SALT LAKE CITY — Several lobbying groups are in the process of trying to persuade lawmakers to vote “no” on a bill that would make it more difficult to hold the government accountable.
Senate Bill 277 aims to eliminate a provision of Utah’s public records law known as the “balancing test.”
The balancing test currently allows government agencies to release records when the public’s best interest outweighs any privacy concerns. It is often used to justify the release of records where government accountability and transparency must be prioritized over government secrecy.
Critics of the bill say eliminating the balancing test would lead to less government accountability and more corruption.
The bill was introduced on Thursday.
VIDEO BELOW: New bill could protect government employees who resign in lieu of discipline
Sen. Mike McKell (R-Spanish Fork) has since acknowledged several concerns related to the bill that “need work.”
On Friday, McKell reviewed batches of records obtained by FOX 13 News via the balancing test. One of the cases involved a Washington County School District teacher who reportedly admitted to kissing students, licking students, and taking students to Hooters. Another case involved a Tooele County School District teacher who reportedly admitted to sexual misconduct with a student.
“I do think records like this should be public,” McKell said.
But his bill would accomplish the opposite.
Why?
Technically, neither case was “sustained.”
The employees resigned in lieu of discipline.
In at least one of the cases, the district told parents the teacher resigned for “personal reasons.”
Cari Bartholomew, the state director for Utah Moms of America, said she is concerned McKell’s bill will encourage teachers to resign before they can be disciplined – a strategy to prevent parents and future employers from finding out.
“Parents don’t know,” said Cari Bartholomew, the state director for Utah Moms of America. “Now you’re trying to say there’s things that they shouldn’t be allowed to know?! That’s the problem!”
Bartholomew said the bill would prevent parents from being able to have the necessary information to protect their children — a vital public interest currently afforded to parents via the balancing test.
“Many people will just go and find another job in the same field,” she said.
Under current law, sometimes investigative reports are released even if the employee was not disciplined or did not resign.
Grantsville investigated Mayor Brent Marshall in 2018 due to a series of complaints. The report, which was released via the balancing test, detailed years of concerns related to workplace harassment and misconduct.
The report shows that Marshall called himself “touchy,” often “raised his voice,” and admitted to handcuffing a coworker.
Marshall chose not to run for reelection.
“I’m finding that a lot,” said FOX 13 News investigative reporter Adam Herbets. “People will resign so there’s not a paper trail, and that prevents it from being a public record... Should government employees be allowed to have these records held in perpetuity because they resigned before the investigation could be completed?”
“I think that’s a good question,” McKell responded. “I think we need to work on that. The answer, to me, obviously, is no.”
McKell called it a “loophole” that needs to be closed.
"How can you guarantee that these types of records will still be made public?” Herbets asked. “I understand your intent, but I don’t think that’s what the bill says.”
“I think that’s an open question,” McKell said. “I think that’s a good question. I think we need to work on that.”
The bill already appears to have several critics in government.
“There is a disturbing pattern with the Utah establishment,” wrote Rep. Phil Lyman, R-Blanding. “Utah should value sunlight and transparency over obfuscation. This is a bad bill.”
“We need more transparency in government, not less,” wrote Riverton Mayor Trent Staggs.
"The law is totally bonkers and broken,” wrote Rep. Matt MacPherson, R-West Valley City. “I don’t blame him for trying some fixes, but this is not the way, imo. I hope it gets substituted before hitting committee or at least the house.”
McKell said he would be working with lobbyists to work through potential solutions.
As of Monday night, the bill had not been updated. It will be debated before the Senate Government Operations Committee on Tuesday at 4:00pm.