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Governor calls special session for lawmakers in Swallow investigation

By Lisa Riley Roche | Posted - Jul. 13, 2013 at 9:39 a.m.

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SALT LAKE CITY — The Utah Legislature is being called into special session Wednesday by Gov. Gary Herbert to clarify issues surrounding the new House committee created to investigate Attorney General John Swallow.

"We did everything we thought we could do," House Majority Leader Brad Dee, R-Ogden, said Friday of the unprecedented special session of the House on July 3, when representatives voted 69-3 to begin an investigation into Swallow.

Dee said legislative leaders realized last week a special session of the full Legislature would be needed to enact some changes in statute necessary for the committee, established by House rules rather than by law, to operate.

Those changes, Dee said, are ensuring the depositions and testimony taken by the committee are public record under the state's Government Records Access and Management Act, and that the counsel hired by the committee can practice law in Utah.

Dee said because Swallow is being investigated by the Utah State Bar, the lawyers hired to represent the committee cannot be admitted to the state bar. Bids are currently being sought from firms around the country to serve as legal counsel.

"I'm not sure it's cleanup. It's clarification," Dee said of the issues lawmakers will deal with Wednesday, the day of their monthly interim meetings. Unlike last week's House session, there should be no additional cost for holding Wednesday's session.

In his proclamation calling for the special session issued Friday, the governor stated lawmakers can consider changes related to legislative subpoenas, the provision of testimony and evidence, "including the grant of immunity to a witness."

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The proclamation also allows lawmakers to deal with "provisions related to the work of legislative investigative committees," including which records may be protected and when meetings may be closed, as well as the legal counsel issue.

Herbert had previously said he would be "more than happy" to call lawmakers into special session to establish the committee, but House Speaker Becky Lockhart, R-Provo, said at the time she believed the House had the power to handle it.

Had the House started impeachment proceedings against Swallow, the statute changes that will be dealt with Wednesday would not be necessary, Senate President Wayne Niederhauser said.

But there were apparently not enough votes among House Republicans to investigate as part of a possible impeachment, so representatives decided to create a new committee.

Senators, who would sit in judgement of Swallow should he ultimately be impeached by the House, have been advised to avoid commenting on Swallow's situation publicly.

Niederhauser said he did not believe participating in the special session would compromise the Senate's position since the allegations against Swallow likely won't come up.

The few and very narrow exceptions carved out for this special investigative committee appear to have been specifically tailored to the special investigative nature of the process.

–Paul Edwards, Deseret News Editor

The Senate leader said those changes would give the House committee investigating Swallow the same "protections they would have inside an impeachment process."

He said he expected little, if any, opposition to the changes by senators.

Utah Democrats, who have already pressed for greater representation among the yet-to-be selected members of the House committee, called Friday for openness in the investigation.

Matt Lyon, executive director of the Utah State Democratic Party, said Democrats are hoping lawmakers "will not create loopholes that allow the investigation to occur in the backrooms of the Republican caucus."

Deseret News Editor Paul Edwards said legislative leaders were prudent to consult with a coalition of print media outlets about possible exceptions to GRAMA and the Open and Public Meetings Act.

"The few and very narrow exceptions carved out for this special investigative committee appear to have been specifically tailored to the special investigative nature of the process. They don't make any changes to GRAMA itself," Edwards said. "And we have good reason to believe that future use of this kind of extraordinary committee will be a rare. The exceptions seemed reasonable and justified."

Swallow is the subject of federal, state and local investigations into a number of allegations, including that he helped broker a deal for an indicted Utah businessman seeking to stop a federal investigation into his company.

Swallow has denied any wrongdoing and said he will cooperate with the House investigation.

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