The ECHO-Association – GRAMA Appeal to the Chief Administrative Officer | Emigration Canyon Home Owners Association

From: The ECHO-Association <m.tracy@echo-association.com>
Subject: Appeal to Administrative Officer – Email Correspondence of Lead Contamination and Payment of Private Legal Expenses of Simplifi Defendants with Pubic Funds
Date: October 6, 2020 at 10:57:42 AM PDT
To: mike@ecid.org
Cc: dave@ECID.org, brent@ECID.org, Eric Hawkes <eric@ecid.org>, Jennifer Hawkes <hawkes@ecmetro.org>, Paul Brown <paulhandybrown@gmail.com>

Dear EID Trustee Chairman Michael Scott Hughes,

The email correspondence below was received last week from Utah Attorney Jeremy R. Cook (“Utah Attorney Cook”) of the Salt Lake City law firm Cohne Kinghorn P.C regarding our request dated September 18, 2020 under the Utah Government Records Access and Management Act (“GRAMA”) for email correspondence related to lead contamination and payment of the private legal expenses of Deputy Mayor Jennifer Hawkes and EID General and Financial Manager Eric Hawkes of the Simplifi Company (“Simplifi Defendants”) from public funds entrusted to Emigration Improvement District trustees Michael Scott Hughes, David Bradford and Brent Tippets (“EID Trustees” and “EID” aka Emigration Canyon Improvement District aka ECID).

We hereby appeal denial of the GRAMA request to the Chief Administrative Officer for the purpose of expediting further judicial proceedings.

Please note the following for the purpose of this appeal:

Name: Mark Christopher Tracy dba Emigration Canyon Home Owners Association (“The ECHO-Association”)

Mailing Address: 1160 E. Buchnel Dr., Sandy, Utah 84094

Daytime Phone Number: 929-208-6010

Relief Sought / Grounds for Appeal: We have reason to believe that EID Trustees may be concealing extensive lead contamination of water system no 18143 operated by the Simplifi Defendants to include the misuse of public funds for the private legal defense of the same in pending state and federal litigation.

Under Utah Code Ann. sec. 63G-2-201(1)(a) “a person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours”.

While “extraordinary circumstances” may be cited as a reason for delaying access to public records as noted below by Utah Attorney Cook, these provisions clearly do not apply to the present request.

Utah Code Ann. sec. 63G-2-204 provides:

(6) The following circumstances constitute “extraordinary circumstances” that allow a governmental entity to delay approval or denial by an additional period of time as specified in Subsection (7) if the governmental entity determines that due to the extraordinary circumstances it cannot respond within the time limits provided in Subsection (4):
(a) another governmental entity is using the record, in which case the originating governmental entity shall promptly request that the governmental entity currently in possession return the record;
(b) another governmental entity is using the record as part of an audit, and returning the record before the completion of the audit would impair the conduct of the audit;
(c)
(i) the request is for a voluminous quantity of records or a record series containing a substantial number of records; or
(ii) the requester seeks a substantial number of records or records series in requests filed within five working days of each other;
(d) the governmental entity is currently processing a large number of records requests;
(e) the request requires the governmental entity to review a large number of records to locate the records requested;
(f) the decision to release a record involves legal issues that require the governmental entity to seek legal counsel for the analysis of statutes, rules, ordinances, regulations, or case law;
(g) segregating information that the requester is entitled to inspect from information that the requester is not entitled to inspect requires extensive editing; or
(h) segregating information that the requester is entitled to inspect from information that the requester is not entitled to inspect requires computer programming.

It is clear that a “pending motion for attorney fees” filed by Simplifi Defendants in separate and unrelated litigation before the Utah State Third District Court is not a valid “extraordinary circumstance” and is completely unrelated to the current request for public documents.

Next, we note that Utah Attorney Cook has provided legal services to the Emigration Oaks President and Emigration Canyon Community Council Member Paul Brown affirmed to the Utah federal district court to have been paid with public funds administered by Simplifi Defendants for EID (see “Misuse of Public Funds Administered by Simplifi Company for the Private Legal Services of Emigration Oaks President and Emigration Canyon Community Council Member Paul Brown” available at https://echo-association.com/?page_id=6117).

We therefore have reason to believe that EID Trustees Michael Scott Hughes, David Bradford and Brent Tippets are aware that Utah Attorney Cook is providing legal services to private third parties at taxpayer expense and thereby requiring the present request under GRAMA.

Lastly, in regard to lead contamination of water system 18143 operated by Simplifi Defendants for EID, Utah Administrative Code R-309-105-17 provides:

(2) Lead and copper recordkeeping requirements.

(a) Any water system subject to the requirements of R309-210-6 shall retain on its premises original records of all sampling data and analyses, reports, surveys, letters, evaluations, schedules, Director determinations, and any other information required by R309-210-6 (emphasis added).

(b) Each water system shall retain the records required by this section for no fewer than 12 years (emphasis added).

While Simplifi Defendants are required to maintain lead contamination laboratory test result “on its premises” as pending with the Utah Court of Appeals, we note that EID Trustees maintain access and control of email correspondence.

Utah Code Ann. 63G-2-801 provides:

(1)(a) A public employee or other person who has lawful access to any private, controlled, or protected record under this chapter, and who intentionally discloses, provides a copy of, or improperly uses a private, controlled, or protected record knowing that the disclosure or use is prohibited under this chapter, is, except as provided in Subsection 53-5-708(1)(c), guilty of a class B misdemeanor (emphasis added).

We await the decision of the Chief Administrative Officer.

Kind Regards,

Mark Christopher Tracy
Emigration Canyon Home Owners Association

From: Jeremy Cook <jcook@ck.law>
Date: October 1, 2020 at 12:33:06 PM PDT
To: The ECHO-Association <m.tracy@echo-association.com>
Subject: EXPEDITED Request for Government Records (“GRAMA”) – Email Correspondence of Lead Contamination and Payment of Legal Expenses of the Simplifi Company

Mark,

As you are aware, this firm represents the Emigration Improvement District, and I am responding to the attached GRAMA requests.

With respect to your requests, EID responds as follows:

Request: “ALL LEGAL INVOICES SUBMITTED FOR DEMAND OF PAYMENT FROM THE SALT LAKE CITY LAW FIRM COHNE KINGHORN P.C. PARSONS KINGHORN AND HARRIS P.C, AND GERALD H. KINGHORN SINCE AUGUST 1, 1998.”

Response: The documents are classified as protected in accordance with Utah Code Ann. 63G-2-305(17), (18) or 23(b), which includes the following:

(17) records that are subject to the attorney client privilege;

(18) records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding; and

(23) records concerning a governmental entity’s strategy about: (b) imminent or pending litigation.

Accordingly, your request for the records is denied.

Request: “All email correspondence between EID General Manager Eric Hawkes and/or Deputy Emigration Canyon Mayor Jennifer Hawkes of the Simplifi Company with aforementioned EID trustees regarding use of public funds for the private legal costs of the Simplifi Company, Eric and Jennifer Hawkes.”

Response: The documents are classified as protected in accordance with Utah Code Ann. 63G-2-305(17), (18) or 23(b), which includes the following:

(17) records that are subject to the attorney client privilege;

(23) records concerning a governmental entity’s strategy about: (b) imminent or pending litigation.

Accordingly, your request for the records is denied.

Request: “All email correspondence between EID General Manager Eric Hawkes and/or Deputy Emigration Canyon Mayor Jennifer Hawkes of the Simplifi Company with EID trustees Michael Scott Hughes, David Bradford, Brent Tippets and Dr. Mark Stevens regarding lead contamination of water system 18143 since January 1, 2013.”

Response: This is the third GRAMA request you have submitted with respect to lead testing results. In addition, despite repeated notices from EID that GRAMA requests should be submitted to EID and not to Eric Hawkes, Jennifer Hawkes, or Simplifi Company, you ignored EID’s notices and continued to submit GRAMA requests to those individuals, prompting EID, Eric Hawkes, Jennifer Hawkes, or Simplifi Company to waste considerable time and resources responding to those requests. As you are aware, on September 16, Judge Faust entered the attached Memorandum Decision and Order granting respondents motion to dismiss. Respondents subsequently filed a request for attorneys’ fees, which is currently pending.

Based on the foregoing, and in accordance with Utah Code Ann. 63G-2-204(6), extraordinary circumstances exist for EID not to respond to the request until a ruling on the pending motion for attorney’s fees.

Accordingly, your request is delayed pending resolution of current attorneys fee motion.

You have the right to appeal the decision within thirty days, as provided in Section 63G-2-401, to EID Board Chair Michael Hughes at: mike@ecid.org.

Thanks,

Jeremy

Jeremy R. Cook

111 East Broadway, 11th Floor
Salt Lake City, Utah 84111

Phone: 801.363.4300 (after hours ext. 133) | Cell: 801.580.8759