In one of his last acts as county attorney, Grand County’s top prosecutor declined to file criminal charges against a San Juan County clerk who illegally booted a Navajo candidate — now a county commissioner — from the November ballot.
Former Grand County Attorney Andrew Fitzgerald sent a letter to San Juan County prosecutors Dec. 21, outlining his reasons for not charging clerk John David Nielson, said Danalee Gerber, a paralegal for Grand County, on Wednesday. Fitzgerald left the prosecutor’s office in January to work in private practice.
The Grand County Sheriff’s Office had investigated Nielson for possible criminal charges after a federal judge said in August that Nielson had overstepped his role as the county’s top election official in falsifying the date of a complaint against then-candidate Willie Grayeyes.
A first complaint, emailed by a county resident, asserted Grayeyes didn’t live in the county and wasn’t a qualified county commissioner candidate. Nielson later solicited a new, formal complaint from the same resident — which U.S. District Judge David Nuffer also said was illegal — then backdated it, and sent a San Juan County Sheriff’s deputy to investigate Grayeyes' home.
The second complaint eventually led to Nielson taking Grayeyes off the November ballot. Grayeyes was ultimately put back on the ballot and won the election.
When reached by phone Wednesday, Nielson, who is still the county clerk, declined to comment on the case, although he said he hadn’t yet heard about the prosecutor’s December decision.
In evaluating the case, Fitzgerald looked at both the state election code and the Utah criminal code to find a criminal statute that applied, and ultimately he couldn’t find one, he told The Salt Lake Tribune on Wednesday.
Nuffer, the federal judge, had been considering Grayeyes’ civil rights and civil provisions of the state election code. But that code did not contain possible criminal charges that would apply to Neilson’s actions, Fitzgerald said.
In the criminal code, Fitzgerald considered a felony charge of false or inconsistent material statements, in connection with Nielson backdating the second complaint. But he said that wouldn’t apply because backdating the document “didn’t change anything materially" in the case.
"It wasn’t like backdating was a smoking gun that allowed the clerk to exclude Mr. Grayeyes [from the ballot],” Fitzgerald said.
Then, Fitzgerald said, he weighed a class B misdemeanor charge of abuse of office. "And even that charge wasn’t going to fit the facts,” he said, because he couldn’t prove Nielson abused the power of his office by taking Grayeyes off the ballot with the intent to benefit himself or another, or to harm Grayeyes.
Fitzgerald pointed out that Nielson, who was serving his first term in the job, sought advice from his predecessor, the county attorney and the Lt. Governor’s Office when he didn’t know how to proceed after receiving the initial complaint.
That, Fitzgerald said, shows Neilson wasn’t using his job as clerk to try to harm Grayeyes or keep in place a historic power structure that places whites over Native Americans in San Juan County.
“There’s just no evidence there for that. The evidence for his intent is that he tried to solve the problem by reaching out to people who really should have known the problem, and they really didn’t help him,” Fitzgerald said.
Fitzgerald said there’s no disputing that Nielson was in error. Yet, he said, that’s “the thing about county clerks. They make a lot of mistakes."
“Their jobs are really law heavy and none of them are lawyers,” he said. “They’re ill-equipped to deal with the amount of law-heavy things they have to do on a daily basis.”
Grayeyes was running for a seat up for grabs after another federal judge invalidated the old voting districts in 2017. The judge ruled the previous boundaries were drawn to ensure the county’s American Indian majority would never hold the majority on the county’s three-member county commission or five-member school board.
Alliance for a Better Utah, a government advocacy and watchdog organization, said in a statement that Fitzgerald’s decision was an “unfortunate development."
Executive director Chase Thomas said Nielson falsifying a document was a “serious crime” and that Nielson should be held accountable for his actions.
“To hear that Nielson may escape prosecution sets a dangerous precedent for our system of government. Citizens must be able to trust that their government officials are acting with the utmost degree of ethics and honesty,” Thomas said. "This incident is only one in a long string of hidden or brazen acts of corruption in San Juan County. We must not allow them to continue.”