challenge," Zuhl said.
The matter would likely be aired in district court and could require that the mayor and the council appoint independent counsels to represent them.
Cutler declined to give a preliminary opinion of the separation of powers question in the ordinance, which his office drafted. "I'm not ruling on it. I'm just saying it exists," he said.
He did say, however, that the courts have been clear in saying that council-mayor forms of city government, such as the city's, are governed by well-defined concepts of separation of powers that divide the executive and legislative branches.
Cutler said he knew of no incidents of the legislative branch meddling with the powers of executive appointment.
"The question is in passing this ordinance, are they (the council) intruding into executive powers," Cutler said, "and I think that raises serious separation of powers questions."
Last summer, the council stalled several mayoral appointments to the Salt Palace Fine Arts Advisory Board. Some council members claimed the appointments were not geographically representative.
DePaulis said he would attempt to spread appointments between all the city's council districts but would not feel he had to strictly adhere to geographically representative appointments.