Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal 97-03

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

Joseph W. O'Keefe, Jr., Petitioner vs.

Utah State Retirement Systems, Respondent

DECISION AND ORDER

Case No. 97-03

Petitioner, Joseph W. O'Keefe, Jr., seeks an order requiring Respondent to supply certain information that he considers "records" related to the base number of work hours per week for firefighters for purposes of the State Retirement System and related to lobbying on behalf on the Retirement Systems.

Petitioner presented written argument and documentation and appeared personally, presenting testimony and argument, at the hearing held July 15, 1997.

Respondent submitted letters to the committee through its counsel Kevin A. Howard, Esq. (June 4, 1997) and Gregory D. Phillips, Esq. of the law offices of Johnson & Hatch (July 7, 1997 and July 9, 1997). All three of these letters in behalf of Respondent asserted, on various grounds, that the State Records Committee did not have jurisdiction to hear Mr. O'Keefe's appeal against the Retirement Systems. A hearing was set for June 24, 1997 at which Mr. O'Keefe appeared. Upon the request of Respondent, the hearing was continued to July 15, 1997. Respondent, however, did not appear at the July 15, 1997, hearing, having informed the Committee by letter of July 7, 1997, that it would not do so "because such participation might be interpreted as consent to, or waiver of its argument of lack of, jurisdiction by the State Records Committee."

Not only did the Respondent's continuance inconvenience Petitioner, requiring two appearances instead of one, but Petitioner's argument in support of its refusal to appear at the time to which it had requested the matter be continued, based on waiver concerns, is misconceived inasmuch as a party can appear specially to contest jurisdiction without submitting itself to the jurisdiction of an adjudicative body. Further, if that were not true, Respondent's several written submissions could themselves be taken as consent to jurisdiction.

Respondent's absence rendered the hearing particularly difficult for the Committee, inasmuch as no one was present to respond to the Committee's questions regarding such matters as the relationship between the "board" and the "office," raised by the inconsistent use of those terms in Utah Code Ann. 49-1-201 (Supp. 1996), and whether the Retirement Board had adopted rules it is required to adopt under that same section.

Despite these concerns regarding the difficult position in which Respondent had placed Petitioner and the Committee, the Committee issues the following decision and order.

STATEMENT OF REASONS FOR DECISION

The appeal is denied. It appears to the Committee that Utah Code Ann. 49-1-201 (4) exempts the Retirement Office and Board from GRAMA on the basis of that subsection's exemption of the Board "from those acts which are applicable to state and other governmental entities under this code." This determination is not free from doubt, inasmuch as there is some question whether the "office" is exempted by the statute's exemption of the "board," and it is difficult to comprehend that the legislature intended to exempt the office and the board from all acts applicable to other governmental entities, and therefore difficult to know whether GRAMA, not specifically named as an act from which the Board was exempted, was included in the exemption. With some caution, we conclude that the context of 49-1-201, in view of that section's language as it stood prior to its amendment in 1996, requires inclusion of "office" within the term "board" as used in 49-1-201 (4), on the assumption that the "office" is governed by the "board," and conclude that GRAMA is within the broad language of the section's exemption.

The Committee laments the vastness of the exemption of 49-1-201 (4) that insulates the Retirement Board and Office from all "acts which are applicable to state and other governmental entities," and unanimously declares its support for the proposition that, as "a political subdivision of the state" (Utah State Retirement Office v. Salt Lake County, 780 P.2d 813, 815 (Utah 1989)) charged with carrying out the legal obligations of the state, ("[T]he Fund is a public entity closely related to the Retirement Office. The Fund was created to carry out the legal obligations of the state and its political subdivisions to retired public employees.") the Retirement Systems should be accountable to the people. We nevertheless follow the law as we understand it.

ORDER

WHEREFORE, it is ordered that Petitioner's request for access to the requested information or records is denied.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to district court. The petition for review must be filed no later than 30 days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and by Utah Code Ann. 63-2- 404 (Supp. 1996) and 63-2-502 (7) (Supp. 1996). The Court is required to make its decision de novo. In order to protect its rights of appeal, a party may wish to seek advise from an attorney.

Entered this 18th day of July, 1997.

BETSY ROSS,
Acting Chair, State Records Committee