Performance audit of San Juan County Commission published, identifies several “questionable actions”

By David Boyle
News Director
The office of the Utah Legislative Auditor General published and presented their performance audit of the San Juan County Commission at a meeting of legislative leaders on April 12.
Report findings found “some actions by former San Juan County Commissioners are questionable,” with four recommendations including that the county commission pass ordinances that go beyond current state statutes in regards to compliance with the Open and Public Meetings Act (OPMA) and disclosure of conflicts of interest.
The report conclusion reads: “Based on our combined experience of auditing a wide variety of public entities, the actions by the two county commissioners are unique in their disregard for transparency in the handling of some of their business.
“We believe the issues we identified warrant additional measures by the county in the future to demonstrate transparency to the citizens of the county, to restore trust, to protect county officers and to ensure that commission business is open and sufficiently transparent.”
While the report labeled former county commissioner actions as questionable, it did not find any out-right violations of state statute.
However, current members of the San Juan County Commission asked for further investigation, with charges brought against the former commissioners if evidence of OPMA violations were found.
The report was presented to the state legislative audit committee by audit manager Jesse Martinson of the Office of the Legislative Auditor General, along with audit supervisor August Lehman.
While the audit did not name the involved parties, it was drawn in large part from the review of hundreds of emails of former County Commissioner Willie Grayeyes which were obtained by former County Attorney Kendall Laws via the Government Records Access and Management Act (GRAMA).
The audit investigation was aimed at communications with former County Commissioner Kenneth Maryboy and their private counsel Steve Boos.
Lehman shared “We found that two of the three San Juan County Commissioners frequently met privately with their private council on multiple occasions to discuss commission agendas prior to commission meetings.
“We also found that the purpose of those meetings was to make sure they were on the same page regarding commission agendas.”
The audit findings related to the emails and meetings were “unconventional observance of Open Public Meetings Act which increased the potential risk of violating statute.”
Lehman said that the commissioners had received training on OPMA, and had been warned by the former county attorney that they may be violating the act. However the audit could not prove that the meetings were violations of OPMA.
Lehman writes, “In OPMA itself, when just two (members) make a quorum there’s more stringent requirements that they have to meet. One is they have to make formal actions, so that’s not defined, it’s gray.”
Lehman says the Attorney General’s office and members of the legislative research felt while the communications would not qualify as a violation of OPMA, they felt it did break the spirit of the law.
In order to address the finding of increased potential risk of violating OPMA, the report recommended the San Juan County Commission pass an ordinance that details policies and procedures governing open meetings and goes beyond state statute to expressly forbid a quorum of commissioners to meet and discuss any commission business without first making a public notice of the meeting.
Another finding from the audit is that “the use of private counsel instead of the County Attorney decreased transparency of the Commission’s work.”
The report found that the use of a private attorney conducting county business lacked transparency and led to concerns that it may have contributed to an undue influence.
Among the findings are that the commissioners accepted thousands of dollars in pro bono legal services. In addition, they found that the private counsel sought payments from local special interest groups for legal services given to commissioners.
The audit could not prove that payments were actually made. The parties involved have denied that payments were made.
The audit also reported that a commissioner submitted a resolution for the county to hire the private counsel from whom he was receiving pro bono services and due to those concerns, the audits opinion is that the commissioners may have placed themselves in a position to be unduly influenced by their private counsel.
The report recommends the commission pass three different ordinances to address the finding.
One recommended ordinance would require commissioners to complete a yearly individual disclosure form that lists potential conflicts of interest and acknowledges the completion of annual training on OPMA, the County Officers and Employees Disclosure Act, the Utah Public Officers’ and Employees’ Ethics Act, and the Government Records Access and Management Act.
Another recommended ordinance would require the disclosure of potential conflicts of interests at each commission meeting that is open to the public.
A final recommended ordinance would delineate the ethical behavior expected of county employees by expanding on state statute and requiring the disclosure of any pro bono legal services in relation to commission and county business.
The report was presented to the legislative audit subcommittee. That subcommittee is made up of the President of the Utah Senate and Speaker of the Utah House, as well as the House majority and minority leaders and Senate majority and minority leaders.
Members of the committee asked questions and provided comments on the report. Majority House Leader, Representative Mike Schultz asked questions regarding the compliance with OPMA.
“I think especially when you are serving the public and representing the public you need to be cautious on the approach that you take,” said Schultz.
“So whether or not we have the law in place or we don’t, it’s certainly clear the intent of the law and just because they found a loophole around the law doesn’t make it right.”
House Minority Leader Rep Angela Romero said she found the findings a bit disturbing but added that understanding the audit requires additional context.
“We have to understand the culture of San Juan and the things that have happened in San Juan and the mistrust from communities of color, specifically our Native American community,” said Romero.
“...I think it’s fair when I’m reading this, but there’s a reason why maybe this dysfunction is happening and we can’t just put it on these two commissioners because we have to look at the overall institution and structure of San Juan.”
Also speaking at the meeting were current members of the San Juan County Commission. Newly elected County Commissioner Jamie Harvey said the commission is unified in diversity and working with the people.
“I know that there had been a lot of dissension as we had come into the county government,” said Harvey.
“We are working together to bring back the confidence and trust in our county. I am doing my best to go out into my community to be transparent in my language to explain what has happened and to prevent and assure the community that I serve that this doesn’t happen again.”
Members of the commission also presented a response letter to the report, thanking the committee for the audit and agreeing to follow the state recommendations.
In addition, the San Juan County Commission letter suggests that the former county commissioners, “on at the least four occasions” were not unconventional as described in the report but rather “routine and deliberate and a clear violation of OPMA”.
The letter recommends that the actions be further investigated and if there is evidence found, file charges and enforce OPMA violations.
Related to the finding of use of pro bono private counsel, the San Juan County Commission letter recommended an investigation of the “attorney’s actions for violations of the Utah Rules of Professional Conduct.”
The letter from the current Commission concluded by recommending the legislature strengthen Utah Code for OPMA, adding “The audit appears to suggest that because of the actions of [Commissioner Maryboy] and [Commissioner Grayeyes] violating State Code and County Policies, without recourse, allows future Commissioners to act in these same manners without any threat of penalty.
“This only continues to hurt and compounds the amount of distrust that our citizens have in our elected leaders here in San Juan County and Utah as a whole.”
The audit report was completed six months after it was ordered in November of 2022 by President of the Utah State Senate Stuart Adams and Speaker of the Utah House of Representatives Brad Wilson.
While the original performance audit also named Grand County, Martinson reports that the documentation, compared to San Juan County, is quite a bit less.
“The risk of an issue was whether or not either of these counties violated OPMA,” said Martinson. “As far as we could determine with Grand County, we were unable to detect there was any risk of that.”