DA to Hayward: Cease and desist

By Randi Pierce

Independent Mike Hayward, candidate for Archuleta County commissioner, District 2, has been told by the district attorney that, in order to avoid prosecution, he must stop making campaign promises concerning donation of his salary to charity if he is elected.

On Oct. 19, 6th Judicial District Attorney Todd Risberg determined that campaign promises made by Hayward were, in his opinion, in violation of Colorado Statute and subject to prosecution.

Specified was Hayward’s promise to contribute his salary to local nonprofit organizations if he were elected. That promise was supplemented by an online poll that allowed local voters to determine which organizations might receive that money.

A complaint was filed concerning the tactic, a preliminary investigation was submitted to the DA by the Archuleta County Sheriff’s Office and a follow-up investigation was completed by local DA Investigator George Daniels, who sent a report to Risberg.

“Any time an affidavit is filed with an election complaint, we are required to investigate,” Risberg said on Oct. 19.

“I concluded it is a violation of state statute to promise to give money to charities in the way he did,” said the district attorney.

In lieu of prosecution, however, Risberg offered Hayward a compromise. “I offered an alternative resolution (to prosecution),” said Risberg. The DA said he did so, “in order to avoid filing formal charges, litigate during election season and have the charges become an issue in an election ... furthermore, any resolution of a criminal case wouldn’t be decided on until after the election.”

The alternative resolution, said the DA, was that Hayward agree to stop making the promises and, “not make any more promises during the campaign.”

The conditions agreed to, according to the e-mail from Risberg to Hayward, are as follows:

“I believe that publicly offering to donate your salary to local charities if you are elected is a violation of C.R.S. 1-13-720(1)(a). Pursuant to that statute, it is unlawful for any person to offer or promise any money to anyone to induce anyone to vote for any particular person. I understand that you may disagree with my interpretation of the law, but it is my obligation to make such decisions and to fashion an appropriate remedy when the law has been broken. Initiating criminal charges against a candidate for a relatively minor issue during the final weeks of a local election does not serve the public’s interest in a full and open discussion of substantive local issues. Therefore, rather than file formal charges I propose an alternative resolution to address the issue. If you will agree to the following conditions, no charges will be filed regarding this matter.

“1. Acknowledge that you have stopped making promises or offers of monetary contributions to any person or organization if you are elected;

“2. Refrain from making any such offers or promises during the campaign. After a candidate is elected, he or she may donate money to anyone in any legal fashion.”

Risberg said he received a response from Hayward Friday morning.

“He had some questions and I answered in an e-mail. This morning, he answered and said he would do that.”

Asked if he would have moved to prosecution had Hayward not agreed to the stipulations, Risberg repled, “Yes.”

A response e-mail from Hayward to Risberg sought clarification on the conditions, as well as providing Risberg with a previous e-mail chain that, “shows that I explained to the charities that I was using the survey as a basis to determine what types of programs the community as a whole would like us to invest in. It also shows that the charities acknowledge that I am not promising any particular charity they will receive funds.”

In response to Hayward’s questions, Risberg told Hayward:

“1. You will not be required to attempt to retrieve materials which have already been distributed.

“2. You must refrain from making any such offers or promises during the campaign. This includes distributing materials which include such promises. The flyer you attached includes a promise that you will give money to charities if elected and would be in violation of C.R.S. 1-13-720(1)(a).

“3. I cannot advise you regarding how to answer questions about the issue. Again, You must refrain from making any such offers or promises during the campaign.

“If you confirm by email that you will abide by these conditions, no charges will be filed regarding past conduct. If there are additional violations, charges will be filed.”

Hayward submitted an e-mail response to SUN staff following The SUN’s online update posted on Oct. 19, in which Risberg’s decision and the compromise were announced.

Though Hayward agreed to the compromise, “... in the best interest of the process and getting the discussions back on the key issues and away from the distractions,” he is not admitting that what he did was wrong.

“I never admitted guilt and have talked to three attorneys who all said they did not agree with the DA’s opinion and thought I had a high probability of winning the case if I chose to pursue,” Hayward wrote. “The Secretary of State’s campaign finance legal office’s (including the head of legal for the office) interpretation is that I have not violated either of the statutes cited in your original article.”

Hayward said the three attorneys consulted included two local, private practice attorneys and his son-in-law, who is in the U.S. Coast Guard and is working with the state department.

Hayward said in a later interview that, despite those opinions, he determined that pursuing the situation would add nothing to his campaign because it would not be decided until after the election, and would incur legal fees.

Further, Hayward noted that he does not have to collect anything given out in the campaign regarding the promise prior to his agreement, and said abstaining from the promise for the final weeks of the campaign would be fine.

“That’s not a big deal for me,” Hayward said.

But, Hayward stated the agreement was the way to return to the election’s issues. “... this campaign is really about my qualifications for office, my goals for the next four years for the County, Mr. Lucero’s record and the issues important to voters, that is what I want to focus the campaign on — issues that matter to the voters.”

“It wasn’t an unreasonable agreement,” Hayward said.

Hayward’s response to SUN staff also alleged a misstatement of facts on The SUN’s part, stating, “Let’s let the voters have all the facts so they can make their own assessment. As you are aware by now the complaint was filed by one person not two like you stated in your article.The person filing the complaint Bob Moomaw, is a campaign donor to Clifford Lucero, and the two of them have a history together in controversial issues (i.e. the Pavilion). What you might not be aware of unless you read the fine print in one of your ads, the sheriff, Pete Gonzales is also a key supporter of Clifford Lucero, and is who the complaint was submitted to. It was then Pete Gonzales that brought the complaint to the County District Attorney. I feel that the public needs to have all the facts/information so they can decide, instead of the Pagosa Sun questioning my character and condemning me.”

However, it was multiple citizens who requested the situation be investigated.

“It was, in fact, two,” stated Gonzalez in a following interview.

Reports relating to the matter show that both Moomaw and another individual, Sandi Butcher, reported the situation to the sheriff’s office for investigation.

Additionally, County Attorney Todd Starr reported he was contacted by, “more than one individual” about the violation, but, with election law outside of the purview of the county attorney, those individuals were directed to the sheriff’s office.

Further, Gonzalez said he disclosed his support of Lucero in asking his staff — Deputy Brian Keegan and Undersheriff Rich Valdez — to do a preliminary investigation of the matter.

“I instructed my personnel to strictly do a preliminary investigation,” Gonzalez said. He added he was also up front with the DA’s office regarding his support and emphasized his decision for his office to complete only a preliminary investigation before the matter was sent to Risberg’s office. “His office is the one that found Mr. Hayward in violation.”

Further, Hayward’s response questions The SUN’s use of the word “tactic.”

“My promise is not a tactic, it is an assurance to the voters of Archuleta County that I will NOT be influenced by the money. There is a lot of concern about the amount of money awash in politics these days. So many politicians get into office, appear to get addicted to or corrupted by the money and will do anything or say anything to stay there.”

Karl Isberg contributed to this report.