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| 7/22/2010 11:59:00 AM | Email this article • Print this article | DA won't file criminal charges on Hartsel Fire election
Insufficient evidence to prove beyond reasonable doubt, says LeDoux
After an investigation that produced a 20-page memo, District Attorney Thom LeDoux sent a letter with that memo stating that he would not be filing criminal charges related to complaints about the conduct of the Hartsel Fire Protection District election in May.
LeDoux said in the letter that he found insufficient evidence to prove beyond a reasonable doubt that there was a criminal act or that any acts were performed with the necessary criminal intent. (See the letter and memo at theflume.com, LeDoux).
"Furthermore, I find that any technical violations of the applicable election laws, rules and regulations were insufficient to justify the prosecution of a criminal case. It should be noted that C.R.S. 1-1-103(3) provides that "substantial compliance" with the election laws is sufficient, and as a result, such compliance precludes a finding of criminal behavior with respect to the election laws."
However, he said, substantial compliance "should not in any way serve as the prospective goal for those conducting elections."
"To that end, I would encourage the Hartsel Fire Protection District to continue to work to perfect the practices used to conduct future elections," said LeDoux. Along those lines, he said, he "would encourage the District to review the possibility of holding the elections in a location other than the fire station itself."
LeDoux also addressed the matter of the complaints being filed in the first place.
"Finally I would like to thank those parties who took the time to monitor the elections and raise the issues of their concern and to encourage them to continue to fulfill that vital role in the process of conducting proper elections."
Cleta Grey, the administrative assistant for the district who was named the designated election official, had a quite different view of the complaints.
"Connie Gray and Ernestine Castro filed criminal complaints and made false accusations against their neighbors.
"Connie and Ernestine have accomplished nothing other than making enemies of their neighbors and costing the taxpayers of this District a substantial amount of money in investigative and legal fees with both the District Attorney's Office and the Hartsel Fire District. But even [worse] than that is the fact that they accused, and tried to discredit, the four judges who served on Election Day. I know those judges personally and I could not have had more reputable, honest people serving as my judges for that election," she said in an e-mail.
The judges, in a letter sent by Gladys "Penny" Eldridge that was approved by the other judges - Rod Dornan, Carol Moeder, and Nancy Kreiling - presented their points of view.
"Our conclusion is that the complainants may feel they were acting responsibly and dutifully and were justified in contacting the Colorado Secretary of State Office to file their complaints, but we feel that they overreacted and could have approached the judges or the designated election official to clarify and settle some of their complaints and allegations or even engaged a third party as a mediator to discuss things and precluded the costly investigation which resulted. Some of the charges filed against the judges were extremely petty and others filed because the watchers/complainants were unfamiliar with what the judges' required duties were, their procedures and how they were being performed. One illustration of such is that one watcher wrongly accused me of compromising the secrecy of mail-in ballots whereas if she really knew the procedure she would have known it was the approved and proper method of counting those ballots. The watchers even conflicted with each others observations."
"All four of the judges involved in the election that day are seasoned judges with years of experience in general, primary and special district elections. None of us had any direct interest in the outcome of the election and all conducted ourselves in appropriate fashion commensurate with the duties we were sworn to uphold for the election. We feel our characters, individually and collectively, were impugned. We resent such accusations the complainants made filing their complaints against us and certainly feel no criminal acts were intended or committed. We would graciously accept an apology if it were offered."
When told about the judges' intimation about an apology, Grey initially said in an e-mail:
"I will not apologize for doing what I think is right. Once again, just because criminal charges are not being filed at this time (see Tom's Memo) doesn't mean that they did it right. On the contrary, they did it wrong, but the DA doesn't believe it was done wrong with criminal intent. Not my call."
Later, Gray said: "Maybe when they apologize for the way I was treated in the September 2009 meeting I might consider apologizing to them ... Why do they keep saying I should apologize when their actions are more reprehensible than mine have [ever] been?"
The complaints
As noted in the June 11 Flume, Gray filed a number of complaints, including inappropriate discussions between volunteer Andy Grey and the judges; the locking of the ballot box earlier than appropriate, which prevented the watchers from verifying it was empty; inappropriate timing in the announcing of the voters' names; lack of a secure voting area; and other matters
In addition, poll watcher Ernestine Castro filed a complaint stating that Gladys Eldridge, acting as a judge, "unfolded and viewed many of the blue ballots" and she thought voter secrecy may have been compromised.
Castro could not be reached for comment about the LeDoux letter and memo.
In the memo, investigator Betty Royse concluded that the voter's identity had been separated from the ballot by the time Eldridge looked at it so that "Eldridge would know how the ballot was voted but not the voter's identity." (See Page 18 of the memo.)
Royse also said that the ballot box should be locked at 6:55 a.m. The main judge used a clock on a computer to time the polling hours, and it was not known whether Connie Gray's watch was synchronized with the computer clock, she said.
Royse also said that the information on Andy Grey's computer was not an electronic "pollbook," as stated in Connie Gray's complaint, but rather a list of 14,000 property owners within the district. (See Page 11 of the memo.)
In a follow-up e-mail to The Flume, LeDoux said that a pollbook is defined in statute as a list of eligible electors with one column headed "names of voters" and one column headed "number on ballot."
As for the complaint about Andy Grey, as a poll watcher, talking with judges and going to the judges table to help them with his computer, on the one hand Royse cited state statute that the "voting area" is "within six feet of the voting machines, voting equipment or voting booths and the ballot box," and she concluded that the judges table was not within that six feet and so would not be off limits to poll watchers. (See Page 13 of the memo.)
However, she also noted that Rule 8.8 of the Colorado Secretary of State Election Rules states that "watchers may not be allowed to interact with election officials or election judges." (See Page 15 of the memo.) That would seem to indicate Andy Grey should not have been interacting with judges.
On the same page she states that Michael Hagihara of the Secretary of State's Election Division said the judges table is considered a part of the immediate voting area.
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