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New Swallow report finds five violations of election laws

Published November 25, 2013 10:43 am

Lieutenant governor's office • Each of the five violations could have disqualified Swallow.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Utah Attorney General John Swallow concealed his interests in several businesses and failed to list nearly $60,000 in payments on his candidate disclosure forms — each offense a violation that, before his resignation Thursday, could have disqualified him from office.

Those are the findings, released Friday, of a special counsel hired by the lieutenant governor's office to investigate allegations that Swallow broke Utah election laws.

"The non-disclosure was planned and deliberate and executed in two separate filings," the special counsel's report stated.

The report found five violations and recommended going to court to have Swallow's November 2012 election invalidated — the civil remedy available under the law.

New Lt. Gov. Spencer Cox said in a statement he would take the next few days to determine what action his office might pursue.

Options may have become limited, however, when the first-term Republican attorney general tendered his resignation, effective Dec. 3, professing his innocence but stating that he no longer could bear the financial burden of multiple investigations.

"We certainly need to evaluate [the options], and that's what the lieutenant governor will do over the next few days," said Mark Thomas, state elections director.

Swallow said Thursday he had not seen the report and that it had no bearing on the timing of his decision to step down.

Two prosecutors — Davis County Attorney Troy Rawlings and Salt Lake Count District Attorney Sim Gill — who are in the midst of a probe of Swallow and his predecessor, Mark Shurtleff, said they plan to incorporate the report into their investigation "to determine whether or not verifiable facts support criminal charges consistent with our obligations."

The report cites a pattern of obstruction and interference by Swallow's attorneys, including ignoring requests for documents, attempting to alter summaries of witness interviews and demanding that the special counsel not publicly release evidence. It also notes that lawyers kept Swallow's wife, Suzanne, from testifying, citing health concerns.

The loss of an "apparently massive" amount of information from Swallow's computers and phones — which also has hindered a separate investigation by the Utah House — hampered the inquiry as well.

Specifically, Friday's 136-page report finds that Swallow should have disclosed:

• Income he received from Provo-based Check City and Softwise, both payday-lending businesses founded by the late Richard Rawle.

• Payments totaling $19,117 that went from Swallow's P-Solutions into his personal account, a portion of $23,500 that Rawle paid the company.

• Payments by Guidant Strategies, a consulting business run by Swallow's campaign consultant, Jason Powers.

• Money he received from consulting work on a Nevada cement project.

• His role as an officer in SSV Management.

The report shows an extensive relationship between Swallow and Jeremy Johnson, the indicted St. George businessman who turned to Swallow and Rawle for help in dealing with an investigation by the Federal Trade Commission.

Johnson paid Rawle $250,000 to arrange lobbyists to work on Johnson's behalf. Exhibits show Swallow provided strategic advice to Johnson in 2010, a year after Swallow had become Utah's chief deputy attorney general.

In April 2012, Johnson met with Swallow at an Orem Krispy Kreme, trying to recoup some of the $250,000 paid for lobbying that never occurred.

Swallow told the lieutenant governor's special counsel that he believed Johnson was trying to set him up in the doughnut shop exchange and had him "scared to death" by his threats to publicize the deal during the Republican hopeful's run for attorney general.

Johnson "had become a monster about what he'd be willing to do," Swallow said during eight hours of sworn testimony.

On Thursday, Swallow said he had relied on a lawyer's advice in filing his financial-disclosure forms last year and also consulted with the state attorney, Thom Roberts, who advises the lieutenant governor's office.

Roberts contradicted Swallow's recollection, saying the then-newly elected attorney general approached him for advice in January, after news reports surfaced of Swallow's dealings with Johnson and 10 months after Swallow filed his disclosure forms.

The Alliance for a Better Utah, the progressive advocacy group that filed the complaint with the lieutenant governor in March, urged the office to launch civil proceedings against Swallow and may consider pursuing its own civil or criminal action.

"Just because a person resigns," Executive Director Maryann Martindale said, "doesn't mean there should be no ramifications for their behavior."

Democrats seized on the report and argued Swallow's election should be invalidated.

"The evidence is clear: Swallow cheated," said state party chairman Jim Dabakis. "Legally, he should never have been the attorney general, never taken office, never even been on the ballot. The law is clear. If a candidate cheats, the election is invalid."

Dabakis, who doubles as a state senator from Salt Lake City, contends Utah should hold a special election for his replacement, rather than allowing the Republican Party and Gov. Gary Herbert to pick his successor.

Thomas said the state spent just under $200,000 on the investigation, which was conducted by attorneys from the firm of Snell & Wilmer.

The special counsel was asked to investigate whether Swallow tried to conceal his interest in P-Solutions and the $23,500 the company received from Rawle.

Investigators found that Rawle wanted to pay Swallow for introducing him to Johnson, but Swallow suggested that instead Rawle should pay P-Solutions for consulting work Swallow did on a Nevada cement project.

Rawle paid P-Solutions with money he got from Johnson. After learning the source of the funds, Swallow has said he returned the $23,500 and asked to be paid from another account.

In a deathbed declaration, Rawle explained the arrangement, but the report notes that affidavit was drafted by Swallow's attorney and signed by Rawle, contrary to Swallow's assertion that Rawle wrote the statement himself.

News reports in January revealed that Swallow removed himself as a manager of P-Solutions on March 15, 2012, the same day he filed his candidate financial-disclosure forms, and transferred his interest to his wife.

Nonetheless, the report said, Swallow should have disclosed the income and his role in P-Solutions and SSV Management on his candidate filing.

Investigators also found that Rawle paid Swallow with a dozen gold coins whenSwallow still worked for Check City.

After he had joined the attorney general's office, Swallow sold the coins back in exchange for prepaid debit cards. The report noted Rawle paid Swallow more than agreed upon and more than Swallow reported on his taxes — an inconsistency Swallow blamed on his loss of a debit card before he accessed the full amount.

Swallow's attorney Rod Snow said the report by the special counsel "is not all that fair and objective."

Snow said his legal team never tried to influence witness statements, didn't try to keep Swallow's wife from being interviewed, and sought to comply with document requests.

Swallow's lawyers objected to the release of some private financial information, but Snow believes those records can be made public if those details are redacted.

Snow also disagreed with several of the findings, including that Swallow had to report proceeds from the sale of the gold coins, which he said were a gift from Rawle, not a payment, and therefore did not need to be disclosed as income.

"They seem to have gotten what they wanted," Snow said of the special counsel's report.

Swallow's lawyers had argued the alliance complaint was frivolous and, if officials determined he should have disclosed the payments and business ties, he should have been allowed to amend his report rather than face more severe consequences.

gehrke@sltrib.com

Twitter: @RobertGehrke

Tribune reporter Marissa Lang contributed to this story. —

Read the report

The report from the lieutenant governor's special counsel is available at http://1.usa.gov/1e8ZWE2.