November 08, 2017 News » Cover Story

Former El Paso County Sheriff’s Office notary says top officials ordered falsifying of hundreds of oath affidavits 

Law & Error

  • Courtesy El Paso County Sheriff's Office
When Garrett Swasey rushed into harm's way amid the Nov. 27, 2015, shooting spree at Planned Parenthood that claimed his and two other lives, he couldn't have known his certificate of oath as a sheriff's deputy sat, apparently forgotten, in a box in the El Paso County Sheriff's Office.

Swasey was sworn as a deputy earlier that year, due to his police officer status at the University of Colorado at Colorado Springs, but his oath affidavit wasn't notarized nor filed with the Clerk and Recorder's Office until April 15, 2016, nearly five months after he was killed. Besides being common procedure used by sheriff's offices on the Front Range, notarizing and filing oaths might be required by law, although Sheriff Bill Elder said in a statement it's not.

Regardless, the delay in notarizing a document is the tip of the proverbial iceberg in a massive oversight and subsequent cover-up that could lead to legal trouble, or possibly even criminal charges, for members of the Sheriff's Office, multiple legal experts told the Independent. (No attorney wanted his or her name used, because speculating on possible criminal cases is frowned on in the profession.)

Swasey's affidavit was among those for about 1,000 deputies and other law officers in the region that hung in limbo for up to 15 months until, as one former employee described it, a frantic search ensued in the Sheriff's Office to find them, notarize them and file them with the Clerk and Recorder's Office as soon as possible.

Colorado law requires notary publics to witness the signature of a person signing a document, which is the whole point of a notary attesting to a signature and affixing their notary seal to a document. The law also requires every notary to keep a journal of each notarial act.

But most of the 1,016 affidavits in question — signed by the officers and Elder in 2015 (sheriff's officers must sign a new document with the entrance of a new sheriff) — were notarized in April 2016 without the notaries witnessing the signatures, according to Richard Dietz, a 13-year employee of the Sheriff's Office who left his county job in June 2017. Though he and another notary resisted orders to falsify the documents, Administrator Larry Borland ordered them to do so anyway, as quickly as possible, and notify Chief of Staff Janet Huffor when they were completed and ready to be filed with the Clerk and Recorder's Office, he says.

click to enlarge feature1-2-921b562698abbd04.jpg

"It was just stamp, sign, stamp, sign, stamp, sign," he says in an interview. "It was complete BS."

Dietz also says neither he nor Dave Mejia, another notary in the department who notarized the documents, entered those notarial acts in a journal as required by law. Noting he and Mejia "were directed to get them done ASAP," Dietz says, "The journals were not utilized for the oaths in question as they required signatures by the signer being notarized."

Several police officers whose affidavits were among those notarized by Dietz told the Independent they don't remember a notary placing a stamp on the affidavit when they signed it, including Colorado Springs Police Department spokesman Lt. Howard Black. "I don't believe there was a notary present," he says.

How the affidavits were handled calls into question whether the officers were authorized to carry out their duties of office, including arrests and search warrants — before the documents were notarized and filed, and after they were filed in April 2016 with allegedly falsified notary stamps.

The Indy asked for interviews with Elder, Borland and Huffor and communications director Jackie Kirby.

In response, Kirby said via email, "We would like to kindly decline your request for interviews."

She also provided this statement from Elder, which the Indy is presenting in full: "Appointments and Special Appointments must be affirmed by me at the time of the administration of the Oath of Office. I administer the Oath of Office to the law enforcement member. The Appointments and Special Appointments are then signed by the law enforcement member and me. There is no regulation or Colorado State Statute requiring these Appointments or Special Appointments to be notarized and there is no time frame in which they must be filed with the Clerk and Recorder's Office. All Appointments and Special Appointments completed to date have been filed with the El Paso County Clerk and Recorder's Office and returned to the Sheriff's Office for record keeping purposes."

click to enlarge Sheriff Bill Elder meets the media after taking his oath on Dec. 31, 2014. - PAM ZUBECK
  • Pam Zubeck
  • Sheriff Bill Elder meets the media after taking his oath on Dec. 31, 2014.

Colorado's notary-public law is specific about the duties of a notary (See "Notary duties by the book,"). They must witness every signature they notarize and they must keep a journal containing the type of document notarized, when it was notarized and the name and signature of the person whose signature they notarized.

But Dietz says that neither he nor Mejia followed the law that day in April 2016. Here's what happened, according to Dietz: One morning, Kirby came to the human resources department asking where the affidavits of officer commissions (oaths) are kept. He and Mejia told her that another employee handled them. Dietz says he assumed all the oaths had been previously notarized in 2015.

"When we went over her desk and cabinets, there were boxes and containers full of these cards of commissioned deputies, and from Colorado Springs Police Department" and other agencies, Dietz says. "They have to be notarized and were not. There were hundreds of them." After Kirby left the department, he says, "The next thing we know, Janet Huffor came down. It was like, 'We gotta get these records and notarize them. What are we gonna do?'"

In short order, Borland showed up, he says. "It was determined — we were directed at that point — that Dave and I would notarize these and then make Janet Huffor aware, and she would take them to the Clerk and Recorder's Office to have them recorded. We thought there might be implications, legally and morally, on our positions if we didn't. We didn't see these people [deputies and law officers] sign. We had no idea. They were 12 to 15 months old.

"A notary signature is meant to confirm the authenticity of the signature and the veracity of it," Dietz continues. "We were told to notarize them. We questioned it. We said, 'We can't notarize this. This isn't right.' We were basically told we gotta make this happen. He [Borland] made it clear. We were told to get it done."

Dietz says he and Mejia interpreted the order as mandatory, and believed that, if they refused, it could lead to disciplinary action or termination.

Mejia, who now works in a different department of county government, didn't return three phone calls from the Indy, after the Indy sought permission from county officials to interview him. "We met with Mr. Mahia [sic] late this morning," County spokesperson Dave Rose stated via email on Oct. 27, "and explained to him that the decision to speak or not to speak with you on this matter is entirely his choice and his employment with Public Works would not be at risk."

click to enlarge Larry Borland - COURTESY EL PASO COUNTY SHERIFF'S OFFICE
  • Courtesy El Paso County Sheriff's Office
  • Larry Borland

On Oct. 31, Jim Reid, head of Public Works, acknowledged that during that meeting he and other county officials suggested Mejia hire a lawyer. "I told him if you violated the notary rules, you might want to think about legal counsel," Reid told the Indy.

As for the journals, Dietz says after the Sheriff's HR department was eliminated in February 2017, "We [he and Mejia] were escorted down to the office in order to retrieve our personal items. If the journals were in a stack somewhere, we probably just didn't see them. It was a difficult time."

When the Indy submitted an open-records request for the journals, the Sheriff's Office said in an email the notary, not the department, is responsible for their notary journals. "They are not the property of a business or agency," Kirby wrote.

Dietz says he realizes he's taking a risk in exposing what happened, but felt compelled to come forward.

"I have a 16-year-old son and I'm trying to do the right thing," he says. "When confronted with something wrong, you should speak out. Enough is enough. I've been living with this for over a year now and it bothers me."

Asked how he feels about the prospect of being accused of crimes, Dietz says, "It scares me. It scares my wife and son. For 13 years I busted my ass for that place. This is not who I am. There comes a point where you can't not do something."

click to enlarge Jackie Kirby - COURTESY EL PASO COUNTY SHERIFF'S OFFICE
  • Courtesy El Paso County Sheriff's Office
  • Jackie Kirby

After the sheriff eliminated the HR department, Mejia and Dietz transferred to other departments. Dietz, named the Sheriff's Office Employee of the Year in 2013, was transferred to finance but resigned in June after he was given a seven-page letter of reprimand relating to the non-payment of two invoices, punishment he viewed as "unwarranted and unprecedented." He says it was his first disciplinary action in 13 years with the department. Dietz has since filed for unemployment, which has been opposed by the Sheriff's Office. Dietz's appeal hearing on Nov. 2 was continued until Nov. 30.

"The reason I'm coming out right now is the office has so many good people working for it, and the county deserves better [leadership]," Dietz says in an email. "The men and women of the EPSO put their lives on the line for the people of El Paso County every day, and what they've been told to do (or not to do), that's the story. And ultimately, when I'm depicted as some disgruntled ex-employee, I want it known that couldn't be farther from the truth. It's about the employees at the EPSO, it's about the citizens of this county and it's about the truth."

Records obtained by the Indy at a cost of $369 show that of the 1,016 affidavits of oath filed on April 15, 2016, Mejia notarized 126 of them. Dietz's seal and initials appear on 852 affidavits; 38 other affidavits were notarized by nine different people. Of those, 18 were CSPD officers' affidavits, which were notarized by seven different people; 18 of the 20 sheriff's reserve officers' affidavits were notarized by another person, and Dietz and Mejia's former co-worker whose workspace included the boxes of documents notarized two — for a Monument police officer and a Woodland Park police officer.

Among the affidavits were 537 for El Paso County deputies and 20 for reserve deputies; 386 for CSPD officers, and the remaining 73 for officers in Fountain, Monument, Palmer Lake, Manitou Springs, Woodland Park, Green Mountain Falls, and two colleges — Pikes Peak Community College and UCCS.

All deputies' affidavits, which bear deputies' signatures and that of Elder, are dated Jan. 13, 2015. The other officers' affidavits bear various dates in 2015, ranging from Jan. 21 to Oct. 9, although one — for a Monument police officer — was dated Dec. 17. Elder didn't sign two affidavits, one for deputy Gregory Young and another for a Green Mountain Falls officer, Timothy Bradley. Nor did Young sign the oath.

Unexplained is why Elder signed two for Swasey, the UCCS officer among those Robert Dear is accused of killing. Dear is awaiting a competency ruling before standing trial in connection with the slaying of three people and the wounding of nine. One Swasey affidavit is dated April 15, 2015, and was notarized by Mejia; the other is dated May 28, 2015, and was notarized by Dietz. Another UCCS officer, Jerod Heidrick, also has two affidavits bearing April 15 and May 28 dates, both notarized by Dietz.

click to enlarge Janet Huffor - COURTESY EL PASO COUNTY SHERIFF'S OFFICE
  • Courtesy El Paso County Sheriff's Office
  • Janet Huffor

All 1,016 affidavits are file stamped by the Clerk and Recorder's Office as received on April 15, 2016, at 8:28:54 a.m.

Because the documents were first signed and dated by officers and Elder, they look as though they were notarized on the dates they were signed. But Dietz says that's not the case. All those signed by him and Mejia were notarized on or about April 14, 2016, he says.

Records show that former Sheriff Terry Maketa, who served from 2003 to late 2014 when he resigned amid allegations of misconduct, followed the procedures commonly used by Colorado sheriffs in which deputies and the sheriff sign the affidavit of oath, have it notarized on the spot and file them with the county clerk's office within weeks.

Spokespersons for sheriff's offices in Larimer County, Arapahoe County and Douglas County report using that same procedure.

"The officer is there with the notary when he or she signs," reports Douglas County Sheriff's Office public information officer Lauren Lekander.

Larimer County Sheriff's PIO David Moore says, "The officer has to be standing before the notary."

Adams County Sheriff's Sgt. Jim Morgen refused to answer questions about its process, citing a concern that the Indy's story would be "derogatory" toward law enforcement.

The Indy contacted several attorneys in Colorado Springs regarding the potential implications of the unwitnessed notarizations and delayed filings. None would comment on the record.

Speaking on behalf of District Attorney Dan May, spokeswoman Lee Richards said, "It would be inappropriate for any DA to comment without knowing anything about the situation. He won't speculate on anything."

While state law doesn't specifically say the oaths are to be notarized and filed with the county clerk, it says deputies appointed to office "before entering upon the deputy's duties under such appointment, shall take and subscribe the like oath of office as that required to be taken by the appointing officer and shall deposit the same in the office where the oath of such officer is deposited."

The appointing officer is Elder in this instance, who's required by law to execute a bond and "take and subscribe the oath of office prescribed by law, before some officer authorized to administer oaths, and deposit the same with the official bond to be filed and preserved therewith."

Elder's oath, taken Dec. 31, 2014, upon Maketa's early departure, was filed Jan. 5, 2015, with the clerk's office. His oath for his first term taken on Jan. 13, 2015, was filed the next day. The first one was notarized, the second one was not.

While it's difficult to say what, if any, charges could be brought against sheriff's officials if Dietz's accusations are verified, there are some clues. Among the criminal statutes are laws that require public servants to abide by state laws, bar public servants from making an official written instrument containing statements they know are false, and prohibit anyone from attempting to influence a public servant by threat of economic reprisal with intent to affect the public servant's actions or decisions.

It's also illegal for a person without authority to induce another against their will through threat of harm or economic hardship to perform an unlawful act.

Charges could arise from a grand jury investigation, which could be triggered by a complaint from any citizen or elected officials, one legal expert said.

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