A proposition that requires the Payson Town Council to get voter approval of any expenditure over $1 million is likely unconstitutional, according to the town’s contract attorney.
That means the Payson council can spend $1.4 million to buy two fire trucks at a discount without seeking voter approval as stipulated by Prop. 402, approved in 2018.
The Payson council on Sept. 30 approved the purchase of the two fire trucks prior to a Sept. 30 deadline, which means the town will benefit from a $60,000 discount.
The council approved the purchase unanimously.
The decision disregarded the restrictions of the voter-approved ballot measure on contracts greater than $1 million, although Mayor Tom Morrissey and Councilors Janell Sterner, Jim Ferris and Suzy Tubbs-Avakian had all made support for Proposition 402 and Proposition 401 the cornerstones of their campaigns.
The legal opinion focused on Prop. 402, which requires voter approval of any contract exceeding $1 million. It did not address the legality of the companion Prop. 401, which requires the town to get voter approval of any contract, lease or loan lasting longer than three years. The measures were spurred in part by the prior council’s effort to partner with a prep school to build new facilities in Rumsey Park.
The legal advice the council received last week would appear to render Prop. 402 virtually toothless.
“Proposition 402 can’t bind the council to the extent it purports to require the council to submit matters to a public vote where there is no constitutional or statutory authority to do so,” said Aaron Arnson from the firm of Pierce Colman, which is filling in while the town seeks to find its own attorney.
Payson Fire Chief David Staub argued that the town needs fire trucks immediately.
He gave the example of one truck showing up an hour late to a fire because the garage had to finish patching it up.
“Look, the trucks are falling apart,” said Staub.
On Sept. 30, the council received the legal opinion in an executive session. Once out of the session, the council voted to approve the purchase of two trucks.
The final decision came in the wake of an earlier Sept. 26 meeting, where the town’s contract attorney raised the possibility that the council’s effort to quickly buy two fire trucks could run afoul of Prop. 402. After a vigorous discussion and a series of votes, the council put off the decision until Sept. 30 to give the contract attorney time to research the issue.
At that Sept. 26 meeting, Ferris firmly supported purchasing the fire trucks.
“I went out with Chief Staub and we kind of wrestled this around,” said Ferris. “I left convinced the new engine route was the better way to go.”
However, council members worried Prop. 402 would make it impossible to act quickly enough to take advantage of a nearly 10 percent discount offer.
“My concern is with the ordinance 35.04 (or Proposition 402). I think this is a good example of how the administratively restrictive language really prohibits the town from exercising good judgment,” said Councilor Steve Smith.
Turning to Arnson, the council asked for a legal opinion.
The challenge for Arnson, he’s never seen anything like Prop. 402. “This is a unique ordinance among any ordinances I have seen,” he said. The lawyer ultimately sought more time to research the issue.
So the council scheduled a special meeting for Sept. 30, the deadline to qualify for the $60,000 discount.
On Monday, Payson’s legal counsel announced, “the town council has learned that certain case law and other authority exists that may preclude the operation and application of section 35.04 (Prop. 402).