Alcohol Board's Meetings Appear to Violate the Law Wednesday, October 17, 2001   Members of the Utah Department of Alcohol and Beverage Control Commission listen during a petitioner's request for a liquor license in June. Some of the commission's actions were kept secret, which apparently was illegal. (Tribune file photo) BY GREG BURTON (c) 2001, THE SALT LAKE TRIBUNE    Utah's Alcoholic Beverage Control Commission apparently has violated the state's Open Meetings Law for years by conducting one-on-one telephone meetings between commissioners and recording votes in secret.     An unknown number of liquor permits, policies and rules adopted during these undisclosed meetings could be subject to litigation to void the actions, including proposed rule changes adopted in secret Monday during two meetings that ABC Chairman Nicholas Hales declared were of an "emergency" nature.     The ABC Commission hastily conducted the two meetings -- without the required 24-hour public notice -- to make a pair of minor changes to a proposed set of new advertising rules which the commission maintains had to be filed with the state by 5 p.m. Monday. They also made one substantiative correction to a provision that would have outlawed all liquor advertisements depicting religious themes, figures or symbols. The new proposed provision outlaws religious-themed ads if they target minors.     Alerted to Monday's meetings by a story in The Salt Lake Tribune, the American Civil Liberties Union and the Society of Professional Journalists began discussing a potential lawsuit seeking to reverse Monday's action.     Of deeper concern, critics contend, is the avoidance of unmistakable legal requirements by a commission that works in one of the most regulated, culturally contentious and litigious areas of Utah law -- the sale and distribution of alcohol.     "These are not technicalities, formalities, these are very important requirements to make sure the people's business is done openly," said ACLU of Utah Legal Director Stephen Clark. "There is absolutely no excuse for anybody in state government not to be intimately familiar with the letter of the Open Meetings Act. This is inexcusable."     On Tuesday, Department of Alcoholic Beverage Control Director Ken Wynn acknowledged to The Tribune that the commission made a mistake Monday when it didn't notify the public about an emergency meeting. "Yes, we made a mistake and we have gone about trying to fix that ever since," he said.     Wynn said as many as 20 commission meetings have been conducted via a state telephone system that is not equipped to facilitate legally open conference calls. The phones used at the department's main West Valley City office, he said, allow no more than two people on the line at a time.     At least three of Utah's five ABC commissioners must meet in person, or over the same phone line, in order to establish a legal quorum to take substantive action, according to the law. During all of the questionable meetings referred to by Wynn, votes were cast by commissioners in a series of separate, one-on-one calls.     "We've not had the capability to do more than that," Wynn said. "Off the top of my head . . . I'm going to tell you that 95 percent of those were for approval of special event [liquor] permits."     Wynn said he did not know the subject of the other 5 percent of the meetings. Apparently, none of the secret meetings was taped, even though the commission's legally publicized meetings are typically recorded. Additionally, Wynn could not recall if the news media or public were notified at all or at least 24 hours before any of the suspect meetings, a requirement under the Open Meetings Law.     Seven-year Commissioner Vickie McCall, the only social drinker and one of only two non-attorneys on the five-member ABC Commission, said she unwittingly participated in the undisclosed meetings without ever having been informed they might be violating open meetings law.     "In the past they have polled the commissioners individually, over the phone -- that has been done," she said. "It has been a rare occasion. It has happened, but it's not been often."     Commission Chairman Hales and Earl Dorius, the compliance manager -- the driving force behind most of the commission's business -- did not return calls from The Tribune on Tuesday. Neither did commissioners Ted Lewis and Larry Lunt.     After Monday's initial meeting, even as The Tribune queried Dorius and other commissioners about the legality of the first meeting, Dorius and Hales scrambled to organize the second meeting, but only after The Tribune discovered that a vote was never taken to approve exempting the 24-hour notice requirement for the first meeting, a violation of the Open Meetings Law.     The first meeting was conducted through a series of one-on-one telephone calls between Dorius and four commissioners, in violation of the provision governing telephonic meetings.     When the commission recognized the problem, the second undisclosed emergency public meeting was conducted using a tele-conference line at Lunt's Western Property Management Office, Wynn said.     Even with an emergency designation, the law requires "best notice practicable" be given to the public. Dorius did not notify anyone outside the commission or ABC staff.     "They held a meeting that was totally out of view of the public, and the public has no ability to know why the change was needed and even if it was needed," said SPJ attorney Jeff Hunt, a media law specialist. "It's of particular concern with an issue like this that has developed a lot of controversy."     Despite the legal ramifications, at no point Monday was the commission's legal adviser, Assistant Attorney General Thom Roberts, consulted as to the lack of public notice or the nature of the procedures.     The commission's apparently long-standing habit of violating the telephonic requirements of Utah's Open Meeting Law elicited scorn from the ACLU's Clark.     "Goddammit, it's time government understood its obligation to the public," he said. "If we have to file a lawsuit to make that known, that's what we'll do."    gburton@sltrib.com             © Copyright 2001, The Salt Lake Tribune All material found on Utah OnLine is copyrighted The Salt Lake Tribune and associated news services. No material may be reproduced or reused without explicit permission from The Salt Lake Tribune.