By Myrna Trauntvein
Times-News Correspondent
Quinton Kay, council member, requested a letter
written in his defense by his attorney be made a part of the
minutes of council meeting.
While Mayor Bryce Lynn did read part of the letter
into the minutes, he did not want the contents to be
reported by the press.
"I think we should just put this behind us," said
Lynn. "This could go back and forth endlessly."
Nevertheless, Kay thought reporting his defense was
only fair.
Since his resignation was requested in a letter
written by Jason Crandall, an attorney, which was made
public, then his personal attorney's response should also be
made public, said Kay.
Wayne H. Braunberger, with the firm of Braunberger,
Boud & Draper, P.C., Sandy, responded to the allegations
that Kay had a conflict of interest in voting on anything to
do with the subdivision ordinance.
The call for Kay's resignation came after a vote to
rescind action taken by the council to allow two
subdivisions the right to use a homeowner's association to
control water which was to be used by lot owners in outside
irrigation.
The ordinance, prior to its amending by resolution,
called for secondary water to be dedicated to each lot,
rather than being controlled by a homeowner's association.
Kay, after his election, made the motion, which passed by a
three to two majority, that the action to modify the
ordinance, be rescinded.
"I believe that recission was proper," said
Braunberger.
Braunberger said the state constitution provides that
the power of the government be divided into three distinct
departments: the legislative, the executive, and the
judicial. It is also against the law to exercise any of the
functions of any department by any other department of
government.
Because of this, said Braunberger, the council's
attempt to interpret the ordinance, which is a judicial
power, may have been outside the power of the council under
the constitution and, for that reason, was properly
rescinded.
Braunberger also defended Kay against the conflict of
interest allegations.
He said Crandall's assertion that the city must
dismiss or remove Kay from office pursuant to Utah Code
Section 10-3-1312, was not right.
"This code section simply does not apply to these
facts," he said.
According to the code, said Braunberger, there must be
a transaction with the city which would involve Kay and the
other parties.
"It should be pointed out that there was no
transaction involved between the city, Mr. Kay or any entity
affiliated with Mr. Kay," said Braunberger. "Mr. Kay's sole
purpose was to see that the city applied its ordinances
equally to all of its citizens."
Even assuming for the sake of argument, he said, that
a transaction between the city and Kay did violate one of
the other provisions of the act, it is clear that Kay did
not knowingly and intentionally violate the municipal
officers and employees ethics act.
"At the time he was sworn in and subsequently, no one
advised him of the disclosure requirement contained in the
Municipal Officers and Employees Ethics Act.
Braunberger said that Kay subsequently attended a
seminar presented by the Utah league of cities and Towns,
where Kay became aware of the requirement to file a
disclosure notice and had now done so.
No one else on the council, at the time of the
rescinding of the vote, had entered disclosure notices at
the time Crandall wrote his letter to the council.
Braunberger alleged that Cory Squire and Rory Nielson,
who were members of the council who approved the proposal
submitted by Pat Painter, owner of Mountain View Estates and
by Kerry Lynn and Bart Jackson, owners of L & J
Development, had more direct conflicts of interest to the
way of Bruanberger's thinking.
Nielson, he said, is a heating and air-conditioning
contractor who has been employed by Lynn and, Squire and his
brothers were currently building a house on Painter's
subdivision where Painter financed a lot to them to build
on.
"While probably not falling under the Municipal
Officers and Employees Ethics Act for the same reasons
discussed above, these appear to be more direct conflicts of
interest."
He said that neither Squire nor Nielson, in the Dec.
9, 2003, meeting had disclosed those conflicts of
interest.
Braunberger said that the accusation that Kay had an
interest in seeing L & J's subdivision delayed was not
true.
"It should be noted that conformance with the water
impact fee ordinance by Mr. Crandall's clients in the same
manner as that ordinance was complied with by Mr. Kay's
affiliated entities would resolve any claim of conflict
because building permits would be allowed."
He said that compliance or noncompliance is within the
control of Crandall's clients.
"Mr. Kay's position is and always has been that all
subdivisions should comply with the same rules," said
Braunberger.
Mayor Lynn said it was still his opinion that the
pointing of fingers was not the best way to handle the
conflict. He thought that would be best done by forming and
passing an ordinance that would best meet the needs of the
city.
In that, Braunberger agreed.
"Having discussed these facts, I believe rather than
trying to point fingers or make personal attacks that it is
more helpful to address the merits of the subdivision
ordinance and its application by Mona City to these and
other subdivisions."
The costs incurred in having Braunberger defend him
will be paid, in full, by Kay.
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