Is Mesa County’s Clerk and Recorder a Criminal?

Lawsuits and investigations have been in process since before the 2012 election. On December 14, a local attorney delivered to the local AG, a complaint alleging that Mesa County’s Clerk and Recorder should be investigated for criminal activity. What follows after the break is the letter that was hand delivered to the AG, and forwarded to me by the attorney. I removed the letter writer’s address and phone number, but his E-mail contact information is included. There is a citizen’s group mentioned in the complaint–I was present at that meeting.

VIA HAND DELIVERY

December 14, 2012

21st Judicial District Attorney Office

ATTN:  Pete Hautzinger, District Attorney

125 North Spruce Street

P.O. Box 20,000

Grand Junction, CO  81502-5031

RE: Affidavit Alleging “Election Offenses” under C.R.S. Title I, and     Request for Criminal Indictment and/or Grand Jury Investigation

           of Sheila Reiner, Mesa County Clerk and Recorder, regarding the

Conduct of State and Federal Elections in Mesa County, CO.

Dear Pete:

Pursuant to C.R.S. § 1-13-101(1), I hereby file this sworn affidavit with you “stating the name of any person who has violated any of the provisions of this code and stating the facts which constitute the alleged offense”.  As mandated by that Colorado statute, upon the filing of this affidavit, the District Attorney’s office “shall forthwith investigate, and, if reasonable grounds appear therefor, [it] shall prosecute the violator”.  

Specifically, Mesa County Clerk and Recorder Sheila Reiner appears to have deliberately and thus “willfully” violated both C.R.S. § CRS 1-7-802, “Preservation of election records”,  and 42 U.S.C. § 1974, “Retention and preservation of records and papers by officers of elections; deposit with custodian; penalty for violation” .

In addition, by failing to preserve electronic election records in violation of C.R.S. § 1-7-802, Reiner also seems to have violated C.R.S. § 1-13-107, “Violation of duty” , for which the penalty is specified in C.R.S. § 1-13-111, “Penalties for election offenses”.

Moreover, to the extent that retention of election records is addressed by rules promulgated by the Colorado Secretary of State’s office, Reiner may also have violated C.R.S. §  1-13-114, “Failure to comply with requirements of secretary of state”.  

Therefore, and pursuant to your authority under C.R.S. § 20-1-102, I hereby also request that you initiate a criminal investigation of Sheila Reiner, Mesa County Clerk and Recorder, regarding various violations of both state and federal election laws, derelictions of her sworn duties, violation of her oath of office, fraud, breach of trust, and de facto misappropriation of public monies for her personal gain.  See, also, People ex rel. Jerome v. Regents of Univ. of Colo., 24 Colo. 175, 49 P. 286 (1897).

In addition, and/or in the alternative, pursuant to your authority under C.R.S. §§  16-5-205 and 20-1-106, I hereby also request that you convene a grand jury to investigate the conduct of state and federal elections in Mesa County by the Mesa County Clerk and Recorder’s office, under the current direction of Mesa County Clerk Sheila Reiner.

The factual predicates for these requests are as follows:

1. In 2003, then Mesa County Clerk and Recorder Monika Todd initiated litigation under the Colorado Open Records Act (“CORA”) to deny a lawful request by Thomas Bjorklund for election records (unsigned signature cards maintained in “poll books”).

2. Reportedly, Todd initially insisted that the election records sought by Bjorklund could not be disclosed under CORA because their release would enable the linkage of voted ballots to their respective voters’ identities, but later admitted under oath in open court that those records had in fact been destroyed in violation of Colorado law.

3. By letter of  October 2003 (Exhibit “1”) in response to another complainant, then District Attorney Frank Daniels conceded that election records may have been unlawfully destroyed under Todd’s purported stewardship (reportedly, at Friendly Rod’s Recycling – a records destruction firm then owned by now President of Colorado Mesa University, Tim Foster, and at the request of then County Clerk employee Sheila Reiner), but did not find “reasonable grounds to establish violation of the statute in question”.

4. Thereafter — Bjorklund recalls — to avoid further litigation, newly elected Mesa County Clerk and Recorder Janice (Ward) Rich informed Bjorklund by letter that she would cease and desist the unlawful destruction of election records (Exhibit “2”).

5. Subsequently, and as reported in the Grand Junction Free Press (Exhibit “3”), Bjorklund purportedly discovered that dozens of Mesa County voters, who averred that they had voted in the August 2002 Republican primary election, were listed on Mesa County election rolls as not voting, suggesting that their cast ballots were never counted.

6. Fast forward to the Fall of 2010, when Mesa County Clerk and Recorder Sheila Reiner made a presentation to Grand Junction Daily Sentinel Publisher Jay Seaton and members of his editorial and/or reporting staff, in which she demonstrated that her local discretionary procedures enabled the linkage of voted paper ballots to voters’ identities.

7. On November 25, 2011, Reiner made a similar presentation to a group of local citizens (including the undersigned) in which she demonstrated how non-randomized “batching” of incoming paper ballots permitted the linkage of ballots to voters’ identities using reports generated from Colorado’s Registration and Election (“SCORE”) system.

8. On December 16, 2011, Marilyn Marks, a voting rights advocate from Aspen, Colorado, made a presentation to that same group of local citizens in which she reported that Reiner had recently denied Marks’ CORA request for anonymous electronic ballots on grounds that they could conceivably be linked to individual voters’ identities.

9. Marks also reported that Reiner had thereafter initiated litigation under CORA seeking a judicial ruling that the anonymous electronic ballots sought by Marks (and thus presumably all voted ballots) could be lawfully withheld under CORA — because those  voted ballots were not in fact “anonymous” and could be linked to their individual voter.

10. Marks further advised that she had counterclaimed against Reiner under CORA (which Bjorklund had not done in 2003), seeking the electronic ballots and mandatory statutory attorney fees for Reiner’s unlawful refusal to disclose public election records.

11. On January 17, 2012, Karl Castleton, co-chair of the Mesa County Democratic Party, Rick Baer, that Democratic Party’s appointed representative to the Mesa County Canvass Board, and the undersigned, met with Clerk Reiner and Mesa County Elections Director Catherine Lenhart to gain a better understanding of how purportedly anonymous ballots could be linked to voters’ identities using other election-related SCORE reports  – in apparent violation of Articles VII, Section 8, of the Colorado Constitution.

12. At that meeting, Reiner confirmed that – at some time in the past – the Mesa County Clerk’s office had ceased randomizing opened ballots (in order to retain the integrity of the original batches in case of a counting discrepancy), and conceded that — merely by randomizing opened ballots after the human ballot count was machine-verified – the linkage through the “batch reports” generated from the SCORE system back to voters’ identities could be properly, effectively, and irretrievably broken.

13. The undersigned subsequently concluded that — at that meeting — Reiner was  doubly duplicitous:  first, by insisting that her discretionary procedures were required by and in full compliance with both federal and/or state laws, and/or with rules, regulations, and/or “best practices” promulgated by the Colorado Secretary of State; and, second, by failing to disclose that the voters’ electronic ballot images sought by Marks had been entirely expurgated from voting machine memory cards and thus permanently destroyed.

14. In response to the undersigned’s own CORA requests, Reiner failed to identify any federal or state laws and/or any rules, regulations, or “best practices” promulgated by the Secretary of State requiring her local discretionary “batching” practices – which gratuitously created traceable ballots — and the Secretary of State’s office confirmed that it had promulgated no “best practices” pertaining to the “batching” of voted paper ballots.

15. The combination of Reiner’s blatant dishonesty and subsequent events prompted the undersigned to conclude that Reiner’s linkage demonstration was part of a concerted effort by the Colorado County Clerks Association (“CCCA”) to entirely exempt voted ballots from CORA’s definition of “public records” – thereby rendering those ballots inaccessible to the public and/or press during an election and thereby eliminating the very transparency upon which the integrity of free and fair democratic elections depends.

16. At that time, the CCCA and Reiner were lobbying for the passage of SB12-155 in the Colorado Senate – which would have entirely exempted voted ballots from CORA, but which was then amended to preclude public access to voted ballots under CORA only until after the election was certified, enacted as HB12-1036, and signed into law.

17. Ostensibly, the CCCA’s legislative lobbying effort was a response to a ruling by the Colorado Court of Appeals in Marks v. Koch, Colo.App. No. 10CA1111 (2011), in  which the court reaffirmed that voted ballots were and had long had been election records subject to CORA – despite the CCCA’s disingenuous claim that this was “new law”.

18. Because Mesa County Clerk Reiner was and remains an officer (Vice President) of the CCCA, her active involvement on behalf of the CCCA’s legislative agenda raises issues of potential and/or actual “conflict of interest” — to the extent that the CCCA’s legislative initiative conflicted with the best interests of the taxpayers of Mesa County.

19.   The CCCA is partially funded by public monies – through $1000 in annual dues paid by each of Colorado’s 64 member counties and by event registration fees – but is purportedly not subject to statutory financial disclosure requirements and has refused to disclose any information as to its outside sources of income and resultant expenditures.

20. According to former State Representative Kathleen Curry, the CCCA’s lobbying effort on behalf of HB12-1036 was funded by electronic voting machine vendors.

21. Because the accuracy and reliability of electronic voting equipment can best be verified (or not) by comparing the results reported thereby to the actual intent of the voter as captured on voted paper ballots and/or on retained electronic records of voted ballots, the electronic voting machine industry has an obvious vested interest in insulating their equipment from such scrutiny – particularly while an election is still subject to challenge.

22. Meanwhile, both Mesa County and Jefferson County – both of which utilized electronic voting equipment acquired from Election Systems & Software (“ES&S”), a voting machine vendor with a dubious record – had summarily denied Marks’ CORA requests for anonymous electronic voting records (on grounds that those records could conceivably be linked to the identities of voters) and then both belatedly sought judicial justification for their unlawful action (contrary to CORA’s provision requiring that such judicial justification be sought and obtained before denying a CORA request).

23. On both February 13 and 27, 2012 (and in letters to the Daily Sentinel, copied to Reiner and Mesa County Attorney Lyle Dechant), the undersigned publicly informed the Board of Mesa County Commissioners that Reiner’s legal claims against Marks were baseless, that Marks would be awarded mandatory statutory attorney fees under CORA, that Reiner could readily remedy her dubious local discretionary procedures at no cost to Mesa County taxpayers (as had already been done elsewhere in Colorado), and thus that Reiner was wasting county resources and needlessly exposing Mesa County to liability for Marks’ attorney fees by pursuing litigation (which the undersigned characterized to the Commissioners as a “cat fight” being waged by Reiner against Marks in furtherance of the CCCA’s agenda, and contrary to the best interests of Mesa County taxpayers).

24. Nevertheless, in concert with Jefferson County, Reiner – through Dechant – filed pleadings in her CORA cases against Marks within ten minutes of the pleadings filed by Jefferson County in its cases, in which both asserted virtually identical legal arguments.

25. On April 23, 2012, following a three-day bench trial in Jefferson County (which Reiner, Dechant, and other Mesa County employees attended at taxpayer expense), Judge Randall C. Arp issued a comprehensive and authoritative decision in Case No. 2011-CV-3576 (Exhibit “4”), in which he decisively rejected virtually all of Jefferson County’s (and thus Reiner’s) dubious legal arguments and awarded Marks yet-to-be-determined but statutorily mandatory attorney fees (a ruling which Jefferson County is appealing).

26. Meanwhile, having encountered stubborn resistance from several County Clerks (including Reiner) to any changes in local discretionary procedures which would mitigate their compromise of the “secret ballot” via linkage of voted ballots to voters’ identities,

Marks filed suit in federal court in Denver — naming Reiner as a co-defendant (along with the Secretary of State and five other county clerks) – arguing that defendants were violating both the Colorado and U.S. Constitutions by denying a “secret ballot”.  While that case was dismissed on “standing” grounds, it remains on appeal at the 10th Circuit.

27. Following the Jefferson County decision, the undersigned again publicly urged the Mesa County Commissioners, Reiner, and Dechant to promptly settle both ongoing litigations – because Reiner was needlessly exposing taxpayers to substantial attorney fees in the CORA cases and because the federal case would proceed even without Reiner as a named defendant (and thus at no further expense to Mesa County taxpayers).

28. On June 12, 2012, the undersigned publicly apprised the press and all announced County Commissioner candidates of the true facts of the matter (Exhibit “5”).

29. On December 11, 2012, Reiner settled both the CORA cases and the federal case for $15,000 each (Exhibits “6” and “7”) – having already expended at least $60,000 of taxpayers’ resources and County Attorney staff time “in battling Marks”, according to Reiner’s own estimate, as reported in the Daily Sentinel on that date (Exhibit “8”).

30. Thus, Reiner has expended at least $90,000 of public monies for reasons contrary to her sworn duties and thus in violation of her oath of office as Mesa County Clerk.

Consequently, you – exercising your prosecutorial discretion – and/or a grand jury of local citizens could reasonably and properly conclude that Reiner’s primary purpose in pursuing legally frivolous CORA litigation at taxpayer expense was to purposely conceal and/or avoid disclosing the fact that she had violated both state and federal election laws by having previously destroyed the very electronic ballots later sought by Marks.

While neither settlement agreement contains a clear admission of that obvious fact, you and/or a grand jury can readily infer Reiner’s motivation from the November 28 and 30, 2012, e-mails between Marks’ attorney and Dechant on that point (Exhibit “9”).

Therefore, at a minimum, Reiner appears to have abused her office by committing either first- or second-degree “official misconduct” under C.R.S. § 18-8-404  or -405 .  

Moreover, Reiner also effectively defrauded the public by using our resources to cover-up the fact that she had violated both state and federal election laws by failing to retain electronic ballots (at the cost of a “thumb drive”).  Thus, I also ask that you seek restitution from Reiner for all public expenses incurred in concealment of her personal misconduct – so as to send a clear message to any like-minded public “servants”.  

In evaluating the statutes under which Reiner (and perhaps others) can be properly charged, I also ask you to consider C.R.S. § 1-13-716, “Destroying, removing, or delayed delivery of election records” , and/or C.R.S. § 1-13-716, “Penalty for neglect of duty – destruction of ballots – breaking seal” .

Furthermore, I urge you to also consider the evidence of “pattern” emerging from the conduct of successive Mesa County Clerks and their subordinates.  When Monika Todd sought judicial license to deny Bjrokland’s legitimate CORA request for election records which had already been destroyed, Reiner was Todd’s subordinate in the Mesa County Clerk’s office and may have supervised the destruction of those election records.

Thus, Reiner knew that election records were to be retained – and was familiar with the tactic of seeking judicial license to deny a CORA request in order to conceal the fact that the requested records had been destroyed.  Moreover, both Todd and Reiner argued that disclosure of the requested records could compromise voter anonymity.

Apparently, Todd sought judicial intervention before denying Bjorklund’s CORA request, while Reiner first denied Marks” request, then disingenuously sought judicial intervention after-the fact in disregard of CORA’s plain language.  While Bjorklund did not seek CORA attorney fees (because he did not know that the records requested had been destroyed until the trial of Todd’s own action), Marks did.  However, in both cases, the elected and sworn county officials – Todd and Reiner – both knew that the lawfully requested election records were unavailable because they had already been destroyed, but chose to conceal that fact as long as possible.  Reiner’s deceit cost Mesa County $90,000.

I also suggest that – should you refer these matters to a grand jury – you expand its inquiry to include the 2012 general election.  As widely reported in the press, Reiner first mailed out an unknown number of duplicate ballots – and then bragged that Mesa County had achieved a 95%+ turnout rate of “active” voters.  Those two facts alone are sufficient to justify an inquiry as to the possibility of deliberate election fraud.

Because I have no doubt that you will handle this complaint both responsibly and appropriately, I have not yet effected the wider distribution contemplated below.  Thus, I await your instructions.

In the meantime, thanks in advance for your prompt attention to this matter.

Cordially,

William C. Hugenberg Jr., J.D.

(Street Address Redacted by Konola) Grand Junction, CO  81507

(Phone Number Redacted by Konola) bhugenberg@bresnan.net

Sworn before me this ___ day of December, 2012.

______________________

Notary Public

Exhibits:

“1” Letter from Frank Daniels, Mesa County DA (October 8, 2003)

“2” Letter from Janice Ward to Thomas Bjorklund (yet-to-be retrieved)

“3” Undated Report by Paul Shockley, Grand Junction Free Press (March ?, 2003)

“4” Judicial decision in Jefferson County CORA cases (April 23, 2012)

“5” E-mailed letter to Free Press, BOCC, and BOCC candidates (June 12, 2012)

“6” Settlement Agreement in Cases 11CV4530 and 11CV4575 (December 11, 2012)

“7” Settlement Agreement in 10th Circuit Case No:  12-1414 (December 11, 2012)

“8” Report by Charles Ashby in Grand Junction Daily Sentinel (December 11, 2012)

“9” E-mail exchange between Mesa County Attorney and Marks’ Attorney (November 28 and 30, 2012)

cc (by e-mail, w/o exhibits):

Lyle Dechant, Esquire

Jay Seaton, Grand Junction Daily Sentinel

Tracy Dvorak, Grand Junction Free Press

Marilyn Marks, Citizen Center

Thomas Bjorklund

Suzanne Staiert, Colorado Secretary of State’s Office

7 Community Comments, Facebook Comments

  1. Gray in Mountains says:

    could be some serious misbehavior even though it would not have likely been necessary to achieve the electoral results desired. Was something closely decided?

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