HB51 Fifth Substitute Passes Senate

Just a quick update. Late Wednesday afternoon HB51 Water Right Forfeiture Protection passed the Senate and will now be sent back to the House for concurrence. Concurrence is expected today and the bill will then move to the Governor's desk for his signature.

Thanks to all who helped passes this landmark legislation for Utah's cities and towns.

Sifting Begins for the '08 session

As we enter the final full week of the 2008 legislative session, sifting has begun. Meaning that only priority bills will be placed on the reading calendar for consideration. If you still have a bill to get to committee or still have a bill in its house or origin it is now time to start worrying. If, however, you are trying to stop a bill and one of the previous still apply, then life is looking pretty good right now.

So far, the ULCT has faired pretty well with only a few lingering bills that cause some concern, and much of our work completed on the bills we are promoting. Today also marks the final Legislative Policy Meeting for the 2008 session. I will provide a detailed recap this evening, but here are a few bills we are following and there status.

Major Bills We Are Promoting:

• HB51 Water Forfeiture – Through the House and Ready for Senate Consideration
• HB153 Impact Fee Amendments – Through the House Ready for Senate Consideration
• HB177 Geologic Hazards Zoning -- Through the House Ready for Senate Consideration
• SB20 Municipal Forms of Government – Through the Senate, In House Committee
• SB72 Justice Court Reform – Senate Third Reading Calendar
  

Major Bills of Concern:

• HB166 Minutes of Open Meetings – Passed House, To Be Considered in the Senate
• HB264 Citation Quotes – Held in the Senate – Will not pass
• HB293 Certified Private Bldg. Inspectors – Passed House, our amendments ready to be placed in the Senate
• HB454 Regulation of Riparian Zones – Still in the House, Going to Committee
• SB127 Underground Utility Locations – Still in the Senate – Will not pass

Until Next Time, Enjoy

ULCT Priority Issues Update

Water Forfeiture – HB51

The water forfeiture protection bill is moving well. It has already passed the House with overwhelming support and early this week it passed out of the Senate Natural Resources Committee with a unanimous vote. The bill has been amended and substituted through the process, but still includes the forfeiture protections we have sought from the outset. While an additional amendment is likely to come on the Senate floor, it looks like this bill is largely resolved. We should be seeing it on the Senate floor some time next week.

Justice Court Modifications – SB72

While this bill started out fairly contentious, resolution between the ULCT and the Courts was reached early in the session. The bill is moving slowly but should not see any hiccups. The bill is currently awaiting a hearing on the Senate floor and should be moved to the House for consideration this week. The compromise position on the bill includes the following provisions:

• We scrapped the idea that judges would become state paid officials (They will still be maintained and local appointed and accountable government officials)
• We scrapped the mandatory pay structure which tied salaries directly to district court judge salaries, and instead provided a minimum and maximum salary range and required that pay negotiations mirror those of the average municipal employee, so if the average employee receives a 3% pay increase so does the judge, but if no pay increase is granted to the average employee then no pay increase can be granted to the judge,
• We created a local nominations process that is governed by local officials and did away with the original concept of having a standing state nomination committee
• We also created a retention election process for appointed justice court judges. The election will be conducted every six years and will be done on a county-wide basis.
  
  We feel very comfortable with this middle ground and are happy to report that the most contentious points of the original proposal (see item 1 and 2) were resolved to our satisfaction. Since a compromise has been reached the bill should move forward without much additional fan fare.

Forms of Government – SB20 Third Substitute:

This bill has probably been one of the most scrutinized and contentious bills on the session for Utah’s cities and towns, largely due to some early misunderstandings of the bills original intent and purpose. While the ULCT has been involved in the process from the outset, he have long held the belief that clarification of Title 10 in this area is warranted, but we were committed to ensuring that the structured power balance that exists today is not disrupted in the favor of either councils or mayors. We simply wanted to maintain the current power balance between the two. Due to early drafting problems, the bill appeared far more damaging to a mayor’s power than was ever intended. After substantial modifications, the bill now provides a great deal of protection to mayoral authority while also allowing the necessary flexibility in municipal governance to delegate administrative functions to department heads, city managers and other paid professionals.

While some would like you to believe that the bill allows for the mayors authority to be usurped by a rogue council majority, the bill actually provides additional protection, that does not exist in the current law, to the mayors authority from being delegated without his/her consent by stating that the mayor has the following default powers and if these powers are altered, the mayor either needs to consent or a unanimous vote of the council is needed:

(a) is the chief executive officer of the municipality to whom all employees of themunicipality report;
(b) shall:
(i) keep the peace and enforce the laws of the municipality;
(ii) ensure that all applicable statutes and municipal ordinances and resolutions arefaithfully executed and observed;
(iii) if the mayor remits a fine or forfeiture under Subsection (1)(c)(ii), report theremittance to the council at the council's next meeting after the remittance;
(iv) perform all duties prescribed by statute or municipal ordinance or resolution;
(v) report to the council the condition and needs of the municipality; and
(vi) report to the council any release granted under Subsection (1)(c)(iv); and

(c) may:
(i) recommend for council consideration any measure that the mayor considers to be inthe best interests of the municipality;
(ii) remit fines and forfeitures;
(iii) if necessary, call on residents of the municipality over the age of 21 years to assistin enforcing the laws of the state and ordinances of the municipality;
(iv) release a person imprisoned for a violation of a municipal ordinance;
(v) with the council's advice and consent:
(A) assign or appoint a member of the council to administer one or more departmentsof the municipality; and
(B) appoint a person to fill:
(I) a municipal office; or
(II) a vacancy on a commission or committee of the municipality; and
(vi) at any reasonable time, examine and inspect the official books, papers, records, ordocuments of:
(A) the municipality; or
(B) any officer, employee, or agency of the municipality.

Since current state law allows for these powers to be removed from the mayor by ordinance by a simply majority vote, you can see that the new law provides far more protection to mayoral authority than the existing law. With that in mind, it has been hard to understand why some would believe that this is hurtful to mayors. As you can imagine, the ULCT is quite concerned with maintaining the authority of municipal mayors and we believe this bill does just that. Once this issue was clarified to members of the Senate it passed out of the Senate in overwhelming margins. It is now in the House for consideration and will be heard in committee this Thursday. We are hopeful that the clarifications address any concerns that existed and the bill will move forward smoothly.

We will let you know how things go as time progresses.

Privatization:

To our satisfaction, most of the “privatization” efforts have been scrapped during this year’s session, but we did finally agree on some language for one bill that will have nominal impact of some cities and towns. SB45 requires first and second class cities to conduct an inventory of all government activities and determine if the activities “compete” with the private sector. In addition the bill asks that the city elaborate on any efforts that have been made to privatize aspects of the services they provide. While the bill originally had the potential of creating an unhealthy and indefinable distinction between “core government” and “non-core government” that language has been scrapped at the ULCT’s request and the bill now simply requires an inventory to be done every two years. Do to the limited administrative burden that will be caused by creating the inventory, the ULCT policy committee has decided to support the bill now that the contentions “core government” language has been removed. The bill has now passed the Senate and is now on the House floor for consideration. This will likely be the only “privatization” bill to pass this year that has a municipal impact

Land Use:

Land Use issues are moving along smoothly. It has helped that most of the contentious “stuff” was resolved prior to the session beginning, and it appears that the bills we have had a hand in drafting are moving well. SB196 is on the verge of passing out of the Senate without much fan fare. HB153 and HB177 have already passed out of the House and are awaiting consideration in the Senate. The only bill that is having any issues is HB177. This bill addresses the concerns that have been raised relative to zoning in sensitive lands areas. It was drafted by ULCT staff and as it currently stands, it is a very helpful bill in explaining how sensitive lands zoning should be conducted. There have, however, been some rumblings that the bill may be hijacked in the Senate where language may be added that would largely prohibit sensitive lands zoning. So, in short we are playing some defense to make sure those amendments are not made. We should have a good idea as to the validity of those threats within the next few days and will let you know the outcome as soon as we can. Other than that little lingering issue, all is well on the land-use front.

Well that about does it for the big priorities. We will be sure to keep you up to speed as we head into the home stretch.

Eminent Domain -- Revisited

H.B. 323 1st SUBSTITUTE - Eminent Domain Amendments

BACKGROUND

· Two years ago, the power of eminent domain for obtaining trails, paths, or other ways for walking, hiking, bicycling, or equestrian use was precluded by a statutory change.

· H.B. 323 seeks to further clarify those things that constitute a trail by indicating that a park that operates as a trail is still considered a trail for the purpose of contemplating the use of eminent domain.

· Line 47 of the current bill, however, goes much further than necessary in protecting trails from the improper use of eminent domain by precluding its use for paths, lanes, or other ways for emergency access.

· A true "emergency access" is the very type of use that may and should be subject to this power. Much like utility easements, these easements are used to get emergency vehicles and personnel to a location in the fastest way possible.


WHAT THE SUBSTITUTE DOES

· The first substitute language would confirm that paths, lanes, and other ways for emergency access could not be used as a pretext for public paths, equestrian trails, bicycle paths, or walkways.

· Planning and zoning provides a means for preserving emergency access once a property owner seeks to develop their property. Also, while the local governments may have the right to access property in the case of an emergency, they do not have the right to require that an easement remain clear for the use in an emergency where the property is neither being developed and where no emergency is currently occurring.

· There is a gap caused by this bill without this amendment. Trees, sheds, agricultural buildings, walls, and other obstructions may prevent emergency vehicles and personnel from reaching a victim in as short a time as possible, none of which can be avoided by way of proper planning..

· To generally deny government the ability to take and preserve an easement for emergency access would be comparable to failing to preserve an access for the accommodation of utilities or other essential services.

· Where government is required to give these essential services, they should not be unduly limited in their ability to reasonably acquire access and in the rare case, use eminent domain for this purpose.


Bill Text: http://le.utah.gov/~2008/htmdoc/hbillhtm/hb0323.htm

Municipal Form of Government -- Trying to Strike the Balance

Many of you may have been hearing about potential concerns with the Senate Bill 20 (Changes in Municipal Form of Government). In attempt to help clarify the situation and clearly show what the initially proposed bill actually did, we have included a set of explanations for what the proposed bill contained.

In addition, we will also discuss the changes that were made by way of an amendment today (Monday, February 11) on the Senate floor which completely undermines both mayors and councils universally. Obviously with the amendments, the ULCT and all cities and towns should have concerns with the legislation, as it completely upsets the current operation of just about every city and town in Utah.

While it is true that some of the early drafts were prepared a little hastily and had some unintended consequences, the second substitute to the bill adequately struck the same balance of power that exists today in all of your cities and towns.

The ULCT has worked long and hard to ensure no form of government or individual government was detrimentally affected and believes the initial proposed bill strikes that balance. While some would like to remove the option of allowing a professional manager to assume some of the day to day responsibilities of governance, we have to be cognizant of the 80+ cities that currently employ city managers that do just that. The intent behind the bill was to simply clarify existing law to avoid future problems with the confusion that exists in the current statute relative to the existing forms of government, and to not upset any existing form of government with monumental shifts in power that would be ushered in by statute.

The ULCT would not be supporting a bill that stripped councils or mayors of their authority, and believes this bill simply clarifies the current options.In short, the original bill (without the floor substitutes) did the following:

· Clarifies the intent of existing forms without changing any balance of power between councils and mayors.
· Provides a default delineation of powers which statutorily makes the mayor the CEO.
· Requires that any change in form of government requires a vote of the people.
· Allows for flexibility by municipal ordinance to delegate authorities to mayors, councils or administrative staff for specific administrative duties.
· Specifies that there are specific duties that are inherently vested in the mayor and does not allow those powers to be delegated.
· Specifies that there are specific duties that are inherently vested in the council and does not allow those powers to be delegated.
· Cleans up the existing statute through a comprehensive recodification.

So, what did the floor amendments do to the bill?

Well, through amendment, the bill now says that any changes in the powers of the mayor require the affirmative vote of the people. As mentioned earlier, this legislative change is equally punitive to both mayors and councils by prescribing that any change in function, whether it be an enhancement or reduction of powers will require a vote.

So what kind of powers are we talking about?

As currently drafted it would include any change in power. So if the mayor decided that the city administrator should conduct performance evaluations for employees instead of the mayor, it would require a vote of the people, or vice versa. If the Mayor wanted to delegate the authority to review all checks and receipts to a financial adviser or manager, it would require a vote of the people. If, in a small community, the mayor wanted to delegate some of his authority over departments to individual council members (spread the administrative burden) it would require a vote of the people. Please remember that the countervailing point is also true, if the council and mayor wanted to grant all, or some, of that responsibility in a mayor that may not have that responsibility today, it would require a vote as well.

So the question then becomes -- do any of these changes constitute a "true change in form" or is it simply divvying up responsibilities? If changes of this nature are not considered fundamental change, then why should it require a vote?

Hopefully you can see how this could easily get out of control, with minor changes in day to day operations now being considered fundamental changes in governance and requiring a vote. This has never been the spirit or letter of the law or constitution. While the law recognizes the need for voter approval on changes in form, it is contemplated only under the notion of fundamental change in governance. I am still trying to figure out how ANY change in function, regardless of scale, of an individual can be universally categorized as a fundamental shift in governance -- which is how the bill now stands.

We obviously need to strongly oppose the bill as drafted to protect mayors, council members and other administrators from the overstepping aspects of the amendments.

We will be working with the interested parties to make sure that they understand the litany of unintended consequences of the proposed amendments to the bill, and would encourage you to do the same.

For more detailed reading of the bill, please review the link to the bill text below.

Municipal Government Amendments - SB20 -- Second Substitute

Transparency in Government -- Cost/Benefit Analysis is Needed

The ULCT has had some concern regarding the administrative burden that would accompany the passage of SB38 Transparency in Government Finance in its original form. While Utah’s cities and towns are extremely interested in making budgetary information readily available to the public, they have requested that the legislature move methodically through the process of identifying which budgetary documents will create the awareness that is being sought while also recognizing the burdens that will accompany the process of keeping this information current and useable for the general public. In short, we would encourage a cost/benefit assessment to be conducted to ensure that we are focusing on the information that is being requested without overwhelming the system with information that will be largely unused and administratively difficult to convert and make readily available on a centralized website. System compatibility, redacting costs, conversion costs, administrative time and other factors should all be evaluated to ensure that the value received is compatible with the costs associated.

With that in mind, the ULCT has recommend the following steps toward additional transparency in government finances:

1. Centralize currently available information in one location for public access; require that this information be made available.
a. Current documents include municipal budgets, audits and surveys of finance (most available on State Auditor’s Website).
b. Could also centralize much of the budgetary information that is available on the tax commission website.

2. Create a study group to evaluate information that should be made available. Conduct evaluation in preparation for the 2009 session.
a. Survey state and local governments to determine which budget documents are being frequently requested to ensure that we are focusing on information the public is requesting.
b. Evaluate system sophistication to see how compatibility and document conversion will occur.

3. Run Legislation in 2009 to make information that has been identified by the study group available on the website.

4. Run legislation this year with a delayed effective date of 2010 to allow for the study to occur over 2008 with the information requirement passed in 2009 and final implementation due in 2010.

5. Stagger the implementation of the legislation. In year one (2010) focus on a state agency to “test” the use-ability of the system. In year two (2011), work out any “kinks in the system and move to implement more broadly to state agencies and local governments. (Keep in mind that the budget, audit and survey of finance will be available with the passage of this year’s legislation, and the staggered/delayed effective date will only apply to the additional information that is deemed appropriate by the study committee.

With these steps in place, we feel confident that greater transparency can be accomplished with minimal impact of the governments charged with making this information available.

Municipal Issues Moving Slowly

As we move through the third week of the 2008 legislative session, it appears that many things are going to be different. Not only have we moved back to the "big house", but it appears that municipal issues are receiving far more dileberation than they have in year's past -- AND THAT IS NOT A BAD THING.

Lets just look at some of the key priorities for the ULCT this year.

SB-72 Justice Court Reform:
This much anticipated bill, which has been covered extensively in the press and has had many local officials anxious over potential changes in governance has yet to have its first committee hearing. Now thats not to say that work has not been done on this issue, as we have been meeting on a daily basis with the interested parties and the bill sponsor to work out a solution to this problem, but it is certainly a departure from the norm to work in this fashion and avoid the committee process in an attempt to work things out prior to the big committee/floor fight. It is likely that this bill will go to committee late this week, but we are confident that many of the large concerns for municipalities will be worked out prior to that committee hearing -- Certainly a refreshing approach.

Privatization Issues:
As with Justice Courts, it has taken nearly three full weeks to get the kinks worked out of the privatization issues. Two bills SB45 and HB75 have been substantially revamped to address concerns that were raised by the ULCT and local governments. These bills just went to committee this week and were largely hammered out prior to the committee hearing process. Since these bills were subcommittee approved, it has been odd to have them delayed this long, but certainly a refreshing approach to address our concerns prior to committee to avoid the protracted battles that have occured in years past.

Taxation and Government Finance:
Again with both SB29 and SB38, which largely deal with property tax issues (SB29) and transparency in government finance (SB38), we have had significant opportunity to provide constructive feedback on both bills to avoid large committee fights. We successfully addressed the concerns we had with the original version of SB29, and are now unaffected by the current legislation (all of this was done prior to the committee hearing). In addition, we have provided significant feedback on SB38 and believe the sponsor is receptive to our concerns and proposed approach. While SB38 is now on the Senate floor for considereation, we have had a great opportunity to voice our concerns in the Senate and are hopeful that amendments will be offered to address our concerns with the legislation. -- Again a refreshing approach to the legislative process.

Hopefully the trend will continue and the writing of this entry will not "jinx" our efforts.

Thanks again for all of those that help with the municipal government effort. Lets hope the following weeks follow suit.

Until next time... Enjoy.

Policy Meeting (Monday, February 4th)

Just a quick reminder for the upcoming ULCT Legislative Policy Meeting:

The meeting will be held at noon in room W135 of the Utah State Capitol Complex

Hope to see you there.