DA replies to former trustees

John Scarffe, Nederland.  In a letter dated June 29, 20th Judicial District Attorney Stan Garnett replied to accusations of misleading and inaccurate statements about former members of the Nederland Board of Trustees read in a letter at the Board’s June 20, 2017, meeting. The Mountain-Ear received Garnett’s letter on Tuesday, July 18.


During public comments on June 20, Attorney Thomas D. Leland with Holland & Knight LLP said he represents former Nederland Mayor Pro-Tem Peter Fiori and former Mayor Joe Gierlach. Leland read from a prepared letter to set the record straight regarding statements about Fiori and Gierlach provided to the Board of Trustees and put into the public record by Nederland Marshal Paul Carrill.


Fiori was accused of two felonies in connection with his purchase of property at 55 Indian Peaks Drive, now known as the Caribou Room, Leland said. Fiori uncovered facts that showed the criminal prosecution against him was a politically motivated witch hunt.


After Fiori filed a motion setting forth these facts, the Boulder District Attorney dropped all felony charges, and ultimately Fiori agreed to plead guilty to a minor misdemeanor and a petty offense for failure to disclose a potential conflict of interest in writing, Leland said. Fiori believes that the District Attorney’s abrupt about-face shows that the criminal prosecution against him was motivated by political animus from former and current Town employees, including Carrill, who testified against him at his plea agreement and sentencing.


In two recent reports, Carrill has presented misleading and inaccurate information about Fiori’s case and plea agreement, Leland said. In an email to the Trustees dated April 4, 2017, Carrill stated that Fiori pleaded guilty to the following crimes that stemmed from the investigation into his unethical purchase of the Caribou Room building. Carrill’s characterization as “unethical” is unnecessary and misleading, Leland said. There has been no finding or agreement that Fiori acted unethically in any way.


Carrill’s submission for the April 18, 2017, Board agenda represents that part of Fiori’s sentence was that he was ineligible for future elected positions, but the judge made no such order, nor is it true that a party who has pled to a Class 2 misdemeanor may not seek or hold public office, Leland said. Carrill’s statements with respect to Gierlach in his April 18 submission are even more baffling, Leland said.


Carrill says that Gierlach “received a Grand Jury Censure, but due to statute of limitations was not indicted of Second Degree, Official Misconduct.” Nothing in this statement is true, Leland said.


A Grand Jury was never convened to investigate Gierlach, Leland said. Given that a Grand Jury was never convened, Carrill’s representation that Gierlach was not indicted “due to a statute of limitations” is categorically false. Indeed, Carrill’s choice of words suggests that he seeks to cast Gierlach as ultimately guilty, but as having been “let off on a technicality.”


Fiori and Gierlach requested that Carrill make a public, written apology to them and that it be noted in the Town minutes from that meeting, Leland said.


Garnett and Chief Deputy District Attorney Sean Finn wrote that aspects of Leland’s letter are misleading, and they thought it prudent to place them in proper context. The District Attorney’ Office prosecutes thousands of felony cases every year, and only a small percentage proceed to trial.


“In most cases, as in this one, the prosecution looks at the nature of the offense, the criminal history of the offender, and any other relevant facts and offers what is known as a plea bargain,” Garnett and Finn wrote. “Here, this office believed that convictions for Failure to Disclose a Conflict of Interest and Official Misconduct were appropriate. These charges captured the essence of the case and obtaining convictions on these crimes constituted justice.


“It certainly is troubling that a former public official, having plead guilty to fundamental breeches of his duty to the public, would consider such crimes ‘negligible.’ The fact that we decided to offer a plea bargain in this case should not be taken as a sign that this office accepted the defendant’s version of the events, or that there was any kind of change of opinion regarding the underlying facts, let alone the ‘abrupt about-face’ described in Mr. Leland’s letter,” Garnett wrote.


“Quite the opposite, this office stands behind the findings of the grand jury and its conclusions. Also contrary to the facts stated in the letter, it is true that the Grand Jury was unable to bring charges against Mr. Gierlach due to the expiration of the statute of limitations and the Grand Jury specifically so stated in the Paragraph 8 of the indictment.


“Moreover, this office has seen no evidence of personal animosity on the part of Marshal Carrill toward Mr. Fiori. This case involved public corruption, which was, in our view, an appropriate subject of inquiry by the Marshal,” Garnett wrote.


“The investigation was, however, primarily undertaken by investigators within this office. It was also not the Marshal’s decision to bring charges; that decision was left to the members of our community serving on the Grand Jury, and confirmed by the District Attorney by signing the indictment.”


Paragraph seven of the Grand Jury Indictment stated that several Trustees were uncomfortable with Fiori’s apparent conflict of interest, and one reported this conduct to the mayor. Nederland Municipal Code mandates that the mayor examine the grounds of complaints against elected officials to determine the existence of a violation or neglect of duty. Gierlach did not investigate as mandated.


Paragraph eight of the Indictment states: “A public servant commits Second Degree Official Misconduct if he knowingly, arbitrarily and capriciously refrains from performing a duty imposed upon him by law; however, the statute of limitations expired before these events became known to law enforcement. This Grand Jury cannot therefore seek to indict Mayor Gierlach at this time.”


Nederland Mayor Kristopher Larsen said that, in view of the District Attorney’s response, the Marshal will not be making an apology and it will not be noted in the Town minutes. Carrill’s statement that Fiori could not run for an office again was not found in the minutes and was not part of the public record, Larsen said.


“It’s unfortunate that we are still dealing with this after it has cost the Town a lot of time and money,” Larsen said. “It’s a closed matter and something we’re not going to pay any more attention to.”



(Originally published in the July 27, 2017 print edition of The Mountain-Ear.)