Critics howl about UTOPIA non-disclosure agreements

Thursday , March 06, 2014 - 2:35 PM

Tim Gurrister, Standard-Examiner Staff

UTOPIA’s requiring public officials to sign non-disclosure agreements is attracting critics, some virulent.

The high-speed fiber optic service organization mandated city officials from 11 of its owner cities to sign the documents, the company’s legal counsel confirmed, to keep briefings in recent weeks on future plans confidential.

The move angered Perry City Attorney Duncan Murray.

“UTOPIA shouldn’t be putting us in a position where it’s virtually impossible to be 100 percent honest and 100 percent legal,” said Murray, also Perry’s city manager.

“It hurts my conscience to be placed in these situations. My little Jiminy Cricket is sitting on my shoulder whispering in my ear: ‘Be careful.’”

Competitors, like Comcast and Century Link, as private companies can close their meetings, he said. “But UTOPIA organized as a public entity. And once you choose to organize as a public entity you have to act as one. You can’t pick and choose which laws you want to obey ...

“Instead of discussing how close we can stand to the edge of the cliff without falling off, we ought to be talking about getting away from the edge of the cliff. UTOPIA is asking us to dance on the edge of the cliff.”

Murray and other city attorneys said UTOPIA met with city council members in groups no larger than two for their presentations. Three members would constitute a quorum for a 5-member council, making it a public meeting requiring public notice 24 hours beforehand.

Brigham City and Layton officials confirmed that scenario was something UTOPIA carefully avoided during the sessions in late October and earlier this month on the broadband Internet connector’s future plans.

UTOPIA was formed in the late 1990s through bonding with its member cities, payment of which will continue for 25 years. Layton, for instance, pays $2.1 million a year for its UTOPIA bonds, Brigham $430,000 a year, and Perry $104,000.

“It’s dangerously close to being illegal, even though it’s not technically illegal,” Murray said of the NDAs and the meetings.

“You follow the spirit of the law, not just the letter of the law. Even if it’s legal to have one or two council members in the room for a closed meeting, the whole spirit of the Utah Open Meetings Law is you conduct the public’s business in public.

“We are getting too close to the edge of the cliff when we are asked to sign NDAs and have closed meetings with two council members at a time.”

Randy Dryer, an attorney specializing in media and open government law, agreed with Murray, saying UTOPIA’s handling of the meetings “violates the spirit of the Open Meetings Act. It’s an attempt to circumvent the purpose of the act. It impacts the public’s ability to observe and discuss the public’s business.”

Whenever the matters covered in the NDAs come up for a public vote, Dryer said, the danger is the various pre-briefed city councils will vote without discussion, their minds made up. “The NDAs coupled with the apparent attempt to circumvent the Open Meetings Act — those two things together are what’s particularly troubling,” he said.

“It’s much ado about nothing,” said Dave Shaw, UTOPIA legal counsel.

“What you’re seeing is a tension between two laws, the Open Meetings Law and the Government Records Access and Management Act.”

Shaw argued the information covered in the NDAs is considered protected under GRAMA. “So the question is, how do you discuss the information that is protected under GRAMA?”

City officials have only said the NDAs cover proprietary information regarding confidential business practices of third-party vendors or providers, potential or otherwise.

They deferred to Shaw as to any other detail and Shaw said the NDAs also cover negotiations with potential vendors or providers.

“This is nothing nefarious, nothing serious, and is intended to fully comply with the letter of the law under GRAMA,” Shaw said. “When the proper decision is to be had, we will discuss it in public.

“We will release the protected information for a public vote.” He said he couldn’t predict when that series of public votes from the member city councils will take place.

“What we’re doing involves a variety of companies on a variety of fronts,” Shaw said. “Until the deal happens, there are too many opportunities for it to fall apart, as well as succeed.”

He said the only thing unusual about the process is “the number of elected officials we have had to educate about this process.” Officials from all 11 cities approached signed the NDAs, except for Brigham City Councilwoman Ruth Jensen. “To my knowledge she’s the only one,” Shaw said. Jensen is a critic of UTOPIA, calling it a waste of massive amounts of money.

Despite the rancor, Perry’s city fathers, including Murray, all signed their NDAs.

“If that’s the only way you can get the information, that’s what you do,” Murray said.

It’s like a mugging, he said.

“It’s something you don’t want to do, but you have to do it. You give the guy with the gun the $80 in your wallet because you have to.”

With Congress suffering an 8 percent approval rating in polls “the last thing we need is for citizens to lose their trust in their local officials,” Murray said. “And with this, that’s what’s on the table.

“If you’re in quicksand, you don’t stay in it. You figure out how to get out of it.

“I don’t have a feel for all the other city councils, but I can’t think Perry is unique. I’m sure others are uncomfortable. They’re just waiting for someone to say it out loud, then they’ll say ‘Wait a minute, that’s what I think too.’”

Austin Riter, one of the staffers of the Utah Freedom of Information Hotline operated by the Parr Brown Gee and Loveless law firm in Salt Lake City, said his organization would likely issue an opinion on the UTOPIA practices next week. “The question is, is it permissible to have government officials sign NDAs in dealing with public funds?” he said.

Contact reporter Tim Gurrister at (801)625-4238, Follow him on Twitter at @tgurrister.

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