Subject: Appeal to the Utah State Records Committee – Ref: LEGAL INVOICES OF THE SLC LAW FIRM COHNE KINGHORN P.C
Date: November 3, 2020
To: SRCsecretary@utah.gov
Cc: Jennifer Hawkes <hawkes@ecmetro.org>, Eric Hawkes <eric@ecid.org>, mike@ecid.org, “brent@ecid.org” <brent@ecid.org>, “dave@ecid.org” <dave@ecid.org>

Rebekkah Shaw
SRC Executive Secretary
346 S. Rio Grande
Salt Lake City, UT 84101-1106
Phone: 801-531-3851
Fax: 801-531-3867
Email: SRCsecretary@utah.gov

Dear Ms. Shaw,

We hereby appeal the “affirmed denial” of the Chief Administrative Officer of Emigration Improvement District (“EID” aka Emigration Canyon Improvement District aka ECID) under Utah Code Ann. 63G-2-403 regarding the failed disclosure of legal invoices of the Salt Lake City law firm Cohen Kinghorn P.C. required for the payment of public funds administered by the Simplifi Company (“Simplifi”) through Emigration Canyon Deputy Mayor Jennifer Hawkes and EID Operations and Financial Manager Eric Hawkes (“Mrs. and Mr. Hawkes”).

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

Date of GRAMA Request to Certified Public Records Officer (Simplifi): September 17, 2020 (see https://echo-association.com/?page_id=7583).

Date of GRAMA Denial: October 1, 2020 (see email correspondence of Utah Attorney Jeremy R. Cook of Cohne Kinghorn P.C. available at https://echo-association.com/?page_id=7752).

Date of GRAMA Appeal to Chief Administrative Officer: October 2, 2020.

Date of GRAMA Decision of the Chief Administrative Officer:  No response.

Relief Sought / Grounds for Appeal:

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” if the record is not privileged or confidential while the intentional refusal to disclose public records may be a criminal offense under Utah Code Ann. sec. 63G-2-801(3)(a).

While records may be classified as “protected” under Utah Code Ann. sec. 63G-2-305 (17),(18) and (23), these provisions do not apply to the present request for legal invoices of a private law firm providing legal services to a public entity.

Firstly, legal invoices paid with public funds are unquestionably public documents and are not subject to attorney-client privilege due to the fact that both Simplifi and EID trustees have refused to disclose if public funds are in fact being used for the private legal defense of Simplifi including Mrs. and Mr. Hawkes in pending state and federal proceeding.

Moreover, Mrs. and Mr. Hawkes have requested attorney fees with the Utah State Third District Court to be awarded to both themselves and EID thereby requiring an affidavit regarding the scope and duration of work performed and have thus waived any claim of attorney-client privilege should such attorney-client privilege exist.

Second, records may be classified as protected only if prepared “in anticipation of litigation or administrative proceedings”. This provision clearly does not apply to invoices for past legal services, due the fact that such documents are in no way prepared in anticipation of future litigation or proceedings.

Next, invoices for past legal services do not reveal “litigation strategy” as purported by EID through Utah Attorney Cook but merely document the scope and duration of work performed by a licensed legal professional in pending state and federal proceedings.

Lastly, Utah Attorney Cook himself argued in legal proceedings that GRAMA requests has forced “EID, Eric Hawkes, Jennifer Hawkes, or Simplifi Company to waste considerable time and resources responding to those requests” (emphasis added)(see id.), thereby confirming that public funds administered by Simplifii for EID are in fact being used for the private legal defense of Simplifiincluding Mr. and Mrs. Hawkes.

Kind Regards,

Mark Christopher Tracy
Emigration Canyon Home Owners Association
Tel. 929-208-6010

 

From: The ECHO-Association <m.tracy@echo-association.com>
Subject: GRAMA Appeal to the Chief Administrative Officer – Legal Invoices of the Salt Lake Law Firm Cohne Kinghorn P.C.
Date: October 2, 2020 at 9:34:59 AM PDT
To: mike@ecid.org
Cc: dave@ecid.org, brent@ecid.org, Eric Hawkes <eric@ecid.org>, Jennifer Hawkes <hawkes@ecmetro.org>

Dear EID Trustee Chairman Michael Scott Hughes,

The email correspondence below was received yesterday 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 17, 2020 under the Utah Government Records Access and Management Act (“GRAMA”) for 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 Kinghorn to the Simplifi Company on behalf of Emigration Improvement District (“EID” aka Emigration Canyon Improvement District aka ECID) believed to document the misuse of public funds for payment of the private legal expenses of the Deputy Mayor of Emigration Canyon Jennifer Hawkes and EID General & Financial Manager Eric Hawkes of the Simplifi Company.

We hereby appeal denial of the GRAMA request to the Chief Administrative Officer.

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 and mangers may be concealing the extensive use of public funds for the private legal defense of the Simplifi Company and the Deputy Mayor of Emigration Canyon Jennifer Hawkes.

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” if the record is not privileged or confidential while the intentional refusal to disclose public records may be a criminal offense under Utah Code Ann. sec. 63G-2-801(3)(a).

While records may be classified as “protected” under Utah Code Ann. sec. 63G-2-305 (17),(18) and (23) as noted below by Utah Attorney Cook, these provisions do not apply to the present request for public documents.

Firstly, legal invoices paid with public funds are unquestionably public documents and are not subject to attorney-client privilege due to the fact that both Mr. Hawkes and EID trustees have refused to state if public funds are being used for the private legal defense of Mrs. and Mr. Hawkes in pending state and federal proceeding.

Moreover, Mrs. and Mr. Hawkes have requested attorney fees with the Utah State Third District Court to be awarded to both themselves and EID thereby requiring a affidavit regarding the scope and duration of work performed, and have thus waived any claim of attorney-client privilege should such attorney-client privilege exist in regard to the requested documents.

Second, records may be classified as protected only if prepared “in anticipation of litigation or administrative proceedings”. This provision clearly does not apply to invoices for past legal services, due the fact that such documents are in no way prepared in anticipation of future litigation or proceedings.

Next, invoices for past legal services do not reveal “litigation strategy” but merely document the scope and duration of work performed by a licensed legal professional in pending state and federal proceedings.

Lastly, Utah Attorney Cook documents that GRAMA requests submitted to the certified EID records manager Eric Hawkes and the officer and director of the Simplifi Company Jennifer Hawkes has forced “EID, Eric Hawkes, Jennifer Hawkes, or Simplifi Company to waste considerable time and resources responding to those requests” (emphasis added)(see email correspondence below).

We therefore have reason to believe that Utah Attorney Cook has positive knowledge of the misuse of public funds for private litigation expenses.

We await the decision of the Chief Administrative Officer.

Kind Regards,

Mark Christopher Tracy
Emigration Canyon Home Owners Association
Tel. 929-208-6010

 

 

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;
(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 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
jcook@cohnekinghorn.com