“No person holding any public office of profit or trust under authority of the United States, or of this State, shall be a member of the Legislature...”
-- Article VI, Section 6, Constitution of the state of Utah
That prohibition, modeled after a similar provision in the Constitution of the United States, appears about as straightforward as can be. If you are a member of the Utah Legislature, you can’t have another state job. Or a federal one.
(Well, Utah makes exceptions for posts in the state militia, a notary public or as a “postmaster of the fourth class.”)
The authors of the federal Constitution were adamant about keeping the three branches of government apart from, even rivalrous of, one another.
“Ambition,” James Madison wrote, “must be made to counteract ambition.”
Gov. Spencer Cox and leaders of his Utah Republican Party claim to honor the Constitution, but they collectively seem unacquainted with the idea of power being balanced or separated. Not a surprise, given that they hold a supermajority in the Legislature and a monopoly on all statewide and federal offices in Utah.
They have shown particular contempt for the letter and the spirit of the Utah Constitution by appointing a member of the Utah House to a post in the governor’s cabinet and having him hang onto his legislative seat, if just long enough to help fix the election of his House successor.
And, although it doesn’t violate any constitutional provisions, Cox was also wrong to hire a member of the Salt Lake County Council to fill a new post in his cabinet without expecting her to give up her council seat.
In June, Cox named state Rep. Joel Ferry, a Republican from Box Elder County, to be director of the state Department of Natural Resources. Ferry started the job in an acting status, pending Senate approval of the nomination, likely to come later this month.
But Ferry did not resign his seat in the House until Aug. 26. He also remains a candidate for the District 1 House seat in the November election.
Cox says Ferry’s double dip was not unconstitutional because, once on the job at DNR, Ferry stopped collecting his legislative pay and stepped aside from any committee assignments or other roles that would involve his own department.
But that’s not what the Constitution says. It says you can’t be a lawmaker and an executive branch official at the same time. No exemptions are given for waiving a lawmaker’s pay (which is too small to count) or abstaining from certain votes.
A lawmaker who is also an employee of the governor, even for a short time, is not an independent voice for his legislative constituents. Abstaining from certain votes disempowers his or her constituents, even as a continued presence in the House gives that member influence in two of the three legs of state power, able to lobby colleagues, trade votes or do other things that clearly violate the whole idea of the separation of powers.
With Ferry now out of the House, Cox might argue no harm/no foul. If it weren’t for a clear scheme to hijack the process of choosing Ferry’s replacement.
If, as is likely in such a bright red district, Ferry’s ghost is reelected in November, and he resigns from the Legislature again, his seat will be filled, not by an election open to all of the district’s voters, but by a handful of Republican state delegates. It is such a narrow pool of voters that it goes beyond simple partisanship to a small clique of good ol’ boys controlling the process.
Democrats rightly petitioned Lt. Gov. Deidre Henderson, who runs state elections, to disqualify Ferry from the ballot. She declined to do so, claiming there was no established legal process to guide her.
There should be.
If Utah’s governing class wasn’t so intent on frustrating the democratic process wherever possible, they would pass a law that makes it clear that members of the Legislature not only can’t also hold an executive, or judicial, post, but that they can’t run for the Legislature while holding that other job.
Cox also is out of line naming a member of the Salt Lake County Council, Aimee Winder Newton, to a new state post, director of Utah’s new Office of Families, without expecting her to give up her council seat.
It is a totally unnecessary problem. The Office of Families is just another layer of bureaucracy, a useless pander to the state’s right wing. And, if the point is to bring more women into government, then Cox should find more women to serve in government, not give two jobs to one woman.
It is clear that there will be times when Winder Newton will have to decide whether to side with Cox and his policies or her Salt Lake County Council constituents and their needs, on issues such as local control, state spending or big projects such as the controversial Little Cottonwood Canyon’s proposed gondola. It is unclear why she would want to be placed in such an uncomfortable position.
State laws should be changed so that no government official in Utah will be asked, or allowed, to serve two masters at once.
