SALT LAKE CITY — Throughout Salt Lake City's struggle with state leaders over control of a Utah inland port, Mayor Jackie Biskupski has had the threat of a lawsuit on the back burner as a last resort.
But this week — amid worries that a lawsuit with the state could come without buy-in from the city's budgetary body — the Salt Lake City Council quietly took action to block Biskupski from litigation over the inland port on her own.
Now, such a lawsuit would first need approval from the City Council, under the "contingent appropriation" within the city's budget, approved Tuesday night.
"There are opportunities for litigation that are so significant in their potential impacts to both branches of the city's government that we wanted to ensure the council's inclusion in the decision-making process should that arise," Councilwoman Erin Mendenhall said.
Thanks to the council's intent language included in the budget, funding for such a lawsuit would only be available to be spent if it's approved by the City Council.
As the council made its way down a list of motions to approve the budget Tuesday night, Councilman James Rogers motioned to include the intent language. His motion drew no debate and was unanimously approved.
A definition of the contingent appropriation, provided by city staff, defines the funding for "impact litigation" — or litigation that "addresses constitutional or policy issues that affect both branches of city government, filed against another governmental or quasi-governmental entity, and the council finds that could potentially have long-lasting budgetary or reputational consequences for the city."
A lawsuit against the state over the Utah Inland Port Authority — which the city has loudly contested ever since it was created by SB234 passed by the Utah Legislature this year — would clearly qualify.
So does this mean the council had worried Biskupski would pull the trigger on a lawsuit prematurely?
"I don't know if 'prematurely' is the right word," Mendenhall said. Rather, she said council members wanted to ensure they'd have decision-making power in the matter.
"We recognized that potential litigation with the state around something like the port could have significant policy and budgetary impacts that the council would want to be a part of that consideration because of the impact to our branch," Mendenhall said.
But Kitchen said there were rumblings that "the threat of litigation was heightened" after Sen. Jim Dabakis, D-Salt Lake City, who opposed SB234, and House Speaker Greg Hughes, R-Draper, who led the charge to create the Utah Inland Port Authority, negotiated some proposed changes to SB234 and urged for negotiations to continue amid gridlock.
"It kind of scared us," Kitchen said. "Not because we don't want to use litigation … but it needs to be something where all leaders in the city are on board."
It wasn't "to strong-arm the mayor or anything like that," Kitchen added. "But it was to make sure the City Council is included and not excluded."
"If we're going to be spending city taxpayer dollars that could potentially be very expensive, like a piece of litigation of this magnitude, we wanted the budget-making body to have input," Kitchen said.
Matthew Rojas, Biskupski's spokesman, said the mayor took no issue with the council's action, noting that the administration was aware of the contingent appropriation prior to the vote on the budget.
"It reinforces that in the negotiations over the inland port, the city is speaking with one voice," Rojas said.
Rojas reiterated that the city continues to work with Sen. Jerry Stevenson, R-Layton, who sponsored SB234 and negotiated with the city during the legislative session — even though his versions of the bill were eventually trumped by a new version on the House floor.
"The mayor has repeatedly said that litigation is not in anyone's best interest and it really is the last tool in the toolkit," Rojas said.Comment on this story
Salt Lake City leaders were distraught when a new version of SB234 cleared the House and the Senate conceded to the changes without much debate on the second-to-last day of the 2018 session.
The city called for changes to the legislation, worried that as currently written it sets a dangerous precedent by giving the Utah Inland Port Authority power to ultimately usurp city land use authority and to capture 100 percent of the project area's tax increment.
But negotiations with Gov. Gary Hebert stalled prior to a potential special session after the draft compromise bill didn't adequately address Biskupski's concerns.