- Last February, I asked “Who’s the Boss in Utah’s Bears Ears Country?” The following six-part essay, which I've been posting in installments, is an attempt to partially answer that question after a year of watching events unfold there. This is part 3.
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| Kelly Pehrson, former county administrator, testified before the State Records Committee in Salt Lake City in November. County Commission Chair Kenneth Maryboy, below, alleged publicly that Pehrson was insubordinate. Pehrson filed a GRAMA request seeking county records that would document those allegations. Because two searches ordered by the Committee turned up nothing, a reasonable conclusion at this point is that Maryboy just made up the whole thing. (Bill Keshlear) |
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Part 2: The power of environmental nonprofits. It’s hard to overestimate the influence of Utah Diné Bikéyah, the tribal-affiliated nonprofit founded and run by Grayeyes and Maryboy until they took office. They’ve succeeded as leaders in attempts to create Bears Ears National Monument in a way that took results of a presidential election and proclamation to derail.
TODAY
Part 3: Public-records stonewalling. Numerous requests for public records filed under GRAMA were generated in 2019 due in part to the climate created by the new commissioners’ evasiveness and open hostility toward many constituents and those constituents’ forceful, if sometimes rowdy, responses. The county (Grayeyes and Maryboy) was ordered to produce records in three cases.
Part 4: Gutter rhetoric. Unfiltered comments of public figures were part and parcel of 2019’s hard-edged politicking in San Juan County. It was on full display in the weeks and months leading up to November’s special election that asked voters whether they wanted to form a committee to study possible changes in county government.
Part 5: A defeat for good government. A full-court press of a campaign mounted by the San Juan County Democratic Party, its allies and prominent Navajo Nation politicians defeated an ostensibly non-partisan effort to change the way the county works. Results of November’s special election hinged on rhetoric of retribution and the politics of payback. An alternative story line — charting a path toward better democracy — was a non-starter.
Part 6: But can they fix the roads? To a certain extent the new commissioners’ relationship with officials of the Navajo Nation will determine their success in office. They’ve played an insider’s game of reservation politics for a long time, but so far they’ve been unable to leverage that experience into discernible benefits for county residents.
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Part 3: Public-records stonewalling
By Bill Keshlear
In 2019, newly elected county commissioners Willie Grayeyes and Kenneth Maryboy dodged orders of the State Records Committee in at least three cases related to requests for public records under Utah’s Government Records Access and Management Act, or GRAMA.
As a petitioner in one of those cases and writer researching information for a possible book on Bears Ears and articles for the Canyon Country Zephyr, I wanted to take a look at documents that would outline policy development since Grayeyes and Maryboy took over and before. What, if anything, has been the contribution of the extensive national network of consultants, lawyers, lobbyists, fundraisers, environmental and Native American activists and tribal politicians the two have cultivated over sometimes controversial careers as elected officials and leaders of tribal government programs?
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| Members of the State Records Committee: from left, Don Hartley, Tom Haraldsen, Holly Richardson, David Fleming, Cindi Mansell, Patricia Smith-Mansfield and Kenneth Williams. (Utah Division of Archives and Records Service) |
After being denied accesss to the records through county channels, I sought voluntary mediation as a good-faith attempt to avoid the hassle of the next step: appealing the case to the Committee. Despite my insistence on negotiating directly with Maryboy and Grayeyes without the presence of their lawyers, the two commissioners were no-shows at an April 11 meeting scheduled for their convenience – a Utah Association of Counties convention held in Provo. Their lawyer, David Irvine, showed up instead. They never offered an explanation for their absence.
A letter dated April 4 sent by Steven Boos, the personal attorney of Maryboy and Grayeyes, to mediation attendees San Juan County Attorney Kendall Laws, County Administrator Kelly Pehrson and County Clerk John David Nielson suggested the mediation would go nowhere.
“I am writing this letter to advise you that my communications with my clients and my fellow attorneys are not subject to disclosure under the GRAMA. I have advised my clients to not provide such private, privileged correspondence to the County, nor will I provide copies of such correspondence.”
I was the only one in the room without a chance to see the letter before mediation. I felt sandbagged.
Although I took time off from my day job to prepare for a dive into the Byzantine world of governmental process and drive down to Provo, the trip wasn’t a complete waste of time and money. It gave me a bit of insight into the absentee governing style of Maryboy and Grayeyes.
During proceedings leading to the Committee’s ruling, Boos advised county officials they might have grounds to counter-sue petitioners (community activist Kim Henderson and I) for harassment if they took the case to state district court.
I considered it bald-faced intimidation to shield the commissioners from public scrutiny. Another hint at the kind of game the new commissioners played. Boos was a guy who had no official ties to the county. He injected himself into the fray, firing a lawyerly shot across my bow, presumably with the consent of clients Maryboy and Grayeyes. But who knows? Nothing indicates letters written by Boos to the new commissioners before they took office and shortly after were even read by them.
The hearing before the Committee went well for myself and open records advocates; not so well for Maryboy, Grayeyes, their team of private lawyers and possibly other allies who prefer to create county policy secretly.
- The committee agreed with my definition of what’s accessible as a “public record.”
- It ordered the county to allow me to inspect records the county determined were not private communication between the commissioners and their attorneys.
- It advised the county that it had two options: comply with the order or appeal. If it failed to do one or the other, the county could be fined $500 per day.
- It cited a GRAMA provision that said a public employee who intentionally refuses to release a record when ordered to do so by the committee is guilty of a class B misdemeanor.
Here’s an overview of the case.
NUMEROUS REQUESTS FOR COUNTY RECORDS filed under GRAMA were generated in 2019 due in part to the climate created by the new commissioners’ evasiveness and open hostility toward many constituents and those constituents’ forceful, if sometimes rowdy, responses.
One of those wanted to find out whether Boos was playing the role of puppet master, using text messages instead of strings at commission meetings. The State Records Committee granted a hearing into the matter and ruled in favor of petitioner Henderson.
Another case reflected a management style of the new commissioners that took a toll on day-in, day-out workings of government. Kelly Pehrson, county administrator, left effective April 26 to take a high-level state job in Salt Lake City.
During his exit, Pehrson was slimed real good and fought to clear his name through the summer and fall. The Committee sided with him in the third GRAMA-related case in which Boos’ advice played a role and lost.
“Since I have been administrator, I have tried very hard to have these commissioners work with staff, but they have refused. Somehow they have been coached to not discuss anything with staff,” Pehrson told the Deseret News.
Pehrson’s effort was based on a May 1 news article written by Zak Podmore under the supervision of political editor Dan Harrie and published in The Salt Lake Tribune, as well as a press release written by James Adakai, chair of the San Juan County Democratic Party:
- Maryboy said that he had been “emailing (Pehrson), and (Pehrson) didn’t do what (Pehrson) was being told.”
- Boos echoed Maryboy’s assessment: “And the chairman (of the county commission Maryboy) has sent a number of memos asking Mr. Pehrson to provide updates (on the assignments). Those reports weren’t provided.”
- A press release said, “Mr. Pehrson had not been willing to take direction from the new County Commission and execute its priorities, and his abrupt resignation was not earth-shaking news."
- In the same press release, Maryboy says: “If Pehrson had not resigned we would have taken disciplinary action.”
Pehrson wanted to see records of the memos, letters, emails and text messages that documented his alleged insubordination. He believed they didn’t exist, and the county’s GRAMA officer who handled Pehrson’s request, David Everitt, interim administrator, found nothing.
No memos of the kind Boos alluded to. No complaints or accounts of disciplinary action or pending disciplinary action filed with Walter Bird, San Juan human relations director, that could’ve preceded Pehrson’s firing. Nothing.
The Committee was unconvinced that the county, represented by Alex Goble, deputy San Juan County Attorney, tried hard enough to find the documents.
“The Committee believes that an independent search of all accounts including specifically the Commissioner’s and HR director’s e-mail accounts by the county’s Information Technology specialists, may disclose more responsive records. Therefore, Respondent is directed to do another search to determine if records responsive to Mr. Pehrson’s request exist, and provide to Mr. Pehrson also such records that are considered public records.”
Pehrson said the second search yielded a few more emails but nothing from Maryboy giving him instructions related to his job as county administrator.
A reasonable conclusion at this point is that Maryboy – aided by Boos, Adakai and possibly others – just made up the whole thing.
No reporter, including Podmore, or editor from the Tribune appeared at Pehrson’s November hearing to gather information for a follow-up to their story that published inuendo and tarnished the former county administrator’s reputation. So far, the Tribune has not corrected the record. Friends and acquaintances of Pehrson rallied to his defense, but the stain remains.
POST SCRIPT: Podmore wrote the following on his Twitter account eight days after my report on the results of the June 2018 San Juan County Democratic Party primary appeared in the Canyon Country Zephyr. The primary paved the way for Maryboy and Grayeyes to become commissioners.
Podmore, who went on to become The Salt Lake Tribune’s correspondent based in Bluff, Utah, implied that neither the Canyon Country Zephyr (a publication that has reported on politics and culture in southeastern Utah for over 30 years) or myself (a former editor at the publication he currently works for, the Tribune) had any business reporting on county government. We were outsiders to him.
Ironically, my report raised concerns over the possibility that groups outside of the county (with much more money than I’ll have until Powerball winnings come rolling in) and played significant roles in the rise of Maryboy and Grayeyes to political prominence were in a position to influence county policy. They were all “outsiders” except for Friends of Cedar Mesa in Bluff. The concerns formed the basis of my successful GRAMA request.
I asked whether “the policies of the new pro-Bears Ears county commission will align – to varying degrees – with the goals of a grand alliance: Utah Diné Bikéyah, Round River Conservation Studies, Friends of Cedar Mesa, the Conservation Lands Foundation, the Grand Canyon Trust, Southern Utah Wilderness Alliance, Earth Justice, Natural Resources Defense Council, The Nature Conservancy, William and Flora Hewlett Foundation, David and Lucile Packard Foundation, Wyss Foundation, Wilburforce Foundation, Pew Charitable Trusts, Leonardo Di Caprio Foundation and others. Several of the organizations are worth billions.
“Staff, board members, donors and handsomely paid lobbyists who cannot even vote in San Juan County – political pros with easy access to the new commissioners – will phone in policy preferences from Salt Lake City, Denver, Flagstaff, Arizona, Durango, Colorado, Moab and points beyond.”
“After seven or eight years of cushy trips to Washington, D.C., Salt Lake City and god knows where else funded directly or indirectly by Utah Diné Bikéyah and its allies, it’s hard to imagine Maryboy and Grayeyes declining the goodies to dull the unethical edge of their service to the San Juan County taxpayers, much less refusing their calls. Perhaps they will. Meanwhile, their continuing role as hyper-partisan activists on the board of UDB at the very least is a bald-faced conflict of interest that should anger every San Juan County voter.”
Maryboy and Grayeyes resigned their Utah Diné Bikéyah posts when they took office, but the nonprofit continues to exert extraordinary influence over politics in the county.
DOZENS OF REQUESTS FOR PUBLIC RECORDS under GRAMA are submitted each year to all levels of Utah government for all kinds of reasons. Appeals are sent to the State Records Committee, which decides whether a hearing is warranted. The Committee grants relatively few.
However, several requests related to governance of San Juan County since Maryboy and Grayeyes took over were successful: Henderson’s, Pehrson’s and mine. They unsuccessfully flowed through the GRAMA pipeline in San Juan County, then were appealed to the Committee.
GRAMA presumes “a constitutional right of access concerning conduct of the public’s business” and “promotes the public’s right of easy and reasonable access to unrestricted public records and favors public access when … countervailing interests are of equal weight.” The Legislature envisioned it as one of several ways to keep public officials accountable to folks they’re supposed to serve.
The Committee’s ruling in my case (as well as Pehrson’s and Henderson’s) put the onus on the county. It had to respond within 30 days to the order “stating they’ve complied with it or they will challenge it. If they don’t do either one, we can respond,” according to Patricia Smith-Mansfield, who was longtime director of Utah State Archives and Records Service until 2018 and the person whose expertise was sought by others on the committee.
However, the county’s response exposed a glaring loophole in GRAMA that Committee members and their chief counsel, Utah Assistant Attorney General Paul Tonks, acknowledged: The Legislature has not granted the Committee authority to ensure compliance with its orders. The county, or other governmental entities, can respond virtually any way it chooses, and the only recourse for a petitioner would be to challenge that response in state district court – which could take years and cost thousands of dollars.
To pursue my case further, I’d have to shoulder the legal and financial burden of enforcing the State Records Committee's order.
Maryboy and Grayeyes chose to ignore the Committee’s order in my case. After six months of trying, I never got the documents I sought. The county’s formal “Notice of Compliance” (written by Laws) said “no additional records are available” even though letters and emails between Maryboy, Boos and the county attorney indicate “conversations” and “written communications” did, in fact, take place, according to their own correspondence.
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| In Kenneth Maryboy's formal response to GRAMA investigator County Attorney Kendall Laws and the State Records Committee, at top, the commissioner disregarded the Committee's ruling that he does not have the authority to determine what among his records constitutes a "public record." An earlier letter written by Steven Boos contradicted Maryboy, who wrote that he has no material that related to county business; Boos wrote that there were "conversations" and "written communications." |
San Juan County has no process to archive records belonging to the public, a fact that drew the ire of State Records Committee members. But they’re members of a relatively toothless entity appointed by the governor. Journalists, historians, academic researchers, librarians, archivists of government records and civically minded Utahns – pretty much anyone seeking historical documentation or trying to evaluate their public servants’ job performance – are just out of luck in San Juan County.
Utah’s GRAMA allows elected officials such as Maryboy and Grayeyes to wield a good old-fashion Bronx Cheer with impunity.
And that’s what they did.
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Related essays published in the Canyon Country Zephyr
Rhetoric of retribution, the politics of payback (December 2019). https://www.canyoncountryzephyr.com/2019/12/01/the-rhetoric-of-retribution-the-politics-of-payback-by-bill-keshlear/
A take-no-prisoners style of politics in San Juan County (October 2019). https://www.canyoncountryzephyr.com/2019/09/30/a-take-no-prisoners-style-of-politics-in-san-juan-county-by-bill-keshlear/
My excellent adventure into the heart of Gramaland (June 2019). https://www.canyoncountryzephyr.com/2019/06/02/my-excellent-adventure-deep-into-the-heart-of-gramaland-by-bill-keshlear/
A rough transfer of power (June 2019). https://www.canyoncountryzephyr.com/2019/06/02/be-it-resolved-five-months-in-a-rough-transfer-of-power-for-san-juan-county-by-bill-keshlear/
Meet the new boss, same as the old boss (February 2019). https://www.canyoncountryzephyr.com/2019/02/03/meet-the-new-boss-same-as-the-old-boss-the-san-juan-county-saga-continues-by-bill-keshlear/
Whose county is this anyway (August 2018)? https://www.canyoncountryzephyr.com/2018/08/01/whose-county-is-this-anyway-bears-ears-activist-wins-squeaker-for-sjco-commissioner-district-3-what-now-by-bill-keshlear/