SALT LAKE CITY — A legal opinion sought by the Utah Legislature about the special election to fill former Rep. Jason Chaffetz's seat in Congress should be made public, the State Records Committee determined Thursday.
Attorney General Sean Reyes' office wrote an opinion but withheld it from the public, citing an ethical concern over a potential conflict of interest with Gov. Gary Herbert and Lt. Gov. Spencer Cox, who set up the special election over protests from lawmakers.
The opinion was a key point in the dispute earlier this year between both Republican and Democratic lawmakers and the GOP governor over who should have established the process for the special election for the remaining year of Chaffetz's term.
Lawmakers argued they should have been called into special session by the governor to determine how the election should be conducted, and they asked the attorney general's office for a legal opinion on what they saw as a separation of powers issue.
Despite their frustration, legislative leaders decided against filing a lawsuit to assert their authority over the election and overrule the governor's decision to assert privilege and block the release of the legal opinion.
The attorney general has not yet decided whether to appeal the records committee's decision to order the release of the opinion, made after considering a request by the Salt Lake Tribune.
“We recognize the public's concerns related to the release of this draft opinion. We believe that government should be open and transparent to the extent ethically and professionally possible," Reyes spokesman Daniel Burton said in a statement.
But the crux of the debate is over how the attorney general's office should represent the state, Burton said, and there are "strong public interests in promoting the attorney-client privilege."
Reyes "must retain the ability to determine how best to exercise his lawful and constitutional duties. If the draft opinion were released, it could impact our ability to represent our client," he said.
Herbert's deputy chief of staff, Paul Edwards, called for a court review of the decision, noting that the records committee voted to release the opinion despite determining a draft document created by the attorney general's office is a protected record.
"We appreciate the high level of curiosity in this protected draft document (a document that our office has never seen)," Edwards said in a statement.
"Nonetheless, we believe the records committee did not appropriately weigh the compelling governmental and public interests involved in protecting the attorney-client relationship and the privilege accompanying that relationship," Edwards said. "We need a court of competent jurisdiction that fully understands the legal requirements of this relationship to weigh the issues and equities in this case."
We recognize the public's concerns related to the release of this draft opinion. We believe that government should be open and transparent to the extent ethically and professionally possible.
–Daniel Burton, spokesman for Attorney General Sean Reyes
The opinion won't be released until the legal appeals are exhausted. The records committee's opinion will be posted Oct. 23, and the parties have 30 days to file an appeal with the court.
The special election will be held Nov. 7. Chaffetz, whose district included portions of Salt Lake and Utah counties, as well as Carbon, Emery, Grand, San Juan and Wasatch counties, resigned June 30.