Park City Council to Select 5th Member - Process is Scrutinized by KPCW

Jan 23, 2018

The Park City city council tonight is scheduled to name their choice to fill the unexpired term of Andy Beerman’s council seat after he was elected mayor – even though the process may have been tainted. 

The Park City council presumably met in closed session on Tuesday January 16th after they had interviewed all 15 of the applicants over two days. That closed session was noted on the agenda. The first 7 applicants were interviewed on Thursday, January 11th and then the following 8 on Tuesday on the 16th.  

What KPCW has learned since then, is that meeting should not have been closed as state law forbids the council from closing a meeting to quote state statute, “discuss the character, professional competence, or physical or mental health of the person whose name was submitted for consideration to fill a midterm vacancy…”

Both Park City Mayor Andy Berman and Assistant City Manager Matt Dias have reached out to KPCW, but have not provided to KPCW –any records – either a recording or minutes of the portion of the closed session- that should have been open.   

In an email to KPCW just before noon today, Dias apologized for the delay and said he would get back to KPCW ASAP. He added that after discussing the issue with media law attorney Jeff Hunt on Monday– who had originally provided the relevant state code dictating what can and can’t be closed when making a mid-term appointment – Dias wrote that deputy city attorney Tom Daley remains confident that today’s (Tuesday’s) public meeting satisfies both the election code and open meetings act.  

Attorney Hunt noted that state law was changed about five years ago and even though this is the third time in recent memory the Park City Council has made a mid-term council appointment, the other two were likely made before the code change. Still he says, they missed it and even though they thought the meeting could be closed, the fact that it should have been open means that the records of the meeting should also be public.  

Hunt said the city attorneys just looked at the election code which doesn’t talk about the need for these discussions of the candidates to be open. If they had looked at the open meetings act they would have seen that not only the interviews but also the discussion about the relative strengths and merits of candidates needs to be done in open session. He said he think it’s totally reasonable for KPCW to ask for the minutes and recording. That’s the next best thing now  that the meeting is over, he said to get the information out to the public.

Whether they’re trying to protect something that may have  been said  during the closed sessionhe says is speculation, but city leaders should say so. If that’s their concern, he said then why not get back to the station and say that was their concern?

Whether this will have a chilling effect on future discussions, he says it could – but that’s not what this is about.’

The legislature he said has already made that policy decision that notwithstanding the fact that people may not say things in an open session that they would say in a closed season when dealing with an elected office – you’ve got to be able to have a public discussion about that.

When asked if the public process has been tainted and whether the council needs to start over, he didn’t know and said that’s a question for an election expert, but he thinks there are remedies through the open meetings act violation. 

Hunt said he knows that under the open meetings act the only way you can void an action taken in a closed meeting is to file a court action and ask the court to void action taken in an improperly closed meeting. It’s not automatically void by the statute’s terms – he said you have to take action to challenge it. 

Two hours after his first email to KPCW Dias sent a second one  with a 71 page attachment containing information that was shared with the 15 applicants – an email from the mayor, outlining the criteria - the experience and attributes and they were looking for - as well as a copy of all of the applications. No records from the meeting were attached.    

Beerman later sent a text  to KPCW saying  that he has been swamped with the Treasure Hill deadline and will quote, "discuss the mistake in regular session at tonight’s meeting – in addition to the council’s open discussion about the candidates.” City Manager Diane Foster said Monday that list has been narrowed.

Beerman told KPCW he would be available after today to discuss the matter further. As awkward as it is, he wrote, "I appreciate you catching this now so we have time to correct.”

KPCW has also asked city leaders to comment on whether they thought their mistake would invalidate the selection process. KPCW has not received a reply. 

On Monday, city manager Diane Foster told KPCW the council had met in closed session to narrow the number of applicants. KPCW challenged that decision to meet in closed session to discuss the applicants experience and attributes in closed session – and cut the number of applicants - after speaking with attorney Hunt.      

The council’s regular meeting starts at 6 tonight. The appointment of the council member is the first item on the regular agenda.