(Taylor Stevens | The Salt Lake Tribune) Within the chambers of West Jordan City Hall, which is pictured here on May 19, 2018, some part of more than 9 out of 10 council meetings were shut to the public — a 48 percent increase in closures compared with 2016. Overall, Salt Lake County cities were slightly more open to the public in 2017 than they were the year before.
Salt Lake County cities were slightly more open to the public last year than they were in 2016 when it comes to how often they moved a portion of each meeting behind closed doors.
But some cities shut out the public significantly more frequently in 2017, according to a Salt Lake Tribune analysis of meeting minutes across the 16 cities in the county. At the top of that list was West Jordan, which closed some part of more than 9 out of 10 council meetings — a 48 percent increase in closures compared with 2016.
“That seems way too high,” said Eric Peterson, a board member of the Society of Professional Journalists. “Even if it’s just in portions, that seems to be … that feels like to me like there’s a lot of decision-making where the city officials seem to have also taken for granted who their bosses are.”
David Brickey, West Jordan’s city manager and former city attorney, said he thinks it’s fair to question the high percentage of closures. But, he said, each complied with the state’s Open and Public Meetings Act.
“I don’t run away from that number,” he said. “I think we’re trying to be proactive.”
To close a meeting, state “sunshine” laws require public bodies meet a range of requirements, such as stating the specific legal reason for the closure and conducting a roll-call vote that must pass by at least a two-thirds margin.
Public officials are prohibited from voting on public business or bringing up any other topic in closed meetings. While a private discussion about “pending or reasonably imminent litigation” or “the character, professional competence, or physical or mental health of an individual” would be legal, conversations about tax increases or road projects would not.
SHADOW CITIESWest Jordan • Closed a portion of 93 percent of council meetings.Cottonwood Heights • Closed a portion of 75 percent of council meetings.Bluffdale • Closed a portion of 65 percent of council meetings.
West Jordan saw a number of land disputes, as well as “significant” changes in leadership in 2017, that contributed to its higher number of closed meetings, Brickey said.
Controversial Councilman Jeff Haaga, who had been charged with a hit-and-run misdemeanor after drinking at a local tavern, stepped down last year. West Jordan also lost its fire chief, police chief, public works director, senior engineer and director of personnel, Brickey said.
Last year, the 5-year-old civil-rights lawsuit of a former police officer claiming malicious prosecution and retaliation ended with the jury awarding plaintiff Aaron Jensen nearly $3 million in damages — a verdict the city said it would appeal. The city is currently involved in eight open lawsuits as a defendant or plaintiff, Brickey said.
Though the number of closed meetings increased to 93 percent in 2017, Brickey said the council has simultaneously stepped up its efforts to increase transparency.
“When I became the city attorney, one of my recommendations was for the purposes of transparency, you should list [the reason for the closure] in the minutes without, you know, going into any detail,” he said. “Our minutes will reflect that when they went into the closed session, we’ll have talked about a property issue for 12 minutes. If we go into a litigation matter, I actually have listed the litigation matter by minute.”
But it’s not always easy to determine whether a city closed a meeting within the scope of the law. About the only avenue available is to file a lawsuit and ask a judge to review the audio recordings or minutes of the meeting and release them if the meeting was improperly closed.
“The public is the boss and has the right to be a part of meetings, to have access to discussions that are affecting really their tax dollars, their livelihood, their communities,” Peterson said, noting that anyone who thinks a meeting has been improperly closed should file a complaint. “We need transparency to make sure there’s a check on what’s going on and to help the best kind of policies come forward.”
HOW TO OBJECTAnyone can challenge a move to close a meeting of a city council or other public body if there is indication of an improper closure. You may stand and ask to be recognized to make such an objection if the public body: • Fails to state a specific exemption to the Open and Public Meetings Act in its motion to close. • Fails to take a roll-call public vote on the motion. • Fails to approve the motion by a required two-thirds majority.You also may object if there is reason to believe a vote will be taken behind closed doors. Votes are not allowed in such sessions.
Three of the 16 cities examined closed portions of a majority of their meetings, while the others kept most of their sessions open to the public. In 2016, five of 14 cities closed portions of most of their meetings. No data were collected for Cottonwood Heights or Millcreek for 2016.
David Church, the general counsel for the Utah League of Cities and Towns, frequently conducts municipal training on the state’s Open and Public Meetings Act. The law favors transparency, he said, and cities are generally not required to close meetings, even if a topic of conversation falls under the state’s criteria for closure. But it’s not necessarily in the public interest to discuss some things in the open, he said.
“I don’t think it would ever be important, for example, to discuss strategy on pending or reasonably imminent litigation in public,” he said. “I don’t think that would ever be … in the public’s good or in the public’s best interest.”
The wide range in how often individual cities close portions of their meetings could be due to development disputes in fast-expanding cities, Church said, or simply a result of different organizational structures.
“I would expect, for example, that … high-growth cities [and] six- and five-member council forms of government, where a mayor sits as a member of the council, would hold lots more closed sessions than a council in Taylorsville, where they’re in the mayor-council form and the mayor doesn’t chair the council and they have separation of powers,” he said.
SUNSHINE CITIESMurray • Closed a portion of 8 percent of council meetings.Midvale • Closed a portion of 12 percent of council meetings.Millcreek • Closed a portion of 15 percent of council meetings.Sandy • Closed a portion of 26 percent of council meetings.
Under West Jordan’s current form of government, the executive leadership role is in the hands of the city manager. But last November, residents approved a new form, which will take effect in January 2020 and will shift that control to the city’s mayor.
Cottonwood Heights — which has a council-manager form of government with four council members, a mayor who acts as the chairman of the council and a city manager — closed a portion of the second-highest number of meetings in 2016, at 75 percent.
The Tribune could not collect data for Cottonwood Heights in 2016 because it did not have minutes available from nearly a dozen meetings — a clear violation of the Utah Open and Public Meetings Act. The city’s recorder produced the missing minutes nearly three months after The Tribune published its 2016 analysis.
Mayor Michael Peterson, who was a council member in 2017, said the high number of closed meetings in his city can be attributed to the quality of communication among staff and council on issues that fall under the parameters for closure.
He rejected the notion that the percentage could point to mismanagement or misapplication of the law, noting that the council always has an attorney weigh in on its decision to shut its doors. And, he said, each city has different circumstances that can contribute to a high or low number of closures.
“Like I tell my kids, ‘It doesn’t have to be the same to be fair or right,’” Peterson said. “But also I teach them that I can’t say how you feel. So if constituents feel that it’s too much or it’s not enough, then that would concern me. I’d want them to understand that it is strictly for an identified purpose and it’s very clear and it’s never misused.”
Since the council often enters a closed meeting for just a few minutes of a council meeting, he argued that the data didn’t provide a complete picture of openness within a city.
At the other end of the spectrum, all but a portion of two of the city government meetings in Murray remained open to the public in 2017. The city also closed the fewest meetings of all the cities examined in 2016.
“It’s pretty clear that when you’re doing the business of the public, you need to do it in public,” he said. “So there are very, very few instances where it’s really necessary to close a meeting at all in my opinion.”
METHODOLOGYThe Salt Lake Tribune looked at all regular, special, emergency and work session city council meeting minutes for 16 cities in the Salt Lake Valley to collect data on how frequently each closed a portion of its meetings. Generally, work sessions and regular meetings that occurred on the same day were counted as a single meeting, to account for differences across cities in reporting these minutes. The data collection did not include Alta, which is a township.