Policy Briefs:

 

Concern about Growing Imbalance of Power in Utah Governance

Utah Citizens’ Counsel, January 2024

Like our nation’s constitution, the Utah Constitution creates a representative democracy with three branches of government—executive, legislative, and judicial. Although each branch has independent authority and separate responsibilities, they necessarily overlap, and a creative tension exists between and among them. Checks and balances are meant to prevent excessive power by any one branch. The challenge is for the branches of government to function efficiently and focus together on promoting the general welfare rather than on special interests with undue power and corrosive financial influence on public policy. The goal has been to achieve majority, democratic rule while maintaining sensitivity to minority rights in a pluralistic society.

Over the past few years, the Utah Citizens’ Counsel (UCC) has watched the Utah Legislature pass laws that we believe create an imbalance among the three branches. Similarly, the Legislature has been increasing its power by amending the Utah Constitution and eroding the constitutional right of citizens to legislate by initiative. Moreover, we have also seen state legislative encroachment on city and county responsibilities that are historically local.

The UCC is highlighting four areas of concern with examples of legislative actions that suggest an evolving pattern that warrants public attention. “Learn more” links to supporting material in each area of concern are provided. UCC hopes that government leaders, influencers, and interested citizens alike will examine this document and help disseminate it more broadly in hopes of ensuring that the Utah Legislature does not create further imbalances that weaken our democracy.

Changes to the Authority of Utah Cities and Towns

In state government, municipalities are the governmental units closest to the people and in a better position to determine many local needs and regulations. Local decisions should be subject to state control only when necessary to ensure statewide uniformity for the health, safety, and welfare of the public. Here are a few recent examples of state interference when conflicts arose between business interests and municipal regulations:

  1.  The Moab City Council has at least twice had to intensely negotiate to partially offset undesirable state changes to its ordinances: (1) one in 2023 that limited its ability to prevent developers from buying historically low-density affordable housing and replacing it with luxury townhomes, and (2) another in 2022 that limited its ability to lower the noise level of ATVs (all-terrain vehicles) on city streets. Strong lobbying by developers or other business advocates influenced the Legislature to restrict Moab’s authority.
  2. Summit County’s authority was overturned by a last-minute provision in a 2023 bill that permitted developers to build a housing project adjacent to a transit hub at Kimball Junction, despite the County’s ongoing negotiations with the developer for changes amidst concerns about traffic congestion, school crowding, etc. The developer successfully lobbied the Legislature to remove the County’s authority–without opportunity for public hearings, public input, or legislative debate. (The developer was eventually thwarted in court for a technical failure of its own making.)
  3. Two homes in Draper collapsed in spring 2023 because a developer built them on land prone to landslides. Draper officials said that the state Property Rights Ombudsman office had indicated that the city could either approve development projects or buy out the developer. “Buyer beware” is hardly a sufficient safeguard for the public.

What‘s next in 2024?  A failed 2023 bill is being narrowed and will emerge as a financial tool for developers to access tax-free capital markets to bond for money to build infrastructure for building lots that have been zoned and approved as subdivisions by municipalities. Developers in “Infrastructure Financing Districts” (IFDs) would require potential homeowners to pay up front for infrastructure (like roads and sewer). Developers argue that this tool would be cheaper and faster than public financing and allow more housing to be built to meet current demand. Concerns remain about legislation that converts a private corporation into a quasi-municipal entity with taxing and bonding authority. Learn more.

UCC Position: Question and scrutinize legislation that removes land-use and zoning authority from municipalities or creates an entity that transfers governmental authority to private developers.

Changes to the Executive Branch

The merit system (career service employment) in state agencies is under threat. In 2022, the Legislature passed a law allowing new state employees holding supervisory positions to be fired at will by their boss–with very limited protection from arbitrary action. Current supervisors were given a choice to convert to at-will status in return for a base-salary increase. Slightly more than 20 percent of them declined the raise in order to keep their career-service employment.

What’s next? Governor Cox’s budget recommendations issued December 5, 2023 include converting to at-will employment all vacant career service positions and all new positions after July 1, 2024. Current career-service employees would retain that status only if they do not move into other positions. Will Utah return to political favoritism in hiring, firing, and promotions rather than valuing professional skills and candid assessment of proposed policies? Learn more.

UCC Position: Oppose legislation changing career-service to at-will employment. 

Changes to the Judicial Branch

  1. A 2023 law undermined the judicial selection system. It eliminated the requirement that two of the seven commissioners on judicial nominating commissions be attorneys recommended by the Utah State Bar, the professional organization formerly responsible for providing the governor with qualified attorney candidates from which to choose. It also eliminated the requirement that no more than four be from the same political party. The Governor is now free to recommend for Utah Senate confirmation anyone he thinks could function in a nonpartisan manner, even though all could be from the same political party and without any input from the Utah State Bar.
  2. Another 2023 change narrowed the legal criteria for granting injunctions (which prevent a new law from taking effect while its legality is being challenged in court). A phrase stricken from the Utah law had allowed an injunction if the law raised “serious issues on the merits which should be subject to further litigation.” The change was in objection to a judicial injunction temporarily halting implementation of legislation restricting abortions after six weeks of pregnancy.

What’s next? UCC doesn’t know what is next but is watching. Learn more.

UCC Position: Support efforts to repeal or weaken these 2023 changes. Oppose reductions in the role of an independent judiciary to protect the public.

Changes to the Utah Constitution and to Citizens’ Constitutional Right to Initiate Legislation

 Amendments to Utah’s Constitution should be quite rare but have been frequent in recent years, especially after the Legislature dissolved the respected Constitutional Revision Commission that advised the Legislature and evaluated proposed revisions.

  1. A 2020 constitutional amendment was approved by voters, allowing the Legislature–without the governor’s consent–to convene a special session to deal with a “fiscal crisis, war, national disaster, or other emergency.” The governor already had (and still has) this power, and it’s difficult to imagine that a governor would not call a special session to address these situations. The Legislature has used this new power several times without a fiscal crisis, war, or national disaster–only some issue that had not been resolved during a regular session which was considered deserving of quick action. Special sessions provide little notice, usually last 1-2 days, and lack opportunity for hearings or time for public input. What should constitute an “emergency”?

What’s next?  Other ballot language may emerge to amend the Utah Constitution that may sound harmless but does not reveal the consequences of a proposed amendment.

  1. Another change to the Utah Constitution will be on the 2024 general election ballot. It would remove the income-tax earmark for public and higher education. If approved, a companion statute would take effect to stabilize income based on student enrollment for five years, even if enrollment declines. Removal of the unpopular state (but not local) sales tax on food is also contingent on 2024 passage of this amendment. Both are examples of incentives to nudge/extort/coerce approval of problematic measures. The same tactic was used in changes to the merit system for state employees and for the 2023 increase in teacher salaries, which was contingent on acceptance of an $8,000 subsidy per student for parents who educate a child in private school or at home—significantly reducing funds available to support and improve public education.

What’s at stake? Education has been underfunded for several decades. Teacher salaries are still not competitive with other professions; staffing of auxiliary personnel (counselors, psychologists, nurses, social workers) is insufficient; at-risk students are underserved; and Utah remains at or next to the bottom of the 50 states in money spent per student.  The proffered specifics of income stabilization would be only in a statute, which can be changed in any later legislative session. Learn more.

UCC Position: Oppose this proposed 2024 constitutional amendment.

  1. In 2020, voters approved Proposition 4, a ballot initiative requiring nonpartisan redistricting by an Independent Redistricting Commission, using standards established in the initiative. The Utah Legislature effectively repealed the nonpartisan requirement, used its own lesser standards, and ignored the recommendations of the Independent Redistricting Commission. Boundaries for Congressional and state legislative districts were gerrymandered to increase the number of “safe districts” for members of the dominant party, creating single-party, veto-proof majorities in the state legislature. Litigation by citizens challenging the Legislature’s actions is ongoing, as of this writing.

Repeal of the key provisions of Proposition 4 was both preceded and followed by legislative enactments that make the success of any initiative virtually impossible. For instance, signers of initiative petitions are required to certify that they have read the entire initiative (typically, multiple pages of fine print legalese) prior to signing. This is a deliberate attempt to defeat any initiative from even getting on the ballot for public vote.

What’s next? The possible re-emergence of a proposed amendment to the Utah Constitution requiring any citizen initiative to pass by a 60% majority if it includes a tax increase or tax rate increase. This would make it tremendously difficult for such an initiative to succeed and would allow a 40.1% voter minority to squelch the desires of a majority. The Legislature imposes no such requirement on itself. Learn more.

UCC Position: Oppose any legislation requiring more than a majority vote on citizen initiatives. Support removal of existing language in the law requiring signers to read the entire initiative before signing an initiative petition. An executive summary would be sufficient. Support any legal rulings that better balance legislative and citizen constitutional powers to legislate.

__________________________________

Learn More:  What is the Right Balance between State and Local Authority?

Counties, cities, and towns are creatures of the state; the state created them and gave them authority over multiple local issues. Although the state can preempt local decision making when statewide issues are at stake, land use decisions are historically local; legislative “home rule” is the general rule in Utah.[1] Nonetheless, tensions between state and local authority are not unusual; nor is asking the courts to establish which level of government has the superior authority in a given situation.

Housing is an issue in which the balance between levels of government has been changing. In the face of affordable housing shortages across both urban and rural areas of the state, some local governments like Salt Lake City have taken their own steps to increase such housing,[2] but others have not. The State has steadily exerted more pressure in recent years by upping requirements for the “moderate income housing” section of municipal and county general plans. Local governments must now include steps they plan to take from a menu of state options and report implementation timelines and progress, with penalties for non-compliance.[3] Governor Cox recently used strong language in telling municipalities to overcome their NIMBY perspectives and also encouraging developers to be willing to forego some of their profit from building luxury homes and subdivisions.[4] The threat of more state intervention was lurking.

Ironically, the state also has restricted certain local government efforts to pursue affordable housing more aggressively on their own. Municipalities are forbidden from enacting rent control or requiring developers to include affordable housing units in a land-use application—tools used in some other states.[5]

In other instances, the state also seems to go further in intervening to override local zoning and land-use regulations in what appears to be favoritism for some developer or business that wants to do what a community disapproves. The Summit County example looks like political favoritism after heavy lobbying from a specific developer.[6] The two Moab examples required much negotiation and compromise in Moab’s attempts to provide more affordable housing for workers in the tourist industry and for noise limits on ATVs.[7] In the collapse of two Draper homes, it appears that poor advice from the state’s Property Ombudsman Office may have been responsible, at least in part. Here is a situation where a different state role could have been appropriate. The head of the Utah Geological Survey suggested that if the state adopted a model geologic hazard ordinance for localities to follow, it could be helpful in preventing developers from building homes on hazardous terrain.[8]

In another example of restrictions placed on cities and towns, the mayor of Ivins, previously a developer, complained that the Legislature had a pro-developer mindset and was interfering with municipal regulations restricting the exterior look of its desert landscape town.[9] In this case, the line between appropriate local autonomy and lowering barriers to build housing may be in the eye of the beholder.

The Utah League of Cities and Towns [ULCT] is accustomed to negotiating with the Utah Legislature over many regulatory issues and seeks collaboration as a preferred method of conflict resolution. On September 8, 2023, it adopted Resolution 2023-002 to stress the importance of preserving local authority.[10] It included the following:

  1. The federal government and the State of Utah should respect and uphold the principles of local self-governance, refrain from unwarranted preemption actions, and engage in collaborative and constructive partnerships with local governments.
  2. The ULCT encourages federal and state policymakers and community and civic leaders to recognize and advocate for the preservation and enhancement of local authority, fostering an environment where local governments can thrive and effectively serve their communities.
  3. The ULCT fundamentally opposes mandates that unnecessarily create unelected boards, commissions, authorities, or any type of entity that preempts local governments by giving authority to unelected boards/commissions by removing that authority from local elected officials.
  4. The ULCT fundamentally opposes mandates that remove revenue from local governments or transfer that revenue to a board, commission, or authority that is not comprised of local officials.
  5. The ULCT fundamentally opposes mandates that eliminate land use and zoning authority from municipalities.

The upcoming 2024 legislative proposal to create “infrastructure financial districts” is seen as a way to overcome municipal reluctance to bond or tax residents for new subdivision infrastructure. The municipality would instead allow the IFD to do the bonding. What is potentially troubling about this bill to increase housing is the quasi-municipal authority given to the developers themselves to access the tax-free bond market. When all the lots are sold and the bond completely paid, then responsibility for maintenance and operation of the infrastructure would revert to the municipality.[11]

Although beyond the scope of this policy brief, UCC is aware that significant issues about unelected boards have arisen in recent years, among them legislative management of the 5-member voting board of the Utah Inland Port Authority and its satellite hubs; the now defunct Utah Lake Authority to manage Utah Lake restoration, including a real-estate scheme to dredge and then build an island for residential development; and a 2024 proposal for legislative takeover of governance of Rocky Mountain Power’s Intermountain Power Plant (IPP) in Delta. i.e., a proposed takeover of the board to continue to allow coal to be used to generate electric power.[12] Issues have also arisen over prohibition of municipal gun controls and the extent of state constraints on county public health measures.  

The right balance between state and local authority is difficult to achieve and bears constant watching by the public. The Legislature should not intervene to favor special interests.

_____________________________________

[1] According to the National Association of Counties, the Utah Supreme Court, in State v. Hutchinson, 624 P2d 1116 (Utah, 1980), concluded that Utah is essentially a legislative home rule state. “Utah counties are unique in that they are considered to be governed under Hutchinson’s Rule…. Utah’s supreme court concluded that ‘Utah municipalities [and counties] have the right to legislate on the same subject as a state statute where the general welfare power is at issue.’” Counties and municipalities may pass legislation that is not in direct conflict with state statutes.  https://www.naco.org/sites/default/files/event_attachments/DRAFT_Utah_012022.pdf  . See also the 2019 report by the Local Solutions Support Center, https://static1.squarespace.com/static/5ce4377caeb1ce00013a02fd/t/5eb344bc01b02f5fffc51dce/1588806844629/50+States+–+UT+Home+Rule+%282020+updates%29+%28final%29.pdf .

[2] T. Semarad, “SLC clears new rules for housing infill, row houses, cottages and other smaller homes,” Salt Lake Tribune, December 7, 2023. https://www.sltrib.com/news/2023/12/07/slc-embraces-monumental-new/

 B. Apgar, “There’s a new way in SLC to pay rent and save for a home at the same time, Salt Lake Tribune, February 11, 2023. https://www.sltrib.com/news/2023/02/10/theres-new-way-slc-pay-rent-save/ . Building Salt Lake, L. Garrot, “Nonprofit developers to convert HK Tower into affordable housing, August 9, 2023. https://buildingsaltlake.com/hk-tower-to-undergo-office-to-residential-conversion-by-non-profit-developers/ .

[3] Utah Code 10-9a-403 and 10-9a-408 for municipalities. https://le.utah.gov/xcode/Title10/Chapter9a/10-9a-S403.html and https://le.utah.gov/xcode/Title10/Chapter9a/10-9a-S408.html ; Utah Code 17-27a-403 and 17-27a-408 for counties. https://le.utah.gov/xcode/Title17/Chapter27a/17-27a-S403.html and https://le.utah.gov/xcode/Title17/Chapter27A/17-27a-S408.html .

[4] S. Fisher, “To Build Housing, build rapport—and focus on the region,” The [Moab] Times Independent, December 13, 2023. https://www.moabtimes.com/articles/to-build-housing-build-rapport-and-focus-on-the-region/  And as Steve Waldrip, the Governor’s new Housing Innovation Adviser, said “We’re asking [developers] not to lose money, but potentially not to make as much money and to still be profitable, but not to maximize profit to the detriment of our state.” E.M. Stern, “Inside Gov. Cox’s ‘audacious’ plan to create tens of thousands of starter homes for young Utahns,” Salt Lake Tribune, December 6, 2023, https://www.sltrib.com/news/politics/2023/12/06/inside-gov-coxs-audacious-plan/ .

[5] Utah Code 57-20-1. https://le.utah.gov/xcode/Title57/Chapter20/57-20-S1.html;  Utah Code 10-9a-535. https://le.utah.gov/xcode/Title10/Chapter9A/10-9a-S535.html. Moreover, Utah Code10-8-85.4 prohibits local governments from preventing individuals from listing short-term overnight rentals on advertising sites like Airbnb. https://le.utah.gov/xcode/Title10/Chapter8/10-8-S85.4.html. Municipalities had complained that such rentals were increasing housing shortages because homes that had been residences were being acquired for short-term rentals. For a national perspective, see Shane Phillips, The Affordable City: Strategies for Putting Housing Within Reach (and Keeping It There) (Island Press: 2020).

[6] R. Gehrke, “Legislature’s overreach in Summit County thwarted by sloppy law writing,” Salt Lake Tribune, June 17, 2023. https://www.sltrib.com/opinion/2023/06/17/legisaltures-overreach-summit/ 

[7] S. Fisher, “Legislature passes amended OHV bill,” The Times Independent, March 10, 2022. https://www.moabtimes.com/articles/legislature-passes-amended-ohv-bill/ . S. Fisher, “The Nexus of housing, local policy and state” (Part 1), The Times Independent, September 28, 2023. https://apautah.org/the-nexus-of-housing-local-policy-and-the-state/ . S. Fisher, “Being on the defensive: Cities, counties see constraints on housing efforts” (Part 2), The Times Independent, October 19, 2023. https://www.moabtimes.com/articles/being-on-the-defensive-cities-counties-see-constraints-on-housing-efforts/

[8] R. Gehrke, “Gov. Cox open to a ‘rebalance’ of city powers after Draper homes collapse.  It’s about time, Robert Gehrke says,” Salt Lake Tribune, May 19, 2023. https://www.sltrib.com/opinion/2023/05/19/gov-cox-open-rebalance-city-powers/

[9] C. Reed, “Ivins mayor, officials say local cities are getting ‘hands tied’ by Utah Legislature on home design,” St. George News, July 7, 2023. https://www.stgeorgeutah.com/news/archive/2023/07/07/cdr-lgl23-ivins-mayor-officials-say-local-cities-are-getting-hands-tied-by-utah-legislature-on-home-design/ .

[10] The full resolution can be found at https://www.ulct.org/home/showpublisheddocument/14666/638320210026670000  

[11] See November 13, 2023 draft of IFDs at Bill File 2024FL0299/004.   https://le.utah.gov/Interim/2023/pdf/00004682.pdf

[12] T. Fitzpatrick, “Power play: Legislators move to take control of Utah coal plant before it closes,” Salt Lake Tribune, November 16, 2023,  https://www.sltrib.com/news/2023/11/16/legislators-hear-plan-give-them/ . D. Irvine, “Utah lawmakers are putting Utah’s municipal power systems at risk,” Salt Lake Tribune, December 3, 2023. https://www.sltrib.com/opinion/commentary/2023/11/30/opinion-utah-lawmakers-are-putting/ .

_____________________________________________________________

Learn More: Should All Utah’s State Employees Be Dismissible at the Will of Their Bosses Rather Than for Cause?

            Public employees at all levels of government affect our lives in many ways. They work to ensure that the food in supermarkets is healthy, that our roads are safe, that we have effective employment services when we need a job, or that someone will handle the problem if we find a moose in our backyard. To meet these and many other daily needs, we need people who know what they are doing, who are skilled and have experience doing their jobs.

To ensure a high level of skill and efficiency, civil service laws were passed for the federal government in the late nineteenth century (federal Civil Service Act of 1883). They provided that most government employees were chosen through competitive processes that had nothing to do with their party affiliation. Firing could be only “for cause,” which was guaranteed through an independent grievance process. This was a huge improvement on the “spoils system,” in which the winning party in elections fired the employees of the previous administration and rewarded their supporters with government jobs. This greater job security created continuity and expertise in the administration of laws and insulation from pressure for political favors and retaliation for politically disfavored recommendations. The workforce hired with these protections are referred to as “merit-system” employees or, in Utah, “career-service” employees. Those not in the career service may be removed “at the pleasure of the appointing officers without regard to tenure”[1]–commonly known as “at-will” employment.

Creating a career service system was a hard-won accomplishment in Utah. According to longtime political reporter Rod Decker’s political history, until the late 1930s, many state workers were hired or fired, depending on which party won the election, and workers were expected to make financial contributions and provide other support for the party in power.[2] The federal government’s threat to withhold grant money led to the creation of the first career-service jobs in Utah state government, but only in the three departments administering federal funds for health, unemployment, and welfare. Not until the mid-1960s under Republican Governor Clyde and Democratic Governor Rampton were merit principles extended by executive order. Only in 1979 did protective career-service procedures for most state workers get written into law.[3]

Not every government employee has such protection, nor arguably should. If elections are to have meaning, then winners of elections should be able to direct public policy toward goals on which they campaigned. Consistent with this assumption, high-level executive branch employees are typically appointed by each new administration. “Agency heads,” “employees who make statewide policy,” temporary and “unskilled” employees, and a few other categories were exempt from the career service in Utah by 1997.[4] In the current Utah Code the policy-related exemption has broadened to include all those who determine policy or the way in which it is carried out.[5]

Besides reflecting the results of the last election, other reasons to limit career service positions are beliefs that government should “run like a business,” employees are best motivated by fear of losing their jobs, and poorly performing employees should be easy to terminate.[6] Making public employment at-will is a popular idea nationally on the American right.[7]

On the other hand, advocates of career-service employment posit that such employees coordinate decisions coming from the three branches of government and thus help preserve the balance of power among them.[8] Long-serving employees also bring technical expertise, provide institutional memory, and sustain internal and external relationships that facilitate getting the public’s business done. Considerable research also finds that greater job security is associated with high employee satisfaction and performance.[9]

            Nevertheless, since the 1990s interest in cutting back merit protections has grown in Utah. In 2010 the Utah Legislature requested an audit of the career-service system because of “concerns regarding the difficulty in dismissing poor-performing employees.”[10] The Legislature also asked the Legislative Auditor’s Office to compare Utah’s personnel system to those of other states and to potential systems. The audit noted that HB 140, passed just that year to streamline the grievance process, was too new to be evaluated. The report concluded that many difficulties in terminating career-service employees were due to the lack of training most state managers received. The recommendations were much more explicit about improving training in performance management than about changing the career-service system.

            In 2021, the Legislature requested a new audit to report on the impact of HB140, update the comparison to other states’ systems, and review the status of its 2010 recommendations.[11]  The resulting audit reported that HB 140 significantly reduced the time needed for grievances with hearings, doubled the percentage resolved at the department level without hearings, and raised the percent of career service employees dismissed for cause to almost the same percentage as at-will employees. The report found that still “only 30 percent of state managers have had any type of management training from DHRM”[12] and repeated its 2010 recommendation that management training be required of all managers.[13] In neither report did the auditors recommend moving to at-will employment.

            In 2022, HB 104 finally mandated training for state managers but also moved to at-will employment all new supervisors, current ones who had not completed their probationary periods, and all current supervisors who would give up their career-service status in exchange for a five percent raise. As amended to add a weak provision that allows an agency to provide for review within the agency of a recommendation for suspension, promotion, or dismissal,[14] HB 104 became law. Current career-service supervisors had until June 30, 2023, to opt for the raise and give up their career-service status. 79.4 percent of 2,960 affected employees converted, and 20.7 percent did not.[15]  

            In 2023, HB 412, which ultimately failed, would have extended at-will employment to all new non-supervisory employees in the executive branch and given existing career-service employees until March 30, 2024, to choose to convert in exchange for a financial incentive determined by the Division of Human Resources. Some Republicans as well as Democrats expressed concern about recruiting employees if low salaries were not offset by greater job security, not having time to evaluate the impact of the prior year’s change, creating conflicts among employees, and subjecting employees to political influence.[16]

            Despite these concerns, Governor Cox’s FY 2025 budget recommendations include a similar change. They drop the idea of financial inducements and take a more gradual approach of converting all vacant positions and all new positions to at-will, but leaving current career-service employees in that status unless they move to another position.[17] Presumably, a bill will appear during the 2024 legislative session that pursues the Governor’s recommendation.      

The Utah Citizens’ Counsel consensus is that the values of expertise, continuity, and employee motivation support limits on the value of political responsiveness. The process to fire poorly performing employees has been streamlined. Moreover, at-will employment makes government employees less able to give bad news or controversial recommendations to their administrative superiors. Evidence suggests that a state employee, the one who discovered that the company seeking to dredge Utah Lake and build housing on artificial islands did not have the EPA loan it had claimed, departed the state agency under pressure a few months later.[18]  Even if retaliatory action happens rarely, at-will employment provides no protection against it in the cases where it may be most important.

Utahns should oppose any further expansion of the “at will” state government workforce. It is ill-advised and counterproductive policy.

_________________________________________________

[1] Utah Code 63A-17-301(2)(a)(ii). https://le.utah.gov/xcode/Title63A/Chapter17/63A-17-S301.html

[2] Rod Decker, Utah Politics: The Elephant in the Room (Signature Books: 2019), pp. 270-75.

[3] Ibid.

[4] Utah Code 67-19-15 (1997). Atypically, professionals in the Department of Community and Economic Development were also singled out as exempt from the career service. This allowed newly elected Governor Jon Huntsman in 2005 to “abruptly fire[d] forty top employees in the Divisions of Minority Affairs and Business and Economic Development.” R. Green, et al., “The Attraction to At-Will Employment in Utah Governments,” International Journal of Public Administration, 2008, vol. 31, p. 536. https://www.tandfonline.com/doi/abs/10.1080/01900690701624162 .

[5] Utah Code 63A-17-301(1)(l). (url is at endnote 1)

[6] The anti-merit system rhetoric of a “deep state,” prevalent at the national level, has not been used publicly by Utah officials promoting greater at-will employment in Utah.

[7] America First Policy Institute, Civil Service Reform. Center for American Freedom, Research Report, J. Sherk and J. Sagert, “Making the Utah Career Service At-Will Would Improve Utah State Government,” Sept. 13, 2022, https://americafirstpolicy.com/issues/20220913-making-the-utah-career-service-at-will-would-improve-state-government. Supporters of a second term for President Trump are preparing to revive an executive order cutting the federal merit system that he signed late in his administration and which was then revoked by President Biden. Axios, “How Trump could reimpose “Schedule F” in 2025,” July 23, 2022, https://www.axios.com/2022/07/22/trump-presidency-schedule-f-federal-employees .

[8] R. Green, et al., “On the Ethics of At-Will Employment in the Public Sector,” Public Integrity, Fall 2006, vol. 8, no. 4, pp. 314-15. https://www.tandfonline.com/doi/abs/10.2753/PIN1099-9922080401 .     

[9] Ibid., p. 322, n.7. A recent systematic review of 96 data-based and peer-reviewed articles related to merit systems and government performance in state and national governments concluded that “impartiality and professionalism [of meritocratic systems] are consistently related to positive performance outcomes, higher public trust and confidence, and lower levels of corruption.” Eloy Oliveira, et al., “What does the evidence tell us about merit principles and government performance?” Public Administration, May 2023, p. 14:  https://onlinelibrary.wiley.com/doi/full/10.1111/padm.12945.

[10] Office of the Legislative Auditor General (OLAG), “A Limited Review of the State’s Career Service System,” July 2010, No. 2010-08, p. 1. https://le.utah.gov/audit/10_08rpt.pdf 

[11] OLAG, “An In-Depth Follow-Up of the State’s Career Service System,” November 2021, No. 2021-15. https://le.utah.gov/interim/2021/pdf/00004067.pdf

[12] Ibid., p. 28.

[13] Ibid., p. 35.

[14] Utah Code 63A-17-301(6)(e). (url is at endnote 1) It is unclear how many agencies have done so by January 2024.

[15] Data presented in the slides of John Barrand, Director, Division of Human Resource Management at the September 18, 2023 meeting of the Government Operations Interim Committee: https://le.utah.gov/interim/2023/pdf/00003918.pdf .

[16] House Floor Debate, February 24 and February 27, 2023: https://le.utah.gov/~2023/bills/static/HB0412.html.

[17] Gov. Spencer J. Cox, Fiscal Year 2025 Budget Recommendations, p. 43.  https://gopb.utah.gov/wp-content/uploads/2023/12/Gov.-Cox-FY25-Budget-Recommendations.pdf.

[18] Leia Larsen, “State nearly announced Utah Lake island plan had won an EPA loan. Trouble is, it wasn’t true.” Salt Lake Tribune, October 31, 2023, https://www.sltrib.com/news/environment/2023/10/31/state-nearly-announced-utah-lake/ ; Brian Moench, Opinion: “Utah is sabotaging efforts to save Great Salt Lake,” Salt Lake Tribune,  December 1, 2023, https://www.sltrib.com/opinion/commentary/2023/12/01/opinion-utah-is-sabotaging-efforts/.

_____________________________________________________________

Learn More: How has the Legislature Undermined the Judiciary?

In its November 2002 briefing paper on “Senate Confirmation of Judicial Appointments,” the Utah Office of Legislative Research and General Counsel stated, “The primary purpose of Utah’s judicial selection system is to select highly qualified and skilled judges without regard to any partisan political consideration.”[1] The statement, mirrored in the Utah State Code, is based on Article VIII, Section 8 of Utah’s Constitution: “Selection of judges shall be based solely upon consideration of fitness for office without regard to any partisan political consideration.”[2]

Utah’s judicial selection process has long been highly regarded throughout the nation, both because of the absence of political consideration for judicial candidates and the fact that members of the judicial nominating commissions (appellate, district and juvenile) were selected from both major parties; no more than four of the seven members of each commission could come from the same political party. In his 2013 State of the Judiciary, Chief Justice Matthew B. Durrant stated, “In Utah we are fortunate to have judges of an extraordinarily high quality. Utah’s judges are selected by a nonpartisan vetting process that may well be more thorough and rigorous than any state in the nation…”[3]

“Our judicial selection process in Utah is known as the gold standard across the country in terms of ensuring a nonpartisan judiciary,” testified Elizabeth Wright, executive director for the Utah State Bar, before the House Judiciary Standing Committee on February 27, 2023.[4]

Legislators, however, voted to change the judicial selection system with the passage of Senate Bill (SB)129, Judiciary Amendments (2023).[5] The action repealed Title 78A, Chapter 10, Judicial Selection Act, most notably removing the requirement to limit the number of commission members from one political party. In the appointment of judicial nominating commission members, the governor no longer must consider party affiliation (thus, the governor could potentially appoint all members who represent only one party).

SB129 also eliminated the requirement for the governor to appoint two attorneys recommended by the Utah State Bar. The governor can now appoint any two practicing or retired attorneys to the nominating commission. Prior to the passage of SB129, the statute also required an eighth position to the commission – a non-voting member appointed by the Judicial Council (the policy-making body for the judiciary).

Officials from the Bar strongly opposed the changes to the commission selection process, warning the move would greatly affect neutrality; Utah’s selection of the judiciary could now become partisan, reflecting only the positions of the party in power.[6] Others expressing concern at legislative hearings included the State Court Administrator’s office, the Salt Lake County District Attorney’s office, and the Utah Commission on Criminal and Juvenile Justice.

While bill sponsor Senator Kirk Cullimore said changes to the commission member selection process “would provide more discretion for the governor to pick the most qualified people” and that “there are attorneys who feel like the [Utah State Bar] doesn’t necessarily represent all attorneys,”[7] Salt Lake County District Attorney Sim Gill called Cullimore’s bill “political gerrymandering,” noting the changes will “erode the state judicial system’s integrity.” The bill “will remove the guardrails that make the Utah nominating commission nonpartisan,” he said.[8]

Then-President of the Utah State Bar Kristen Woods said “Picking judges is such a crucial part of having a good democracy that runs in a very fair, nonpartisan way. We think the current system does that, and there’s [no reason] to mess with it.”[9]

Legislative overreach into the judicial branch was also evident with the 2023 passage of House Joint Resolution (HJR) 2, Joint Resolution Amending Rules of Civil Procedure on Injunctions.[10] The joint resolution restricts the criteria used by state courts to grant preliminary injunctions and temporary restraining orders when laws are challenged by those affected by them.

The timing and impact of HJR2 has been seen as an effort by the 2023 Legislature to impede a Third District Court injunction on Utah’s abortion trigger law. The trigger law went into effect when the U.S. Supreme Court overturned Roe v. Wade in June 2022. A challenge to the Utah law was filed by the Planned Parenthood Association of Utah.[11] A request for a preliminary injunction was granted by Judge Andrew Stone in July 2022 and again in May 2023, based on the new standard in the resolution.[12] (The Utah Supreme Court heard oral arguments on August 8, 2023, to determine the constitutionality of the abortion restrictions. A decision is pending.)

HJR 2 retroactively eliminates a court’s ability to grant a preliminary injunction unless there is “a showing by the applicant that there is a substantial likelihood that the applicant will prevail on the merits of the underlying claim.”[13]  The prior language also had allowed an injunction if “serious issues on the merits” were raised.

The retroactivity (“reconsideration”) clause presents implications beyond the abortion issue. It allows an enjoined party to petition the court “to reconsider whether a restraining order or injunction should remain in effect” if based on the old standard and terminate the order or injunction if it is. Many groups are concerned that having to review the standard used in other open cases (i.e., those without a final determination) creates threats to various rights and creates unexpected financial costs.

The changes to the role of the judiciary were ill advised and adverse to the public interest. Therefore, both the statute changing the requirements for the judicial nominating commissions and the statute narrowing the injunction criteria should be repealed and the former laws reinstated. Furthermore, the legislature should do nothing that would further erode the excellent reputation that Utah’s judges and judicial procedures have earned over the years.

________________________________________

[1] https://le.utah.gov/lrgc/briefings/senconf.pdf . In its conclusion, the OLRGC also described Utah’s judicial selection process as “unique.”

[2] https://le.utah.gov/xcode/Articleviii/Article_VIII,_Section_8.html

[3] Utah Chief Justice Matthew B. Durrant, “2013 State of the Judiciary” (available on YouTube)

[4] https://le.utah.gov/av/committeeArchive.jsp?timelineID=229487

[5] https://le.utah.gov/~2023/bills/static/SB0129.html

[6] https://le.utah.gov/av/committeeArchive.jsp?timelineID=229487 .

For instance, Utah State Bar Commissioner Traci Gunderson stated, among other things: “This bill was proposed without any input from the lawyers or the courts, despite making sweeping changes to the judicial selection process.”

[7] K. Bojóquez, “Republican-led measure would upend Utah’s judicial nominating process,” Axios Salt Lake City Newsletter, February 24, 2023. https://www.axios.com/local/salt-lake-city/2023/02/24/utah-judicial-nominating-commission-legislature-republican

[8] Ibid.

[9] Ibid.

[10] HJR2 (2023),  https://le.utah.gov/~2023/bills/static/HJR002.html

[11] https://www.plannedparenthoodaction.org/planned-parenthood-action-council-utah-inc/policy/lawsuits

[12] https://www.axios.com/2023/05/02/utah-abortion-clinic-ban-injunction-judge

[13] https://le.utah.gov/~2023/bills/static/HJR002.html

______________________________________________________________

Learn More: Would Removal of the Income-Tax Earmark in the Utah Constitution Help or Hurt Public Education?

Tax policy is a key driver of public education quality in Utah. Education funding relies heavily on state income tax and local property tax revenues, with a small share coming from the federal government. Utah’s income tax has been earmarked (i.e., reserved) for public education for 75 years.[1] Even so, education spending has lagged for decades, and has been inadequate to meet varied student needs, teacher recruitment and retention, auxiliary personnel like counselors, social workers, and nurses. Utah’s per pupil spending has remained at or near the bottom of the 50 states.[2]

Despite underfunding public education, the Utah Legislature has been cutting income tax rates and reducing the earmark for the past 25 years. Twice, voters approved constitutional amendments to shift some income tax revenues (1) to higher education (1996, freeing up sales tax revenue later used for transportation) and (2) to “children” and to “individuals with a disability” (2020). The 2020 ballot language did not explain that this would reduce the earmark for public and higher education and allow social services for children and for disabilities to shift from sales tax to income tax sources.

Now, the Legislature seeks voter approval to amend Utah’s Constitution a third time to allow income tax revenue to pay for state budget needs well beyond those stated above. To appeal to educators, a companion statute would keep enrollment funding steady for five years, even if enrollment declines.[3] Another statute, meant to entice voters, would remove the state sales tax on food.[4] Both are contingent on the amendment’s approval.

Although earmarks interfere with flexibility to spend money where the Legislature thinks it is most needed, many important educational programming priorities will now be competing with other state funding needs for a share of the same income-tax pool. One cannot rely on legislative promises in statutes that can be changed at any time by a subsequent legislature–without majority approval by voters. Also, although the legislature says earmarks deny flexibility, it has not chosen to remove a sizable number of other earmarks of its own making.[5]

Underlined wording below is what voters will be asked to approve on the 2024 ballot:      Art.XIII, Section 5, subsection (5): “All revenue from taxes on intangible property or from a tax on income shall be used:

  1. to support the systems of public education and higher education as          defined. . .;
  2. to maintain a statutory public education funding framework that:
    1. uses a portion of revenue growth for expenditures from the Uniform School Fund for changes in student enrollment and long-term inflation; and
    2. provides a budgetary stabilization account;
  3. to support children and to support individuals with a disability; and
  4. to support other state needs after the fulfillment of the requirements in Subsection (5)(b).

This ballot language is ambiguous. What is a “a portion” of revenue “growth” for enrollment “changes” and “long-term inflation”? For instance, does long-term inflation allow inflationary increases to be averaged over, say, a 5- or even a 10-year period, rather than being allocated annually? What is a “budgetary stabilization account,” and what size must it be to have enough for a “rainy day” of revenue declines?

We remind voters that consistent polling, including a recent one by the Deseret News/ Hinckley Institute of Politics, reveals strong support for increased spending on public education.[6] In recent years, civic groups have even called for an income tax increase.[7] Instead, the Legislature has cut income taxes steadily, contributing to a loss of more than a billion dollars annually for public education from the mid-1990s until the past few years,[8] when higher tax revenues did result in increased funding for public education.

Legislative leaders have expressed their desire to cut the income tax rate again, down to 4.55% (about $160 million in tax reductions) in 2024.[9] When the legislature reduces the income tax rate, it tends to benefit higher earners more than lower income earners.[10] True, income tax revenue has increased faster than sales tax revenue, but the Legislature has not successfully dealt with larger-scale property tax and sales tax reforms. Utah now is a service economy, in which purchase of services has surpassed purchase of material goods.[11] Taxing more services would be a significant source of sales tax revenue to support social services and other state needs.

We doubt that providing more legislative discretion to free up income tax revenues would deliver a growing long-term investment in public education. Many educators already worry that the 2023 law providing K-12 private-school tuition stipends of $8,000 per student[12] will continue to take money away from public education. That $8,000 is getting close to Utah’s average per pupil expenditure and notably more than the $6000 salary & benefits increase given to teachers to extract support for the voucher program.

The income-tax earmark is a long-standing commitment to public education. The Utah Education Association (UEA), caught between a rock and a hard place, has taken no position on the proposed amendment. Nonetheless, it has asserted that “Changing the constitution would require ‘trusting the legislature.’” How true! The proposed maintenance of a statutory “framework” for enrollment, long-term inflation, and budget stabilization is unclear and will not capture funding designed to increase student proficiency in basic subjects, upgrade preschool programs, improve services for at-risk students, reduce class sizes, increase auxiliary personnel, elevate the teaching profession, keep up with technology, and meet unanticipated future needs.

If the Utah Legislature has not invested in educational excellence for decades and did not spend as much in normal times as Utah could have afforded, why should voters trust future legislatures to fund education quality based on limited, ambiguous wording in the proposed amendment?

Future legislatures can more easily undo their statutory promises than can a constitutional amendment be undone, once approved. In sum, voter approval of the ballot amendment is likely to harm public education in the long run.

_______________________________________________

[1] The earmark in the Utah Constitution was approved by voters in 1948. For an interesting history of Utah’s public school financing, see National Center for Education Statistics, “Public School Finance Programs of the United States and Canada, 1998-1999”: Utah chapter by P.F. Galvin and H.B. Robins. https://nces.ed.gov>pdf>stfinance.utah

[2] National Center for Education Statistics data for 2019-2020, https://nces.ed.gov/programs/digest/d22/tables/dt22_236.70.asp , and U.S. Census data for 2021  https://www.census.gov/newsroom/press-releases/2023/public-school-spending.html , both show Idaho had replaced Utah in last place for per pupil expenditures in elementary and secondary schools in the United States. National Education Statistics for 2021-2022 show Utah at $9618 and Idaho at $9046 and the U.S. average at $15,0368, nea.org/resource-library/educator-pay-and-student-spending-how-does-your-state-rank/teacher. Average per pupil expenditures have been going up all across the country during the past three fiscal years.

[3]  House Bill 394 (2023) stipulates that public education funding would not decrease in the event of public education enrollment declines from 2025-2029. If SJR 10 (the proposed constitution amendment) passes, HB394 would take effect on January 1, 2025. https://le.utah.gov/~2023/bills/static/HB0394.html

[4] House Bill 54 (2023), https://le.utah.gov/~2023/bills/static/HB0054.html . The state tax rate is currently 1.75% on food and food ingredients. Local tax rates on food and food ingredients (1.25%) would remain unaffected.

[5] Utah State Tax Commission Economic and Statistics Unit, “History of Utah Tax Structure,” (2023 report) states that “Significant amounts of revenue from this tax [sales and use tax] are earmarked for purposes including water, transportation, natural resources, Medicaid expansion, infrastructure and other uses. The majority of earmarked sales and use taxes are disbursed to the Transportation Investment Fund. The remaining non-earmarked sales tax revenue is deposited in the state’s General Fund.” tax.utah.gov/esu/history/history.pdf [p.7].

[6] Envision Utah poll rated public education as the most important issue to respondents. See M. Harris, “Education: Still a priority in Utah?”, Salt Lake Tribune, March 22, 2023, A2.  See also https://www.deseret.com/utah/2021/10/31/22749028/utah-budget-surplus-should-be-spent-on-education-poll-says-tax-cuts-party-lines. A summary of 2023 public education increases is also found in Deseret News editorial, “What Utah lawmakers did—and didn’t do—for the Great Salt Lake and controversial issues,” March 8, 2023. https://www.deseret.com/opinion/2023/3/8/23627840/utah-legislature-bills-great-salt-lake

[7]  Among groups supportive of an income tax increase in recent years have been Civic Utah, SL Chamber of Commerce, Our Schools Now, and Voices for Utah Children.

[8] See Benjamin Wood, “Tax Policies Shortchange Utah Schools $1.2B a year”, Salt Lake Tribune, November 2, 2016, A1. As the Utah Foundation reported, Utah’s funding effort “was ranked seventh in the nation in the mid-1990s” but had dropped to 37th by 2016. Ibid. A4.

[9] B. Schott, “Utah could cut taxes for the fourth straight year”, Salt Lake Tribune, December 5, 2023. https://www.sltrib.com/news/politics/2023/12/05/utah-could-cut-taxes-fourth/

[10] B. Schott, “Higher-income earners will mostly benefit from Republican leaders’ proposed tax cut,” Salt Lake Tribune, February 16, 2023, updated February 18. 2023, https://www.sltrib.com/news/politics/2023/02/16/lawmakers-announce-400-million-tax/

[11] Gardner Policy Institute, “Guide to Tax Modernization in Utah, Part One: Sales and Use Taxes, November 14, 2018, https://gardner.utah.edu/wp-content/uploads/Nov2018-TaxBooklet-Final.pdf?x71849

[12] House Bill 215(2023), https://le.utah.gov/~2023/bills/static/HB0215.html .

_______________________________________________________________

Learn More: Should Utah Voters Support Efforts to Strengthen their Ability to Share Power with the Legislature?

The Utah Constitution vests power to legislate in the Utah legislature and the people of the state.[1] One way the co-equal power is demonstrated is the citizens’ right to pass a new law if a majority of registered voters approves it in a ballot initiative. The Utah Constitution states that an initiative is adopted when a majority of voters pass the initiative at a designated general election.[2]

Procedures for gathering sufficient signatures to place an initiative on the ballot are established by the Utah Legislature.  Arguably, the process should be quite difficult because no one wants any group of disgruntled citizens to easily get an initiative on the ballot. The Utah Legislature, however, has made it increasingly difficult in recent years, even more so after three initiatives succeeded in being passed in 2018. Utah requires that signatures on an initiative petition total 8% of voters who were registered to vote on January 1st of the year preceding the initiative. The total must be reached statewide and also in each of at least 26 of the 29 state Senate Districts.

The number of signatures needed, their required distribution across a super-majority of 26 of 29 state Senate districts, and the timelines for collecting and submitting signatures have made Utah’s requirements among the toughest in the nation.[3] Utah legislators frequently complain about California’s initiative requirements and have used them as a fear tactic to continually justify Utah’s requirements. This is a ruse: Utah is not like California, which has among the easiest requirements in the country. No one is suggesting that Utah’s requirements should be that easy—e.g., requiring signatures equal to only 5% of the votes cast for Governor in the last election without any distribution by geographic region.[4]

A few of Utah’s more recent statutory requirements that intimidate and harass initiative sponsors are the following:

  • Each signer must attest in writing to having read and understood the proposed law. Additionally, each signature gatherer must wait for the individual to read the entire initiative before signing it and attest in writing to having done so.[5] With UCC’s help, a 2024 bill is expected to be introduced to delete the requirement that each signer “understand” what they read. A separate bill is expected to be introduced to delete the requirement that a signer must read the entire initiative before signing a petition. Reading an executive summary would be substituted. Both should be passed.
  • Sponsors now must pay for uniformly formatted identification badges for all paid signature gatherers and pay them by the hour, obviously onerous if gatherers must wait for signers to read the entire initiative.[6]
  • All signatures must be turned in no later than February 15th of the general election year ballot, rather than the prior deadline of April 15th.[7]

In 2023, a proposed amendment to the Utah Constitution that failed to pass would have required that any initiative with a tax increase or tax rate increase must pass by 60% of the voters, i.e., a super-majority.[8] The Legislature does not ask this of itself when it passes tax rate increases. Such a super-majority gives 40.1% of the voters the ability to stop any initiative supported by 59.9% of the voters. It violates the current Utah Constitution that honors majority rule for initiative passage.

Achieving super-majorities on policy issues of high significance is virtually impossible these days. For instance, the slight increase in the tax rate that paid for Medicaid Expansion was passed by 53% of the voters in 2018 [9] and is considered a significant win for thousands of low-income families in Utah lacking health care access. Similar Medicaid expansions under the Affordable Care Act have now been enacted in 40 of the states, plus the District of Columbia.[10] A 60% requirement would have led to defeat of this important initiative in Utah.

An overriding concern regarding Utah’s initiative process, of course, is the existing ability of the legislature to directly “repeal and replace” a citizen initiative once it has passed – effectively disregarding the people’s power to enact law. The 2019 Legislature did just that after 2018 passage of the initiative to create an Independent Redistricting Commission to draw nonpartisan maps for legislative districts. The Legislature stripped language establishing essential redistricting standards and severely limited the Commission’s role. This action sanctioning continued partisan gerrymandering was a direct challenge to the people’s initiative power. A Utah Supreme Court ruling on the constitutionality of the Legislature’s actions is pending, with implications for how power should be shared between the people and the Legislature.

Should Utah Voters Support Efforts to Strengthen the Ability of the People to Share Power with the Legislature? The answer is a resounding YES.

_______________________________________________________

[1] Utah Constitution, Article VI, Section 1(b). https://le.utah.gov/xcode/Articlevi/Article_VI,_Section_1.html?v=UC_AVI_S1_1800010118000101

[2] Utah Constitution, Article VI, Section 1(2((a). Ibid.

[3] https://ballotpedia.org/Laws_governing_the_initiative_process_in_Utah .  These days, to even have a possibility of success requires other considerations beyond legal requirements, i.e., strong organizational capacity, many volunteers, and large amounts of money.

[4] https://ballotpedia.org/Laws_governing_the_initiative_process_in_California

[5] Utah Code 20A-7-104(6)(a); 20A-7-203(4). https://le.utah.gov/xcode/Title20A/Chapter7/20A-7-S104.html

[6] Utah Code 20A-7-104(4). Ibid.  

[7] Utah Code 20A-105(5)(a)(i)(C). https://le.utah.gov/xcode/Title20A/Chapter7/20A-7-S105.html

[8] House Jt. Resolution 17 (2023) (not passed). https://le.utah.gov/~2023/bills/static/HJR017.html

[9] https://ballotpedia.org/Utah_Proposition_3,_Medicaid_Expansion_Initiative_(2018) 

[10] https://www.kff.org/medicaid/issue-brief/status-of-state-medicaid-expansion-decisions-interactive-map/

_______________________________________________________________

 

Policy Brief, Volume 2, Issue 1, April 13, 2023

What Can We Learn From the COVID-19 Pandemic? The Importance of Improving Vaccination Acceptance in Utah

The Utah Citizens Counsel (UCC) recently completed a comparative analysis of three studies that measured the relative performance of the 50 states and their healthcare systems in the management of the COVID-19 pandemic. Utah performed well compared to other states but struggled to achieve optimum vaccination levels that would have reduced hospitalizations and saved lives. (The full UCC analysis can be found here.) Our review of the studies also raises the question of the relationship between Utah’s lower than average COVID-19 vaccinations and its declining immunization levels for childhood infectious diseases. 

Background

After the first several months of the pandemic, decisions about the most effective policies to balance health risks, and whether to allow businesses, schools and churches to stay open were left to the states.  It was a learning experience, with different states and their governors and legislators making their own policy choices and employing different strategies with varying degrees of success.  And they are still learning. The purpose of the UCC analysis was to learn from these studies and identify opportunities to improve the management of future pandemics to better protect the health of Utahns.  The following studies were considered in the UCC analysis:

  • Covid’s deadly trade-offs, by the numbers: How each state has fared in the pandemic, published by Politico in December of 2021.
  • Final Report Card on the State Response to COVID-19, a working paper published for review by the National Bureau of Economic Research (NBER) in April of 2022.   
  • 2022 Scorecard on Health System Performance—How did states do during the COVID-19 pandemic, published by the Commonwealth Fund in June of 2022.

Overall, Utah ranked high in all three studies (1st in NBER, 2nd in Politico, 7th in Commonwealth). Utah ranked well for economic and educational performance in both NBER and Politico (the latter used in-person school days as the education measure) and well for both mortality and excess mortality indicators in both the NBER and Commonwealth analysis.   State and local decision making can be credited for Utah’s high performance on both economic and educational measures but was likely not a factor for low mortality and for health system performance. Utah’s youngest median age in the country (31.4) and healthy population, combined with the quality of health care in Utah, were most likely the most important contributing factors to Utah’s low mortality rate and overall health performance. 

Potential for Improvement

The most notable weakness in Utah’s performance was related to measures of COVID-19 vaccinations, ranking 33rd in Politico and 22nd and 24th on two different measures in the Commonwealth study. The uptake of vaccinations in Utah was well below top performing states. Utah required 360 days to get to 70% of the population over age 12 vaccinated, 178 more days than the top performing state, Vermont, and 102 days more than New York, which ranked tenth. In a separate study the UCC noted that Utah’s vaccination rates for childhood infectious diseases are declining and for school year 2021-2022 were below both the national average and the median for other states.[  This raises an important question:  Is there a causal relationship between low COVID-19 vaccination rates in Utah and the declining rate of vaccinations for childhood infectious diseases?

Why Do  Vaccinations Matter?  Historically the development of safe and effective vaccines against serious and deadly diseases has been “one of the foremost scientific advances of the 21st century.”[ Importantly, vaccinations have also proven to be the most significant intervention in getting the pandemic under control. 

            Vaccinations and COVID-19 hospitalizations and deaths

The Commonwealth Fund estimated that, from December 2020 through November 2022, the COVID-19 vaccination program prevented more than 18.5 million additional hospitalizations and 3.2 million additional deaths.  Without vaccinations, there would have been nearly 120 million more COVID-19 infections.  For October to November 2021 the Centers for Disease Control (CDC) reported that weekly average deaths per 100,000 population were significantly higher for unvaccinated than for those who were vaccinated.

The Utah Department of Health produced a useful table that illustrates the power of the COVID-19 vaccines in preventing hospitalizations and death in Utah during the Omicron period of COVID-19.

Given the significant advantage the COVID-19 vaccines offered in preventing hospitalizations and deaths, it is important to understand why it was so difficult to get Utahns to get shots in the arm and to articulate a plan to improve performance in the future.    

Childhood infectious diseases are serious

The development of safe and effective vaccinations against serious and deadly diseases has been “one of the foremost scientific advances of the 21st century.” In the 19th century, viruses were ever-present but poorly understood and exacted an enormous toll on the population as hundreds of thousands were infected and tens of thousands died.  About one-fifth of children died before reaching age 5, many from infectious diseases such as smallpox, diphtheria, polio, mumps and rubella that are now preventable with vaccines.   However, of these, only smallpox has been officially eradicated.  The others are still with us.   A  measles outbreak in Ohio in November of 2022 infected more than 80 children, 32 of whom were hospitalized.  All the infections were among unvaccinated or partially vaccinated children.  Measles is a good example and important reminder of the importance of vaccines.  It is highly contagious and the virus can linger for up to two hours in the air after an infected person has coughed or sneezed. Up to 90% of people who come in contact with an infected person will also develop the measles if unprotected, according to the CDC.  Research shows there can be clusters of people who delay or refuse vaccines in certain communities. When measles gets into communities with pockets of unvaccinated people, outbreaks are more likely to occur. These communities make it difficult to control disease spread and make us vulnerable to having the virus re-establish itself in our country. The same is true of other infectious diseases such as polio, diphtheria, tetanus, and pertussis.

Measles is also a good example of why we should be concerned about even cluster outbreaks of the diseases. According to the CDC, “As many as one in 20 children with measles develops pneumonia, . . . which is the leading cause of death among young children. About one in 1,000 children will also develop encephalitis, or swelling of the brain, which can lead to serious complications, including death. ‘Make no mistake, measles is not a benign illness,’ says Sean O’Leary, a member of the American Academy of Pediatrics’ Committee on Infectious Diseases.”[

Declining Childhood Immunizations and the Importance of School Vaccination Programs

Utah, like other states has published a schedule of required immunizations to prevent childhood infectious diseases for entry into kindergarten and seventh grade including provisions for exemptions.  In the past, school vaccinations have been an extremely important intervention for achieving a highly vaccinated population.  Unfortunately, vaccine levels for Utah’s children have declined to levels that are of concern.  CDC recommends high vaccination levels to prevent the potential for cluster outbreaks.  Utah’s level declined to around 90% for the 2021-22 school year.  This is a significant decline from 2005 to 2010 when Utah had vaccination levels consistently ranked with the top states for vaccine performance, as illustrated in the following table.

The CDC recently completed a study of kindergartners, ranking the 50 states by potentially achievable vaccination levels for measles, mumps, and rubella.[  The estimates were based on up-to-date vaccinations for the 2021-22 school year and the percentage of unvaccinated students without a documented vaccine exemption.  Utah ranked 49th with a projected potential vaccination level below the Healthy People 2030 target of 95%.         

Conclusions and Recommendations

The overall relative performance of Utah in managing the COVID-19 pandemic was positive in comparison to other states. We can take pride in this. Higher vaccination rates, however, would have most likely resulted in lower hospitalization rates and fewer deaths.  The broader problem of declining vaccination rates for childhood infectious diseases and the specific challenge of getting the population vaccinated for COVID-19 may be related and should be a significant public policy concern.  In spite of the remarkable historical public health achievements, the pandemic has had the unanticipated effect of discrediting public health in the U.S. In many states, including Utah, the traditional role of public health has been challenged. This may have impacted vaccine hesitancy in Utah.

It is recommended that a study forum be created consisting of professionals with credible experience and expertise in preventive health, COVID-19 management, and the use of vaccines to improve population health.  The study should focus on declining immunization levels in Utah, why vaccinations for COVID-19 were lower than hoped for, and how to better define the role of public health in the future.

 

UCC Special Report, April 12, 2023

The Management of the COVID Pandemic: How Does the State of Utah Measure Up?

Link to full report.

 

Previous Policy Briefs

Policy Brief, Volume 1, Issue 5, June 28, 2022

Policy Brief, Volume 1, Issue 4, February 25, 2022

Policy Brief, Volume 1, Issue 3, February 23, 2022

Policy Brief, Volume 1, Issue 2, February 21, 2022

Policy Brief, Volume 1, Issue 1, February 2022

 

*************************************************************

Position Statements

Utah Citizens’ Counsel Position Statement on Constitutional Amendment Proposal G, issued on September 7, 2020

The UCC opposed Constitutional Amendment G on the November 2020 ballot. Unfortunately, it passed, allowing expansion of income tax revenues, currently limited to public and higher education, to “supporting children and supporting people with a disability.”      

The ballot language stated “Shall the Utah Constitution be amended to expand the uses of money the state receives from income taxes and intangible property taxes to include supporting children and supporting people with a disability.” Yea ___or Nay ___

 

UCC’s major reasons for opposing Amendment G include the following:

(1) Utah does not begin to fund education at the levels needed currently;

(2) HB 357– a somewhat improved distribution scheme for public education funds–which takes effect if the Amendment passes, is not a guarantee of future funding. It can be amended or repealed by any future legislature;

(3) If the Amendment passes, the Lieutenant Governor’s Office estimates the loss of education funding at $600 million initially, and the potential for far higher losses in the future is great;

(4) Once in place, amendment or repeal of this constitutional amendment will be prohibitively difficult, while statutory amendment or repeal of HB 357 is far easier;

(5) The legislative flexibility to be achieved by expanding the income tax earmark is hypocritical. The Legislature has failed to achieve flexibility in its use of its sales tax revenues for children and people with a disability because of sales tax earmarks, especially for road construction, of about $500 million and failure to eliminate tax exemptions and tax credits that are no longer justifiable;

(6) the ballot language is irresponsible because it does not inform voters that the impact of a yes vote to support children and to support people with a disability would seriously affect education revenues by greatly expanding the constitutional earmark currently dedicated solely for public and higher education. In other words, it is a one-sided explanation of the ballot proposition.

A full explanation of the opposition position we issued at the time is at Position Statement on Constitutional Amendment Proposal G.
Nov. 2019 Letter to the Governor re tax reform

The Utah Citizens’ Counsel delivered a letter to Governor Herbert on November 21, 2019, with our evaluation and position with respect to the latest tax proposals from  Utah’s Tax Restructuring and Equalization Task Force. To access the letter click here Letter To Governor Herbert

 

Between 2014 -2018, UCC Annual Reports contained our position statements and replaced separate position statements from 2012 and earlier.

The following are a number of positions taken earlier by the UCC.

2012 Medicaid Eligibility Expansion
2012 Statement on Redistricting for the Salt Lake City Council
2011 Redistricting Effort

Principles

Events

Endorsements

Maps

Congressional

State Senate

2010 START Treaty
Ethical Government Reform Rationale

Section One: Legally Prohibited Violations of Ethics Standards

Section Two: Financial Reforms

Section Three: Independent Ethics Commission

Section Four: Reforms to Enhance Utah’s Democracy

2010 Health Care
2010 Immigration