(UPDATE 1: proposed ordinance)
This question is now applicable to whether the Town is required to provide 24-hour notice of the Development Review Committee’s (DRC) meeting. Unfortunately, the Mayor and staff incorrectly believe that the answer is you don’t need notice. In fairness to them, they believe that there is no meeting of a public body under State Law so there is no need to provide notice, albeit their interpretation is misplaced.
On April 25, 2023, the Town passed Ordinance 2023-04 creating the Development Review Committee (DRC). VULU § 2.10 on DRC Meeting and Meeting Procedures reads:
“The Virgin Development Review Committee shall meet as frequently as needed but in no instance less than once per month. The date and time for DRC meetings shall be set by the Chair with input from its Members. DRC meetings shall be held on the same days of the week or month as well as at the same time and same location so as to create confidence and consistency. All DRC meetings shall be open to the public (for observation only – with comment and input from the public being allowed at the discretion of the DRC Chair). All DRC meetings shall observe the notice and procedural requirements of the Utah Open and Public Meetings Act (Utah Code Ann. Section 52-4-101 et seq). Notwithstanding the preceding, the formality of DRC meetings shall be relaxed with the intent of stimulating constructive discussions and input between landowners, developers, their professional staff and the DRC. In this vein, attendance at DRC meetings by its members or participants may be accomplished by remote electronic attendance.” (Emphasis added).
Utah’s Open and Public Meetings Act requires all committees conducting the public’s business to provide notice of and the holding of the meeting as an open meeting to the public if supported by public funds. Last fall, I discovered that the Town was not providing notice for the DRC and the Capital Improvements Plan (CIP) Committees. I raised my concern, and I thought that this matter was resolved. CIP committee meetings were subsequently noticed, and it appeared so was DRC. I recently checked the public notice website and observed that the DRC’s last public notice was for its January meeting. I inquired as to why DRC was no longer being noticed. Despite the clear intent of this VULU section the Town decided to circumvent the notice requirement by declaring that the DRC is not a public body under Utah’s Open and Public Meetings Act and therefore are not required to provide notice of DRC meetings. This interpretation is incorrect. Why would the Town add language in VULU requiring DRC meetings to meet notice requirements if the intent was not for DRC to notice its meetings?
When examining the Town’s staff’s interpretation against the relevant provisions of the Utah Open and Public Meetings Code, their interpretation is deficient. Utah Code § 52–4-202 requires a “public body” to give a minimum of 24-hour notice of each of its “meetings”. First, let’s examine what is a meeting. A “meeting” is defined as a gathering of a “public body” with a quorum present and that is convened for the express purpose of acting as a “public body” to deliberate about a relevant matter; or take action upon a relevant matter. Utah Code § 52-4-103(5). The DRC does both “deliberate” and “take actions” on “relevant matter”.
Next is the critical definition of “public body” which is defined as “any administrative, (or executive or legislative, or advisory) body of political subdivision that is create by Ordinance; consists of 2 or more individuals; is supported in whole or in part by tax revenue and is vested with the authority to make decisions regarding the public’s business.” Code § 52-4-103(7). If we examine each of the parts of this statute, DRC is a public body contrary to erroneous interpretation of the Town:
- DRC is created by Ordinance 2023-04;
- DRC consist of 2 or more individuals:
- DRC is supported in whole or in part by tax revenue;
- DRC is held at the Old Church which is paid for by tax revenue and utilities are paid for by tax revenue.
- DRC supplies are paid for by tax revenue.
- The official members’ salaries or contracts are paid for by tax revenue, i.e., Zoning Administrator, Town Engineer, and Town Public Works Director.
- DRC is vested with authority to make decisions regarding the public business.
The Town’s explanation for not providing notice is that the committee isn’t paid for by tax revenue. When confronted with the above facts concerning tax revenue, they turn a blind eye and offer no contradictory evidence and rely on their belief that the committee isn’t paid for by tax revenue and therefore not a public body. This is not even a close question, but if it was, the Courts would default to the DRC being a public body since the Utah Court has held that it will interpret “the Utah Open and Public Meetings Act broadly…” Kerns-Tribune Corp v. Salt Lake City., 28 P.3d 686, 690 (Utah App. 1988). Also, other authorities clearly state committees are public bodies requiring conforming to the Open and Public Meetings Act: the Powers and Duties Handbook provides the intent of the act “is to include all committees, commissions, or other groups that may be carring out anything that looks like the public’s business if they are supported by public funds.” The Powers and Duties Handbook, Utah League of Cities and Towns, 20th ed. 2022; and see also, Attorney David Church, Utah League of Cities and Towns, https://youtu.be/PBrcOgE6wQU at 5 minute mark.
“Without public notice, an open meeting is open in theory only, not in practice.” Board of Trustees, Huntley Project School Dist. No. 24, Worden v. Board of County Com’rs of Yellowstone County, 606 P2d 1069, 1073 (Mont. 1980). Even though not necessary with a proper interpretation, I will be introducing an ordinance to require public notice prior to each DRC meeting. What is most disturbing is that the Town simply could have required such a notice without this amendment. Nothing prevents the Town from providing more notice than is required by the act, or in this situation, the exact notice required. If a progressive mayor can misinterpret the statute and VULU provision, I fear that future mayors likewise could do the same. The mayor agrees with me about future mayors.