SALT LAKE CITY — Utah lawmakers took steps to flex their muscles and expand the power of the Legislature on several fronts during their recently concluded general session, and at least one issue could lead to another showdown with Gov. Gary Herbert.
Republicans, who own supermajorities in the House and Senate, drove legislation to allow the Legislature to intervene in court cases and to call themselves into special session in an emergency. They pushed bills exerting more direct influence over Salt Lake City's northwest quadrant and the Utah Transit Authority.
Legislators sought to create an oversight committee to investigate local governments, school districts and state agencies. They looked to seize control over filling midterm congressional vacancies and meddle in ballot initiatives. They wanted to tell cities they couldn't outlaw plastic bags in grocery stores.
Some attempts were successful, some failed and some are pending.
"Was it an expansion of legislative power? Absolutely, and that’s a bit of theme this session," said House Minority Leader Brian King, D-Salt Lake City, who supported some of the measures and fought against others.
Some of the Legislature's bravado reflects the personality of House Speaker Greg Hughes, R-Draper, whom King describes as a man who has a bias toward action.
"When he sees the opportunity expand the power of the Legislature, he’s gong to take it," King said.
Some of the boldness stems from the fight lawmakers had with Republican Gov. Gary Herbert last year over how to conduct the special election to replace former Utah GOP Rep. Jason Chaffetz, who resigned last June.
Legislators were frustrated that the governor wouldn't call them into session to set up the process, which they contend is their prerogative. They also butted heads over a legal opinion on the special election legislative leaders sought from the attorney general who refused to turn it over, citing the governor as his client.
"There’s a constant effort to assert our position and do what we feel is best and suppress any type of usurpation of our power," said Senate President Wayne Niederhauser, R-Sandy.
Hughes, who isn't seeking re-election, said it isn't so much about trying to grow in authority as it is about ensuring the legislative branch is seen in the same light as the executive and judicial branches.
"We have people that when we get out of this 45-day session, it’s hard to get a phone call back, and then when you’re in session, you’re very popular and a very sought-after policymaker," he said.
Other government branches and the public need to know the Legislature is relevant outside its annual session, Hughes said.
"That it is the voice of the people, and we want to make sure that constitutional prerogative is protected and it is understood," he said.
One branch of government can't assume the responsibility of another, said Ric Cantrell, Attorney General Sean Reyes' chief of staff.
"When someone oversteps, it's usually out of a good-faith effort to execute legitimate responsibility," he said. "That said, some of the legislation passed this session steps close to the line and may very well cross it."
Hughes, though, disagrees that legislation aimed at northwest Salt Lake City and UTA are power grabs. He also doesn't believe the separation of powers bills, which he noted came from both the House and Senate, hurt his relationship with Herbert.
When asked how the separation of powers bills effected his relationship with the governor, Hughes said, "Well, maybe I'm a Neanderthal, but I don't think at all. I think we're having a great session," he told reporters Thursday in the closing hours of the 2018 Legislature.
But things could heat up between the legislative and executive branches.
Herbert is threatening to veto the bill lawmakers passed setting aside $700,000 a year for attorneys to represent them when they feel compelled to go to court. The attorney general's office is charged with representing the state when a law faces a legal challenge.
"If the governor vetoes that, we’ll see what we do with it," said Senate Majority Whip Stuart Adams, R-Layton, hinting at the possibility of a veto override session. "You might see that happen. No prediction right now though."
Adams said the Legislature isn't trying to take anything away from the attorney general's office, but its own lawyers would better equipped to defend a law if the state were sued.
The attorney general office's spoke against the legislation in committee hearings.
Herbert said the legislative branch makes laws, and the executive branch enforces and defends them in the event of a lawsuit.
"I'm the named defendant. That ought to tell you something," the governor said.
While Herbert can pull out his veto pen for that bill, he can't stop the Legislature from seeking the ability to call itself into special session in an emergency. That decision rests with voters this fall in the form of a ballot question to amend the Utah Constitution. Only the governor may call the Legislature into session under current state law.
"There are times when I think we wished we would come in and solve some problems and not just have to go to the governor," Niederhauser said.
Legislative leaders say those times would be rare and, according to the resolution, only in the event of an epidemic, natural or human-caused disaster, enemy attack or other public catastrophe.
"I think the public will understand that’s probably not a good idea," the governor said.
Herbert said the language is too broad, and it would be easy for lawmakers to cite "emergency this, emergency that" to defer the work they do in the 45-day general session to another time.
"That’s the camel’s nose in the tent of … full-time legislators, and all you gotta do is just look at California to see that’s not working very well," he said.
Herbert said former California Gov. Arnold Schwarzenegger once asked him how long the Utah Legislature meets. Herbert told him 45 days.
"Oh, Gary. You're so lucky," Herbert said, doing his best Schwarzenegger impression.
Hughes and Niederhauser say they have no desire for a full-time Legislature. Hughes said he likes the pressure of the limited session because it forces lawmakers to get things done. Also, he said the proposal is narrow in scope — the most narrow, in fact, among the 35 state legislatures who call themselves into session.
Jason Perry, director of the University of Utah's Hinckley Institute of Politics, said there were several bills during the session that gave the Legislature more control over areas they thought weren't being managed well.
"They're trying to bring their influence to bear on these particular areas. We'll see if this is a trend that continues or not," he said.
The battle to control development in Salt Lake City’s northwest quadrant was one city leaders had been bracing for ever since a surprise bill was filed in the final days of the 2017 legislative session as a “warning shot,” as sponsor Sen. Jerry Stevenson, R-Layton, has said, for city leaders to work with the state.
At stake: more than 20,000 acres in the city’s last undeveloped swath of land — a spot long eyed for a global trade area or an inland port because of its proximity to the airport, rail and interstates.
The 2018 Legislature began with negotiations between city and state leaders — but in the end, those negotiations hit a wall, and the result, to the dismay of city leaders, was a new bill that sailed through the House and the Senate within minutes on the second-to-last day of the session.
SB234, which Herbert says he plans to sign, will create the Utah Inland Port Authority, a new governmental body to oversee development of an inland port area in the northwest quadrant — along with some 2,000 acres in West Valley City and Magna.
Of the 11-member board, the state has four appointments (two from the governor, one from the Senate and one from the House), while the city has two (one from the Salt Lake City Airport Advisory Board and one from the City Council). Remaining seats were left to West Valley City, Salt Lake County and other organizations.
A provision of the bill allows administrative land use decisions to be overridden by an appeals panel, consisting of members of the Utah Inland Port Authority, which city leaders say removes the city’s land-use authority. The new bill would also capture 100 percent of property tax increment from new development in the project area.
Salt Lake City Mayor Jackie Biskupski on Friday called on Herbert to veto the bill "because it is an unprecedented land and power grab of nearly 22,000 acres."
"(The bill) undercuts local control and gives an unelected, unaccountable board authority over nearly one-third of the lands in Salt Lake City," she said.
Hughes disputed the claim that SB234 would usurp city land use decisions, saying cities can still make zoning decisions, and the appeals panel would be a “moot point” so long as the city and state are “truly aligned in goal and purpose.”
Hughes and Stevenson have said the intent of the bill hasn’t been to take control of the land but to work in “concert” with the city on an inland port that could perhaps be the largest economic development opportunity to Utah, a project they say is too big for one city.
A potential inland port in the city’s northwest quadrant has been discussed for years, and Biskupski’s administration began working on a master plan and development agreements with property owners since she took office in January 2016. But Hughes said he wanted to establish the Utah Inland Port Authority before he left office at the end of this year.
“This is something I do think is a pivotal moment in Utah’s history,” he said. “I wanted to leave this session with those seeds planted.”
Lawmakers took control of the Utah Transit Authority in a big way this session, but stopped short of an outright state takeover of the troubled agency because that would have meant assuming some $2 billion in debt.
The cash-strapped agency that is cooperating with federal authorities in an ongoing investigation related to transit development deals will lose its autonomy but gain access to state funds for the first time.
SB136, the massive bill that was the product of a yearlong study by the Legislature’s Transportation Governance and Funding Task Force, replaces UTA’s 16-member volunteer board of trustees with a new, three-member management team.
Those three full-time trustees, nominated by local officials and appointed by the governor, will become the bosses of the transit agency with salaries set by the Legislature of no more than $150,000 each.
The bill also makes the attorney general’s office the legal counsel for UTA, doing away with the need for the seven attorneys on staff, and requires all employees to transition into the state retirement system.
The most controversial change made by lawmakers, however, is the new name for UTA, Transit District of Utah.
While UTA officials said it would cost $50 million to change the agency’s name on everything from buses to fare cards, no money was appropriated because lawmakers said that could be done as those items need to be replaced.
Herbert, however, said he doesn’t see a need for new name and suggested lawmakers “push the pause button” on the idea.
Despite the fact the UTA overhaul was tied to making state money available for transit projects, there was serious squabbling over whether to put any cash into the new transit fund created by the bill.
The Senate toyed with several sources, including an $80 million statewide sales tax increase, but the House stripped out any new state funding for transit projects.
Niederhauser was able to get an earmark in place for a portion of the growth in gas tax revenues that’s expected to generate $5 million the first year.
Still, he said, that won’t be enough.
"This is only a first step. There are going to need to be many more resources put forth," Niederhauser said. "I just want to emphasize this is an effort that's going to be ongoing."
Greg Bell, the recently named chairman of the UTA board that’s going out of business Nov. 1, declined to comment when asked whether the bill was a power grab by the Legislature.
“It’s already history,” Bell said. “We recognize the reality, and we’re going to make it work the best we can.”
A complicated deal was put together in the final days of the session to stop what lawmakers repeatedly labeled the largest tax increase in the state’s history during the 2018 session, the Our Schools Now ballot initiative that would have raised $700 million for education by increasing sales and income taxes.
The deal, which calls for a nonbinding question on the November ballot asking voters whether they support a 10 cents a gallon increase in the state gas tax, was hailed as not only boosting education spending but also helping to fix issues with the state’s tax structure.
A key piece of the agreement, a five-year freeze of the state basic property tax rate expected to raise as much as an additional $125 million a year as housing values rise, was already part of the GOP legislative leadership’s tax reform plan that also reduced income tax rates from 5 percent to 4.95 percent and adopted a single sales factor formula for business.
Those very different changes to the state tax code were lumped together in a single bill that powered through the House and Senate on the final day of the Legislature, just as the legislation did that’s needed for the ballot question on the gas tax increase.
Sen. Jim Dabakis, D-Salt Lake City, who was one of only three votes in the Senate against what ended up being called the “Tax Rebalancing Revisions,” pointed out during the floor debate that the $27 million corporate tax break would actually take money from education.
“I would like to see us go back to the barbarians at the gate, these people who are out chanting, ‘We want to pay another $700 million. Our kids are worth it,’” Dabakis said. “I feel sorry that Our Schools Now surrendered. Let’s have that battle.”
But now the only question on the November ballot about bringing more money to schools will be about whether to raise the state’s 29.4-cent gas tax by 10 cents for education and local roads, and lawmakers won’t be bound by the vote.
That raises questions about how the 2019 Legislature will respond, especially if voters say no.
“If it doesn’t pass, we’ve done what we’ve agreed to do,” Adams said.
The Senate Majority Whip said there was talk of voting on a gas tax hike this session, but by the time the deal was reached, “it was just that it was too late.”
Senate Minority Leader Gene Davis, D-Salt Lake City, said if voters reject the increase, “it really puts a double whammy on the Legislature to have to address what has been agreed to.”
But Herbert said he expects the gas tax increase to be approved in November.
“I’m confident the public are pretty smart people,” the governor said. “They know what they need and what they want.
State School Board
A proposed constitutional amendment to change the governance of the State School Board from an elected body to one appointed by the governor was soundly defeated by the Utah House of Representatives the final night of the 2018 legislative session.
Dabakis' SJR16 died on a vote of 18-54 after about 30 minutes of debate.
"I don't think it was a referendum on that they don't want to do it. I think it was a referendum that it started too late, and it's a constitutional amendment that goes to the ballot so the threshold you need is two-thirds. That's a very high threshold to move on," said Spencer Stokes, a member of the Utah State Board of Education, who supported the resolution.
Constitutional amendments have to pass each legislative house by a two-thirds margin and be approved by voters.
While the House vote may have marked the demise of SRJ16, it's not the end of the governance conversation, Stokes said. Lawmakers plan to discuss the issue during the interim, he said.
State School Board Chairman Mark Huntsman said the board will likewise take inventory.
“So I think there’s going to be a little bit of a self look. As leadership, I’ll look at it. Based on this, what really were the underlying concerns and how do we address them moving forward?” he said.
Huntsman served eight years as a local school board member before he was elected to the State School Board, and he rejects the argument that people don’t know who serves on the state board.
“People who are really aggressive in their education community know not only who their state (school board) representative is, but their local representative,” he said.
SJR16 was a bit of sleeper as it moved through the legislative process. It was unanimously approved by the Senate Education Committee and was approved by the Utah Senate by a 22-6 vote.
Early on, the resolution had the firm support of the governor and Utah Eagle Forum, but it was opposed by the State School Board and the Utah Education Association.
Once SJR16 reached the House, growing numbers of people were paying attention to it because the legislation had been changed to call for a state school board appointed by the a governor. The board would select a superintendent, but the appointment would require approval of the governor and Senate confirmation.
Utah Eagle Forum pulled its support.
“When you have the UEA and (Utah Eagle Forum President) Gayle Ruzicka both working on the final day of the session with people feeling they want more time, that’s an easy argument to kill it,” Stokes said.
While Dabakis has announced he will not run for another term in the Utah Senate, Stokes said he believes there is support for the change because Utahns want more accountability for public education.
Stokes said the existing board is collegial and works well with the Legislature, “but we still don’t have any chits. We have nothing to horse trade with.”
A Cabinet-level superintendent would have the backing of the governor who could veto public education legislation perceived to be contrary to the best interests of public education, he said.
“I want education to succeed and excel. I have figured out after serving on the state board 3 ½ years this is a major structural, governance problem that is not going to move education forward until it’s fixed,” Stokes said.
With as many as six initiatives headed for the ballot in November, lawmakers worked late in the session to delay the implementation of those measures should they pass. Rep. Brad Daw's HB471 would have delayed the implementation of all voter-approved ballot initiatives until 60 days after the end of the next legislative session, unless the initiative specifies a later implementation date.
The Utah Medical Cannabis Act would have been most impacted by the legislation, had it passed. But after clearing the House during the session's final week, it was not debated in the Senate.
Davis said he was very worried about HB471. Though it failed, the Senate minority leader said lawmakers were pushing the late-session bill “because they want to frustrate and thwart the people’s voice.”25 comments on this story
Another effort that failed was a bill, HB175, that initially began as a new state oversight committee that would investigate executive agencies, cities, counties and schools boards with subpoena power.
The bill, sponsored by Rep. Keven Stratton, R-Orem, faced stark opposition from local governments and Herbert’s office — but it was resurrected for from failure twice, first from a House committee, then on the House floor.
The House floor eventually passed it — but not until after it was scaled back to only focus on executive branch agencies. In the end, however, the bill stalled in the Senate and died on the final day of the session.
Contributing: Preston Cathcart