H.B. 604 Local Government Official Amendments: transcript

Thank you Madam Chair, members of the committee. I apologize. I'm gonna take a second to bring mine stuff up here too really quick and because I'm getting old. Okay. So what this bill essentially does, um, pretty simple in concept. Many states do this currently in the Utah Constitution. Um, there is a provision that prevents, um, uh, those that are in positions of trust or, um, or profit in the, um, executive branch to serve in the legislature. And many states have adopted this rule to apply across all legislative bodies, municipal and otherwise. Um, in Utah we don't have that similar sort of framework and language. And so what this bill essentially seeks to do is to identify that if you are in a position of profit or trust, so that, uh, is, is defined currently under this section as, um, if you're in the executive branch in a paid advisory role, an executive director, a director, a division director, working with an executive branch, um, and, uh, or in a county, um, executive role that would be similar to like a county manager or a city manager, that those positions likewise would be incompatible to be in a legislative role simultaneously. So, for example, to serve on a municipal city council or a mayor role where your function is legislative, the purpose behind the constitution is to ensure that it, there's a separation of powers, um, especially at the state level. Um, but like many states have done, they've made sure that that also applies all the way down through the municipal level as well. Currently, um, uh, doing some searches with our, uh, auditors, um, and with our staff only identified one individual in the state of Utah that may be affected by this right now. And so there is a grandfather pre provision in there that would essentially, uh, allow them to continue to serve until the next election. Um, and, uh, but from that point forward, essentially it would require that if you are currently serving in one of these executive type roles and you're interested in either an appointment or an election to a legislative role, that you would have to essentially choose which branch you want to serve under, and that is the effect of the bill.

Thank you Madam Chair, I'd move that we favorably recommend

I think separation of powers is important. I think the sponsor's done good work. Thank you to the sponsor. I'll

House Bill 6 0 4. Local government official amendments by Representative MacPherson. This bill was heard in judiciary with the vote. 10 0 1

Thank you, Mr. Speaker. Um, so this is an interesting bill currently in our Utah constitution. It defines that, uh, or it states clearly that positions of profit and trust in the executive branch cannot serve in a legislative branch. Um, many states have applied this policy more broadly in statute to include all the way down through their municipal legislative positions as well. Just to clarify that, we believe in a separation of powers and that individuals serving in the executive branch in positions of profit and trust, um, explicitly those, um, cannot simultaneously serve in a legislative branch capacity. So what this bill essentially seeks to do is identify positions that would fall under the, um, executive branch. These are, uh, high level executive branch, um, uh, cabinet positions within the governor's office. Um, would include, uh, executive agency, uh, heads, for example, the head of DPS, um, would be affected. Um, I've, um, uh, also included, um, down into the county executive levels. So we might include county, um, managers or city managers that function as a a municipal executive branch role. Um, and then it makes it clear that if you're serving in an executive function in the executive branch, that you can't simultaneously serve in both, uh, in either an elected or an appointed, um, legislative role either at the state or in the municipal level. Now we've done an analysis of the current, uh, landscape of, uh, Utah. Both, uh, uh, the current, uh, status as well as looking back a little bit historically. And it looks like that currently only one individual in the state of Utah might be affected by this. So we've created a grandfather clause. There's a individual serving on a county as a county manager currently, who's also on a city council within that county. Um, it's created a number of conflicts. Um, and so this creates a, a, a grandfather clause that says that they're allowed to continue to serve out that piece of their, uh, uh, tenure. But at the next, uh, uh, election, they would have to essentially choose one or the other. And then the grandfather clause would self repeal, making this clear. Now, when I first came to the legislature, I had asked, uh, some of our ethics attorneys if, for example, any of these positions could apply currently to us in the legislature. Could any of us serve in any of these named roles here today and serve in the legislature? And the answer is no, they cannot. Um, so the question then came back, um, reciprocally, can anyone in a legislative capacity, in a municipal level serve in an executive branch function at these levels? And the answer I got from our ethics attorney was it was unclear, it was murky. And even though that some states and some courts had ruled in various ways, Utah had not yet done that. So that this bill is seeking to do is just to actually just clarify, um, what that means, but also to set a policy, clarify what it means at the executive at the state level, but also set the policy to match what many other states have done to say if this is true at the state level, it's true all the way down through our municipal levels, that serving in an executive branch function and simultaneously in a legislative branch function, um, at, in a position of profit and trust specifically, would not be the policy that we would seek to do because we wanna keep a separation of powers. Um, I believe that covers the, um, the bulk of this bill. I'm happy to discuss it with any questions.

Thank you, Mr. Speaker. I'd like to reserve the right to make a motion That's o that motion's

Thank you. Will the sponsor yield to a question? Representative MacPherson, will you yield?

I certainly will, Yes. Representative Thurston

Could, could you tell me, uh, so I'm looking at line 37. Can you tell me the difference between an executive director and a director?

Uh, thank you Mr. Speaker for the question. So, um, what I can do is provide, and, and I apologize, I'm looking for it right now in my email. Um, we had the policy analyst, um, pull a list of all of the positions currently statewide in the state of Utah that would qualify under this definition. Um, and, uh, it is a title, uh, based role. Um, but the roles themselves have functions, um, typically listed under either rule or, um, statute right now. And so there would be some definitions in code, but I think it might be more clear if I were to provide a list of all of the positions, not the people, but the positions that might be affected by this, uh, uh, statewide.

Thank you Mr. Speaker with the sponsor yield to just one more question, a follow up Representative MacPherson, will you yield to a follow up question?

Absolutely, yes. Representative

Thurston. Okay, so in my time in the executive branch division director, there were lots and lots and lots and lots of those. Um, could you just explain why you think di division director, which is just a higher level manager, is high enough of a level to be a, a problem, and along with that, how you envision this fitting into the framework of Highway patrol?

Thank you Mr. Speaker for the question. So under the current language, um, the position of executive director, director or division director working in the state executive branch, um, is I believe, and I may have to double check with my, uh, drafter on this, but based on the analysis that we got is separate from executive branch agencies. And so this would be more clarified to specifically talking about the governor's office and not executive branch agencies. Those are, uh, uh, uh, put in a separate section under State Executive Branch Official, where we're looking at, um, um, oh, actually I've got that backwards, sorry. So the, uh, state executive branch official is looking at the executive branch, uh, roles specific to the, uh, governor's cabinet, the executive director, director, division director, or exec of the executive branch, or any paid advisor to the governor. So that section is specifically referring to the governor's office and that the executive branch agencies would be, um, under the other section where it's talking about, um, the specific agency heads. Uh, let me bring that up for you. Let's see. Lemme, I have the list for you. Well, I don't actually have the list for you yet. Let me bring up the list for you really quick and then I can answer that question a little bit better.

Mr. Speaker, I, I just with withdraw that question while he is taking a minute to look that up so I can speak. Is that all right?

Hear you. Oh, sorry. I, if it's okay with the speaker, I would just withdraw that so we don't have to take time for him to just look things up. Thank you. Oh, That I'm still going to, okay.

See. So I, um, I would like to make the motion at this point to, um, amend on line 37, replace the words division director with the word commissioner.

I would, uh,

So there, there's a lot of history to this. There's a lot of history about which, um, which executive branch employees can serve in the legislature. Um, historically, just historically we have said that if you are appointed by the governor, um, and so you're at that level, then you're not eligible to serve legislature and all other employees are. So in my experience working with executive branch agencies, division directors are just promoted. They're, they're managers that are promoted to a higher level. They're not typically at, at that higher level. Now, there are some exceptions to that. There are some divisions within DGO that are kind of higher level, but they're, it's just, it's just a title that's used far too broadly. I think this cast too broad of a net. And so I think the division director just goes too far deep into the, into the flesh, if you will, to be reasonable. So I would, and I also mention commissioner because, um, I'm not sure which executive directors are commissioners and which aren't anymore, and some commissioners are and some aren't. And so I just wanna make sure that we're catching all the commissioners as well, the Commissioner of Public Safety, the Commissioner of Agriculture, uh, and so et cetera, et cetera. So that, that would be my com. Uh, that would work both ways.

Yeah, I, I, I actually think this is a, a good amendment though. I do wanna clarify that. Currently the governor's cabinet includes many of the commissioners. Um, I, I do have the list now finally in front of me that I will forward out, um, to the house if you'd like to see it. But currently that does include, um, about 15 executive directors and a handful of commissioners, um, including many of the ones that were brought up. I still think that this clar, uh, clarification is fine. I don't think it, it, it, uh, uh, changes the intent of this bill and I don't think we're really limiting on who it is intended to cover, but I might clarify on those that it's not intended to cover.

Thank you, Mr. Speaker. Will the maker of the motion yield to a question? Representative Thurston, will you yield to a question?

You, Mr. Speaker. I, I'm just wondering about Commissioner and I, you know, I'm not totally versed in the way the executive branch looks at this, but I know that when we set up a, any commission in theory, that would, anyone who sits on that commission is considered a commissioner. And I don't know if we would consider all commissions to be with working within the executive branch, but, um, do you have any fear that this might, that though we're talking about commissioners and no can picture the people that we're talking about that this might maybe sweep in some other types of commissioners that sit on commissions that we aren't intending to sweep in.

Thank you, Mr. Speaker. Actually, that's a great point. In my mind, I was thinking of the tax commissioners who are full-time employees, they go to work every day. They're at the highest level of the tax commission. Um, I don't think they're all cabinet members. I think that would make me nervous if they were to be also in the legislature. But now that you mention it, there are people who are on the, for example, transportation commission. And I think that might be a concern. Um, I wonder if there is a question here about full-time employee, if maybe that would be the answer is this, that it should be a executive director, director or commissioner who is a full-time employee in the state executive branch, if that would resolve that concern. Thank you, Mr. Speaker.

I'm not sure how I feel about the, the motion to amend it probably is fine. Um, I think there's probably more work that needs to be done generally on this bill. Um, I think when we get to, to bill 600 plus that there's probably a good chance that more work needs to be done with this bill. And I think, uh, maybe a sign of that is that we're wordsmithing the bill on the floor and this work didn't happen in, in committee. And so though, though I applaud the good sponsors work on this bill, generally, um, I think this probably needs a little more work and a little more scrutiny before this passes, uh, the house floor. And, uh, and with that, uh, I still don't know how I'll vote on this amendment.

Thank you Mr. Speaker. I'd like to make a substitute motion to strike lines 37 and 38, which is one BII, leaving only the members of the governor's cabinet and only paid advisors to the governor.

And Mr. Speaker, I, I, uh, need to say that motion also includes striking the same section in the county code. Uh, nevermind. Says the draft attorney just refers to it. Take that I take that back.

I will withdraw my motion. Substitute motion.

I'd like to make a motion to circle, Substitute motion to circle. Can I speak to that? Uh, yes. Representative.

I, when we are wordsmithing on the house floor, it's, it's a little problematic. Um, and I, I would just actually like to reiterate what my colleague in front of me just said, which is, if this impacts one person and this bill actually, uh, won't even impact that person because of the, um, of the, the way it's drafted, it feels like something we can continue to work on and not try and solve right now tonight on the floor. Thanks.

I'm, I'm fine with That.

Uh, I would support that motion. At this point we'll make an adjustment, but I'll, uh, we'll see if we come back here in the next 15 minutes or not.

Thank you Mr. Speaker. Motion to adopt for substitute.

Just briefly. All this does is takes out all the state components. This is just simply saying that if you're serving in a county, um, council or county, I'm sorry, county manager position or a mayor position, you can't concurrently serve in a city, town, or county council position within that same, uh, jurisdiction.

I would like to speak in support of the motion. I appreciate the sponsor working with me. The sub is a lot better. You should vote for it. Thanks.

Speaker, I've already given my, uh, speech, so I'd like to just waive and get us outta here.

I would like to speak in support of the motion. I appreciate the sponsor working with me. The sub is a lot better. You should vote for it. Thanks.

Back to your Representative MacPherson. Mr. Speaker, I've already given my, uh, speech, so I'd like to just waive and get us outta here.