Thursday, July 09, 2009

Scott Schwebke Fleshes Out the Boss Godfrey 2010 Budget Veto Story

Added bonus: Supplementary supporting documents

By Dan S.

Scott Schwebke's article on the budget veto, which WCF reported yesterday, is now up on the Standard-Examiner web site.

In addition, the S-E has posted a fascinating 13-page memo, outlining the mayor's legal arguments. It'll take some time for us all to digest this, but here are a few points:

1) The mayor is trying to veto the policy language on the MWC, Lorin Farr Pool, and golf courses without vetoing their actual appropriations. Whether he can do this is legally questionable, because his line-item veto applies only to appropriations. The memo cites some case law (from other states) on this question. However, putting aside the legality question, this tactic will make it harder for the council to find the votes to override the veto.

2) The mayor is claiming that the council must take a single up-or-down vote on overriding his veto, rather than separate votes on the three separate policy items. (His reasoning on this makes no sense to me at all.)

3) The mayor gives multiple reasons why he believes the policy language is illegal in the first place, under state law. We've heard most of these before. If the council doesn't override his veto, these legal issues will probably be moot for the time being. But make no mistake: The mayor is claiming here that he has the unilateral power to dispose of city recreational facilities, and that the council can do nothing to stop him.

Editor's addendum: A coupla added points:

1) Godfrey's memo also cites and relies upon a 1978 Utah Supreme Court decision, Martindale v. Anderson, an electronic copy of which we just happened to already have available on our storage site.

2) Notably, Mr. Schwebke also reports that the matter will be set for next week's Tuesday council calendar, although a possible override vote may not actually happen before early August:
The veto is set to be officially presented to the city council at its meeting Tuesday, said Bill Cook, the council's executive director. However, a vote on the veto won't likely occur until the council's Aug. 4 meeting, he said.
Although Mr. Schwebke doesn't provide information to account for this delay, we'll assume the time lag is intended to provide time for the Council's attorney, Mr. Hall, to review Mr. Godfrey's Gary Williams neoCON rants legal arguments and to prepare his own counter-memo.

Significantly though, the projected August 4 veto override date falls well beyond the July 15, 2009 municipal election filing deadline.

So, as we see it, that's just one more reason, we think, for civic minded Ogden Ward 3 residents to seriously consider filing for the Ward 3 council seat, in which council incumbent Doug Stephens presently stands unopposed. Our view is that it certainly wouldn't hurt to have a hungry Ward 3 council challenger or two looking over councilman Stephens' shoulder, (or breathing down his neck, as the case may be.)

Who will be the first to comment?


wildcat said...

Dan wrote: "But make no mistake: The mayor is claiming here that he has the unilateral power to dispose of city recreational facilities, and that the council can do nothing to stop him."
I find this line of argument by the mayor to be most fascinating. So, Council (years ago) approved the construction and operation of El Monte and Mt Ogden golf courses. But Godfrey is saying it is within his power as Mayor to decide today whether or not the city continues to have these golf courses???? In other words, once Council has created any city-owned entity it falls completely under the authority of the mayor, not simply to administer it, but to decide if it shall remain a city-owned entity. A very strange theory of government.

monotreme said...

I'm not an attorney.

But it seems to me that Martindale may have been superceded, in whole or in part, by changes to the Utah Code since 1975.

Further, I'm reading this part of the decision (p. 7):

The Act, by direct implication, confers policymaking functions upon the Council since it expressly empowers the Mayor to execute the policies adopted by the Council. The policy-making powers reserved to the Council clearly do not encompass decisions to buy or sell property or to otherwise manage it. On the contrary, those policy-making powers only pertain to its authority to prescribe by ordinance the general rules to be followed by the executive branch in exercising its powers of property management. We
consequently hold that the management of city property, including its sale and purchase, is an executive function reserved to the Mayor.

It seems to me, then, that the question hinges on whether the ordinance instructing the Mayor to keep the Marshall White pool open is "managing" the property, or setting forth "general rules to be followed".

In my mind, I think of "managing" as overseeing the day-to-day operations of the Marshall White Center. I see "general rules to be followed" as things like, "you should have these programs available".

Crockett's dissent is particularly relevant to the present situation, I think.

Dan S. said...

The Martindale decision also makes analogies to separation of powers at the state and federal levels. Can the legislature mandate that a particular state park be maintained? Can Congress mandate that a national park remain open? Or does the governor or president have the unilateral power to dispose of these parks?

monotreme said...

The mayor's memo is laced with combative and judgmental language which I find inappropriate.

Still, there is a passage I'm confused by.

On p. 6, he says that he executed a lease agreement on Jun 2, 2009. Then he cites Ogden City ordinances that require public notice and hearings "prior to the lease of significant parcel". So he is drawing a distinction between the execution of the lease agreement, which he moved forward without notice, and the actual leasing of the property, which he claims occured with notice.

That seems an awfully tortured argument to me.

monotreme said...

Good question, Dan. For example (just to take a hypothetical), can Congress stipulate that guns can be carried in National Parks?

monotreme said...

The citations on pages 8 and 9 that seem to indicate that the Council cannot alter the Mayor's chosen language actually apply only to currently existing, valid contracts.

Yet, the Mayor wants to argue that the contract did not exist until he says it existed. It was "executed" on June 2 and from that point forward, he claims, Council had no right to alter it. Yet the necessary approvals were not obtained, and legal requirements met, until Jun 29, after Council had indicated its policy direction in the Jun 16 meeting.


History is truth! said...

People, There will be a candidate that will run against Dougy. I know this person and he will file soon. So lets not worry about it and go after the veto override. Lets just see where Mr Stevens sits on the override and commit him now where he will vote. So every one call him.

Curmudgeon said...

[Note: I generally don't like to cross post here and on the SE comment site, but I'm strapped for time this AM. My apologies. This virtually an identical cross post.]

This is no longer a matter of simply "is it a good idea to lease out operation of the MWC?" The Mayor's claims, in his veto message, involve a great deal more, and would end up eviscerating the Council's budget powers.

Two examples. The Mayor does have, on appropriations, the right to exercise a line item veto. But he's claiming now that he can veto the language in the Council's budget amendment specifying what the money can be used for, without vetoing the actual appropriation. If he can legally do that, the Council's budget authority is all but gone. It means the Mayor can keep in the budget the money appropriated, but use it for a purpose other than the one for which the Council approved it. This goes way beyond the question of whether leasing the MWC is a good idea or not.

Secondly, the Mayor is claiming that he has virtually uncontrolled powers to sign contracts on behalf of the city, even if such contracts commit the city to pay large sums out of the next fiscal year budget before the Council has approved that budget or those expenditures. His claim seems to be that the Council must approve funding for any contract the Mayor signs. Period.

Understand what that means. If, next February, the mayor decides Ogden needs new ideas, and he signs a contract with "Wasatch Bright Ideas LLC " [C. Peterson, prop.] requiring Ogden to pay WBI $250K a month to think them up new ideas beginning July 1 [first day of the new fiscal year], then the Council has no recourse but to put that $3 million dollars in the budget whether it wants to or not, because it cannot alter terms of a contract the Mayor signed under any circumstances.

This is simply a power grab that, if sustained, will virtually eliminate the Council's budgetary authority.

So, seems to me, a great deal more is at stake here than simply "is leasing out the MWC to a private operator I good idea?"

Possibly I've mis-read something in the Mayor's veto message, in which case I'm sure [and I hope] someone will point out my mistake. But for the moment, that's how this looks to me --- as a bare naked power grab on the part of the Mayor.

Ogden Dem said...

Does anyone kno what are the boundaries of Ward 3 where Stephens lives?

Count me in on contacting all council members to share my thoughts on this insanity.

RudiZink said...

Ogden Dem:

The Ogden City website has a pdf map of Ogden Ward 3. Press the appropriate "buttons" to enlarge it, and you should be able to make out the boundaries:

Ward 3 Map

Bullet Sponge said...

This is off-topic (sorry) but I think those of you who would like some background on Matt Godfrey's background should watch this video on the front page of ESPN's boxing website...


monotreme said...

Bullet Sponge:

Explains a lot about his encounter with The Bicycle Thief.

lion said...

i and many others in Ogden hope that the city council looses this battle. i pray nightly that the upstanding and lawfully elected mayor of Ogden will not have his vision destroyed by the satanic forces that surround all of the righteous during these latter days. i hope that the anti-Mormon and anti-truth bloggers here can come to the realization that their spirits are black with vice and avarice, and pull for the common good, rather than agitating for the price of lies. thank you.

monotreme said...


There is so much to comment on here, but I have one question.

Why is it that you feel compelled to speak for others?

You begin:
i and many others in Ogden hope...

I speak only for myself. I have agency. Don't the people you're presuming to "channel" have agency too?

Also, when you comment here and on the S-E webpage, you might want to check the definition of "lose" vs. "loose".

Bullet Sponge said...

lion? More like a troll.

blackrulon said...

The good citizens of Ogden need to let their council representative their feelings on the mayors veto. The problem is that if the mayors veto is not overriden he will then use this as a excuse to again attempt to extend his power. The way the veto override vote goes will be an important factor, although not the only one, is my choice in the city elections this fall. If we are to become a world class recreation destination we should fund all many types of recreation, swimming pools, gold courses, hiking trails, rock walls, etc. How about a list of the various types of city activities and services eliminated or cut back under the current adminstration. By the way, since their has been a dollar fiqure put on golf course losses how much do we spend annualy on hiking trails, bike paths and city park maintenance. It would seem that they do not generate any revenue to offset the cost of operation.

Curmudgeon said...


What would be the consequences of the Council overriding the veto? And what recourse with the contractor and Mayor have if the Council did?

Danny said...


You are right. Martindale v Anderson was nullified by legislative action, but the essence of Martindale was re-imposed in Ogden by a former, kiss-up city council. The city council dilly dallies. They should undo that damage.

What is really going on here is that Marshall White is a test case for Godfrey. If successful, Godfrey will sell off whatever he wants, golf courses, parks, bench land, to his cronies.

In so doing, he will establish a lifelong source of income whatever may come. His cronies will receive him into everlasting habitations. It is, after all, in the scriptures, so it must be okay.

See below. The "rich man" is the citizenry of Ogden. The "steward" is Godfrey. The "debtors" are Godfrey's corrupt business cronies. Read and learn.

Luke 16:

1 And he said also unto his disciples, There was a certain rich man, which had a steward; and the same was accused unto him that he had wasted his goods.
2 And he called him, and said unto him, How is it that I hear this of thee? give an account of thy stewardship; for thou mayest be no longer steward.
3 Then the steward said within himself, What shall I do? for my lord taketh away from me the stewardship: I cannot dig; to beg I am ashamed.
4 I am resolved what to do, that, when I am put out of the stewardship, they may receive me into their houses.
5 So he called every one of his lord’s debtors unto him, and said unto the first, How much owest thou unto my lord?
6 And he said, An hundred measures of oil. And he said unto him, Take thy bill, and sit down quickly, and write fifty.
7 Then said he to another, And how much owest thou? And he said, An hundred measures of wheat. And he said unto him, Take thy bill, and write fourscore.
8 And the lord commended the unjust steward, because he had done wisely: for the children of this world are in their generation wiser than the children of blight.
9 And I say unto you, Make to yourselves friends of the mammon of unrighteousness; that, when ye fail, they may receive you into everlasting habitations.

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