This article originally appeared in the Salt Lake Tribune. Read it in its entirety here.
Should the San Juan County clerk face criminal charges for falsifying a document in a failed attempt to boot a Navajo candidate from the November ballot? An outside prosecutor said no late last month. But that won’t be the final word, as the county attorney is seeking a second review of the controversy.
The move comes after pressure from local residents, as well as a statewide advocacy group, which condemned the decision not to charge Clerk John David Nielson as part of a “long string of hidden or brazen acts of corruption” in the southeast corner of the state.
San Juan County Attorney Kendall Laws has asked Davis County’s top prosecutor to take another look at the case against Nielson, who a federal judge said in August abused his role as the county’s top election official when he backdated a complaint against then-candidate Willie Grayeyes and used that to remove him from the race for an open commission seat.
Andrew Fitzgerald — then the attorney for Grand County but who has since left the office to work in private practice — first reviewed the case and declined to file charges against Nielson in December. He has said the changed date on the document, which accused Grayeyes of not being qualified to run for office because he allegedly wasn’t living in San Juan County, “didn’t change anything materially” for him.
A judge ruled that Grayeyes, a Navajo and Democrat, be reinstated in the race. He later won election to the County Commission, creating the first Native American-majority government in modern Utah history.
“It wasn’t like backdating was a smoking gun that allowed the clerk to exclude Mr. Grayeyes,” Fitzgerald told The Salt Lake Tribune earlier this week. He could not be reached for further comment Friday.
But some have questioned whether that was the right call or if Nielson should have faced a misdemeanor charge for abuse of office or felony charge for false or inconsistent material statements — both of which Fitzgerald considered but declined.
Some have said that Nielson’s actions were, in fact, made to exclude Grayeyes from the election even after he sought several times to prove he lived on the Navajo reservation in San Juan County. Without the intervention of the courts, they say, Nielson would have succeeded.
“That backdating was essential to the process that the county was using at the time to boot Mr. Grayeyes off the ballot,” said Steven Boos, Grayeyes’ attorney, on Friday. “Really, they were trying to game the process.”
Election complaints have to be filed and acted on within a short timeframe. If Nielson had not backdated the complaint, which was emailed to him by a Republican resident who ran for the same seat as Grayeyes but lost in the primary, it wouldn’t have been actionable, Boos said.
Nielson used the backdated complaint to initiate an investigation with the sheriff’s office. And he decided Grayeyes was ineligible to run or vote in San Juan County because he had property in Arizona.
Nielson, who is still county clerk, was out of the office Friday and could not be reached.
San Juan County has acknowledged the backdating; its attorneys have defended Nielson’s actions, as has he.
“I realized that that was probably not what I should have done,” Nielson later testified, “but the thought in my head was that the original challenge was done on March 20, and so that’s what we were making this, to March 20.”
In evaluating the case, Fitzgerald said he couldn’t find a criminal statute that applied. It’s possible the case is forwarded to the Utah attorney general’s office for further review, but a spokesman there would not confirm or deny any involvement.
San Juan County has now asked Davis County Attorney Troy Rawlings to re-examine the case, which he confirmed.
“They did ask us to review what Grand County did with this case,” Rawlings said, declining further comment.
A second review will likely be a challenge. If Rawlings’ office were to decide to file charges against Nielson, the clerk’s defense could point to Grand County’s denial as evidence to throw out the case.
But the Alliance for a Better Utah, a liberal government advocacy and watchdog organization, welcomes the second look.
“We’re glad that they’re reviewing it again,” said spokeswoman Katie Matheson. Earlier this week the group criticized Grand County’s decision to decline charges. “Citizens have to trust that their government officials are acting with the utmost degree of honesty and ethics,” she added.
This article originally appeared in the Salt Lake Tribune. Read it in its entirety here.
