Utah media lawyers say GOP lawmakers break the law with closed caucuses

Attorneys for the state's major news outlets say Utah Republican lawmakers are breaking the law by holding closed-door meetings where they debate and vote on bills, most notably their recent secret votes to defeat a proposal to help provide health care coverage to Utah's low-income uninsured.

"Utahns deserve better," the lawyers for the Utah Media Coalition wrote in a letter hand-delivered to Republican legislative leaders Tuesday. "Utah has a long and proud tradition of conducting the public's business in public. Where people govern themselves, transparency in the conduct of the people's business is critical to maintaining public trust and accountability."

The Media Coalition is made up of The Salt Lake Tribune, Deseret News, Standard-Examiner, Daily Herald, The Spectrum, Herald Journal, The Associated Press, KSL, KUTV, KTVX, KSTU, the Utah Press Association and the Utah Headliners chapter of the Society of Professional Journalists.

For at least two decades, Senate Republicans routinely have held closed meetings to discuss legislative proposals and have taken "straw votes" on legislation behind closed doors. House Republicans, in recent years, have generally opened their gatherings to the public, but they have voted to close their meetings to debate and vote on "caucus positions" on some of the most contentious issues.

Both bodies cite an exemption to the Open and Public Meetings Act that permits a "political caucus" to be closed.

That was the case when the House and Senate GOP members met to deliberate on Utah Access Plus, a proposal to expand Medicaid coverage to help provide health insurance to an estimated 125,000 low-income Utahns. The House Republicans voted overwhelmingly to kill the plan; senators from both parties were surveyed by phone and also opposed the measure by a large margin.

Senate Majority Leader Ralph Okerlund, R-Monroe, said an overwhelming majority of Republican senators favor closing their caucuses because it gives them an opportunity to discuss issues informally and frankly "without grandstanding and folks that are playing games."

"It's just a chance to be informal, and I think it's led to good government," Okerlund said. "Unless there are some really extraordinary circumstances, there's plenty of opportunity for the public to be involved in the process and see what's going on."

House Majority Leader Jim Dunnigan, R-Taylorsville, said the House has "made a real effort to have our business done in the open and be transparent."

"There are not any votes or discussions that take place in caucus that are binding," he said. "The only binding votes are taken in public committee meetings or in the House or Senate chambers, and those are open to the public — they're live-streamed [online], and [residents] can see audio or video."

Dunnigan said of the 23 caucus meetings in the past year, only one — the meeting where lawmakers debated the Utah Access Plus plan and ongoing litigation over election reform issues — was closed in its entirety. Portions of six other caucuses were closed, half of those to discuss the election-reform lawsuit.

"I look for reasons to keep our caucus open," Dunnigan said. "Three-fourths of the meetings have been completely open, and almost all of the others have been open for a good part or a majority [of the meeting.] … I think we actually have a good track record."

Both leaders also noted that they hold media briefings after the closed caucus to talk to reporters about what was discussed. Members of the bodies are discouraged from talking about anything that transpired behind closed doors.

Okerlund said legislative leaders have met with the Legislature's legal counsel, John Fellows, and been advised the closed caucuses are legal, from his perspective. Neither expects the practices to change in the upcoming session.

However, in the letter to legislative leaders, attorneys Mike O'Brien and Jeff Hunt argued that allowing a super-majority of both chambers of the Legislature to hold private meetings under the "political caucus" exemption undermines the entire purpose of the open-meetings law.

"If that construction of the Act were correct, the 'political caucus' exception would effectively swallow the rule, and the fate of all legislative proposals could, for all practical purposes, be decided in secret," they wrote.

Even if they legally could hold the closed meetings, it doesn't mean that they should.

"Opening caucuses to the public and the media promotes public understanding of the legislative process, public accountability and public trust," the letter said.

Terry Orme, editor and publisher of The Tribune, said the secret Medicaid meetings were "the straw that kind of broke the camel's back" and prompted the Media Coalition's letter.

"It seemed that that was so outrageous that such an important policy debate would happen behind closed doors and that a representative's constituents wouldn't know what he or she said or even how he or she would have voted had a vote been allowed to occur," Orme said. "It just seems that that is a bad way to make policy, and that was just an extreme example that provoked us to act."

Orme said that at this point, the news-media outlets are raising the issue and voicing their objections, hoping legislative leaders respond to the concerns during the upcoming legislative session.

"Whether we take that to a next step, to a legal step, whatever that may be, I think we're not threatening that at this time," Orme said. "We're not saying, 'If you don't do something we're going to file a lawsuit.' "

gehrke@sltrib.com

Twitter: @RobertGehrke