SPECIAL MEETING OF THE
BRIGHAM CITY COUNCIL
September 16, 2014
PRESENT:
Tyler Vincent
DJ Bott
Alden Farr
Ruth Jensen
Tom Peterson
Mark Thompson
Mayor
Councilmember
Councilmember
Councilmember
Councilmember
Councilmember
ALSO PRESENT:
Rick Bosworth
Mary Kate Christensen
Paul Larsen
Bruce Leonard
Kirk Morgan
Derek Oyler
Jason Roberts
Mike Nelsen
Human Resource Manager
City Recorder
Economic Development Director
City Administrator
City Attorney
EMS Deputy Director
Finance Director
Police Lieutenant
Appointment of Fire Chief
Mayor Vincent introduced Joseph Bach. He is a paramedic as well as a firefighter for many
years. He also has a lot of administrative experience. The Mayor asked Mr. Bach to say a few
words.
Mr. Bach said he has been in the fire service for about 25 years. He is excited to help the
department grow and take the next steps forward. He has been married for 29 years and has
three boys. His main goal is to make sure his people are safe and the citizens of Brigham City
are safe. He has great people to work with and specifically expressed appreciation to Derek
Oyler.
MOTION: Councilmember Thompson made a motion to appoint Joseph Bach as the Fire Chief
of Brigham City. The motion was seconded by Councilmember Farr. Voting was unanimously in
favor.
Administration of Oath of Office to Newly Appointed Fire Chief
Ms. Christensen, City Recorder, administered the oath of office to Mr. Bach as the newly
appointed Fire Chief.
Discussion on Brigham City Charter
Mr. Kirk Morgan came forward and stated that in recent Council meetings there have been a
number of individuals who have brought up the issue of the City charter and concerns about it
being updated and the process to do so. They also expressed concern that it takes a 2/3
majority vote of the citizens in order to amend what is considered a city charter.
Mr. Morgan gave the history of how Brigham City was established as a City and what a charter
really is. The act that established Brigham City as a city was done by the Governor of the
Utah Territory and the Legislative Assembly of the Territory of Utah in 1867. This is entitled
“An Act Incorporating Brigham City” and is not a charter. It is considered a legislative charter,
meaning the legislature is who established Brigham City; it was not established by the
citizens; it was not put forth for a vote and it did not require 2/3 vote of the citizens to
incorporate.
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Section 10 of this document specifically states that the City Councils shall have the “power
and authority to make, ordain, establish and execute all such ordinances not repugnant to
the Constitution of the United States or the Laws of this Territory as they may deem
necessary for the peace, benefit, good order, regulation, convenience and cleanliness of said
City.” This gives all the authority to the City Council to make any order or regulation that is
not contrary to, at that time, the Territory of Utah, or United States Constitution. It also
gives the City all the power to establish, amend or appeal any order that would be used to
manage the City, to modify its codes, to establish laws, and to legislate.
The final section of the Act, Section 18, states that “this Act…may be ammended [sic] or
repealed at the pleasure of the Legislative Assembly.” Mr. Morgan explained that this is very
different than what is called a Home Rule Charter. This is what is being misconstrued as what
Brigham City has, which we do not.
The Territory of Utah became a state in 1896 and established the Constitution of Utah. Article
XI Section 1 of the Utah Constitution states that all counties and precincts (cities) in those
counties were incorporated into the State Constitution as cities. All the cities and counties
that existed as a territory became cities and counties under the United States Constitution.
All the authority that the Legislative Assembly had at that time was then given to the State
Legislature.
Throughout the history of having cities and counties, the State Legislature has changed,
amended, and modified the powers and structures of cities. This was done in 1911, in the
1930s, the latest being the Municipal Act of 1977 which has been amended several times. This
laid out the classifications of cities and towns, and the powers and authority that the cities
have to carry out their authority. It also limits the authority of cities and towns. Throughout
Brigham City’s history the State Legislature has modified, by State Statute, the City’s charter
many times. The Legislature always has the power to limit what cities can do. Brigham City
lives by the respect of the State Legislature; cities do not live on their own.
There is an exception to this. In 1932 the State Constitution was amended. Many who have
commented in the public comment period regarding the “charter” are incorrectly referring to
Article XI Section 5 of the Utah Constitution. This section of the Utah Constitution was
amended to provide communities with an alternative form of incorporation separate from
those allowed in Title 10 of the Utah Code, by legislative charter or by historical general law.
This alternative method of incorporation is what is commonly known as a “home rule
charter.”
Under the “home rule charter” method, cities may initiate their own charter proposal, put it
to the vote of the citizens, which has to be ratified by a 2/3 vote. There is currently one
community, Tooele, that goes by this 1932 amendment. Because of this, the City Council
cannot amend their Code, it has to be amended by a 2/3 vote of the their citizens. There has
been some confusion that Brigham City has to do the same, but that is not the case; it has
never been the case. Brigham City has never been a “home rule charter” city.
The Utah Supreme Court has specifically stated what “home rule charter” cities are in the
case of Provo v. Ivie in 2004. Provo read Article XI Section 5 and was trying to use the powers
given to “home rule charter” cities to use imminent domain outside of their jurisdiction.
Provo was established prior to 1932 and they were not a charter city. The State Supreme
Court ruled that Provo was formed prior to the State Constitutional Amendment of 1932 and
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had not subsequently established a charter in accordance with the rules of Article XI, Section
5.
Mr. Morgan continued that members of the community have also suggested that since Brigham
City is an incorporated City under the laws of the State of Utah, that we are required to have
a board of directors. In Title 10 it states who the officers of the municipal corporations are
and how that management is directed. It states that City council and mayors are elected and
they carry out and rule over cities and towns. Cities do not act as a board of directors of a
business would, but as a municipal corporation as outlined in Title 10 of the Utah Code.
Mr. Morgan explained that Brigham City’s Act of Incorporation probably changed weeks after
it was established when they started passing laws and ordinances. It is a continuing changing
document. Every time the Council passes a new ordinance, it changes the City Code.
Discussion on Video Equipment in Council Chambers
Mr. Morgan stated that there is no legal requirement to have video equipment in City Council
meetings. The State Code requires audio recordings and that minutes be taken and later
approved by City Council. Any other issues regarding this is up to the City Council. There are
pros and cons on both ways.
He added that if there is a concern or problem with the audio recording, there is no legal
liability on the City because there is no requirement for a video feed of any kind.
Ms. Christensen clarified that the written, approved minutes are the official record. Neither
the video nor audio recording is the official record. The audio recording is only kept three
years.
Councilmember Jensen said she has had a lot of questions on why the written minutes are not
verbatim. She asked Ms. Christensen to explain how she deciphers what is put in the minutes.
Ms. Christensen explained that it states in the Utah Code that the minutes should be a
summary of the meeting. When she listens to the recording she thinks about 1) what people
might want to know ten years from now; 2) what could possibly be called into a court
proceeding, and 3) if it is something that has been discussed before or stated by the Council
before, she does not include that because it is in a previous set of minutes. This is what she
has learned in 20 years of attending recorder conferences and training.
Councilmember Thompson said the current equipment does not seem to be working very well.
He asked what the cost would be to purchase better equipment. Mr. Roberts came forward
and said for a production that is high quality it would be $25,000-$50,000 per year. This
would be to have someone do the productions. He was not sure what it would be to upgrade
the current software.
Councilmember Jensen reported that there have been 4,635 viewers since 2012, for an
average of 103 views per meeting. She added that when the former Mayor and Council put
this in place, it was because they felt using modern technology would help promote UTOPIA
and show what it can do, and also for more transparency. It was supposed to eventually be
interactive.
Councilmember Jensen said there were people who said staff was intentionally not recording
some of the meetings or portions of the meetings. She felt that if the City took the recording
responsibility away from staff and maybe have a volunteer from Utah State University do it as
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an intern, staff would no longer get that criticism. The Council asked her to look into the
possibility of an intern.
Councilmember Peterson said another possibility is to just use a video recorder and record the
meetings. This would not provide a live feed, but people could look at it later.
The meeting adjourned at 6:40 PM.