[Photo courtesy of San Juan Record]

Grand County is declining to prosecute San Juan County Clerk David Nielson for falsifying election documents before the 2018 San Juan County election.

Due to a conflict of interest between the San Juan County Attorney’s Office and Nielson, an investigation into the incident was directed to Grand County, the Utah Attorney General’s Office said on Dec. 6.

The Grand County Sheriff’s Office Investigator and Public Information Officer Lieutenant Kim Neal completed an investigation, said Grand County Attorney’s Office Executive Legal Secretary Danalee Gerber by phone on Jan. 15 after the Moab Sun News called to inquire into the status of the investigation.

Former Grand County Attorney Andrew Fitzgerald screened the investigation. Gerber did not release further information, saying that a report can be obtained from the sheriff’s office.

Nielson attempted to stop Willie Grayeyes from running as a candidate in the 2018 election for San Juan County Commissioner.

During a hearing in Moab on Aug. 7, court statements revealed that Nielson had received an email from San Juan County resident Wendy Black, who told the clerk that Grayeyes was not a resident of the county. Nielson then initiated an investigation into Grayeyes’ residency with help from the San Juan County Sheriff’s Office. Nielson’s March 21 email to the San Juan County Sheriff’s Office said, “It might not hurt to send someone out there … to take pictures … to look around,” federal judge David Nuffer said during the hearing. Nuffer said Nielson did not have the authority to launch an independent investigation into Grayeyes’ residency and use it to challenge his candidacy in the election.

Following his investigation, Nielson later backdated an April document to reflect the date of Black’s initial email on March 21.

Nuffer said Nielson’s actions were outside of his legal authority and that there was “no question” the clerk was not following state statutes.

Nielson’s attorney, Blake Hamilton, defended the clerk’s actions during the hearing, saying that Nielson admitted making a “mistake” and didn’t know how to proceed as clerk with the question over Grayeyes’ residency.

“[Nielson] had received no-to-little training on how to handle this situation,” Hamilton told Nuffer.

After the federal hearing, on Aug. 7 and 8 the Moab Sun News called the Utah Attorney General’s Office, San Juan County Justice Court, San Juan County Attorney’s Office, Grand County Attorney’s Office, Utah Lieutenant Governor’s Office and the office of the San Juan County Clerk and proposed the question to each agency, “What happens when a county clerk falsifies documents?”

A media spokesperson who answered the phone at the Utah Attorney General’s Office said its office was not involved in the matter, but followed up with an email on Aug. 8 citing Utah Code, part 5, “Falsification in Official Matters” and Utah Criminal Code “Providing false information to law enforcement officers, government agencies, or specified professionals,” both of which can carry a penalty of a class B misdemeanor if the person is found to be in violation of the law.

Under Utah Criminal Code, a person is guilty “if he … knowingly gives or causes to be given false information to any state or local government agency or personnel with a purpose of inducing a change in the person’s licensing or certification status or the licensing or certification status of another.”

The Utah Attorney General’s Office said on Dec. 6 that its office did receive a referral for investigation into the matter, but “discovered that Grand County’s Sheriff’s office was already investigating and our office has a policy that allows local law enforcement agencies to conduct and finish their investigations.”

On Jan. 16, a public records request for the documents included in the investigation was hand-delivered to the Grand County Sheriff’s Office by the Moab Sun News. The Moab Sun News inspected documents in the investigation provided by Neal.

Neal said the San Juan County Attorney’s Office and San Juan County Sheriff’s Office reached out to Grand County on Sept. 10 to complete the investigation into Nielson’s actions and his involvement with Willie Grayeyes.

Neal said he completed in-person interviews, including a deposition of Nielson, and reviewed the statements and evidence presented in court at the federal hearing on Aug. 7. Neal said it took him about two months to complete the investigation, which also consisted of reviewing the Utah Criminal Code and the Utah Election Code.

“The original complaint (from Black) was in the form of an email. (Nielson) looked into it, got support … and then backdated the challenge,” Neal said.

Neal said his investigation was wrapped up sometime after the November election and was submitted to the Grand County Attorney’s Office for screening by Fitzgerald.

In an email to San Juan County Attorney Kendall Laws and deputy county attorney Matt Brooks on Dec. 21, Fitzgerald’s analysis said the facts and evidence in the case are not enough to meet the burden of proof beyond a reasonable doubt for criminal charges, and may not be enough to set a preliminary hearing in the case.

The report said that although one can surmise that Nielson was attempting to preserve the political status quo in San Juan County, the evidence to support this assertion is limited, if not absent.

The most likely conclusion that can be made, Fitzgerald said, is that Nielson did not know how to handle the election complaint that he received and that he made many errors in his attempt to carry out his election duties as clerk. It is not likely that a criminal prosecution would be successful, nor serve the interests of justice, especially considering the civil remedies available to Grayeyes, the report said.

The dispute over Nielson’s actions as they apply to the election code is based in civil law and would require a civil remedy, the report said, but Neal said that the Utah Lieutenant Governor’s Office does not seem to view the case as an election issue.

During a call to the San County Attorney’s Office on Jan. 16, Brooks said the full investigative report may be discussed at a hearing scheduled for Monday, Jan. 22, in the 7th District Court in Monticello, but said he did not know what would be presented at the hearing or who would be there. Brooks did not respond to requests for further information.

Grand County declines to prosecute clerk in Willie Grayeyes case

“The original complaint (from Black) was in the form of an email. (Nielson) looked into it, got support … and then backdated the challenge.”