The attorney general’s office announced today it will not be charging anyone in former House Speaker David Gowan’s administration for doctoring public records.
Records that ultimately showed the Arizona House of Representatives had inappropriately paid for some lawmakers’ and staffers’ expenses were eventually turned over to the Capitol Times, Attorney General Mark Brnovich’s office concluded.
Because the records were obtained, albeit at a much later date and by a different administration, there was no way to criminally prosecute the person responsible for altering the records and not promptly turning over documents used in a database’s creation.
State statutes prohibit falsifying public documents, and concealing or hiding a public record. The actions are a class 6 felony.
Earlier this year, the AG decided not to charge Gowan despite a lengthy investigation that called reimbursements for travel and per-diem payments given to him “troublesome.”
The investigation by Attorney General Mark Brnovich, a Republican, also looked into whether Gowan had illegally used the fleet vehicles to travel Arizona’s 1st Congressional District, where Gowan was campaigning at the time.
Gowan also repaid the state $12,000 that he had wrongfully received as reimbursement for trips he had taken in state vehicles (but reported as taking in his own vehicle) and per diem pay for days he had claimed to work, but didn’t.
In a memo turning down charges for a House aide, assistant attorney general Todd Lawson details how the House began altering expenses in a master spreadsheet after a public records request from the Arizona Capitol Times. And, despite the fact that the Capitol Times had requested all documents related to creating the spreadsheet, the Gowan administration did not turn over the records, Lawson notes.
The AG’s investigation found that Travis Swallow, an employee who supervised the House accounting staff, had instructed people to alter the master spreadsheet that was ultimately given to the media. Swallow still works at the House.
“A whistleblower contacted the AG to report the practice, and began separately preserving a copy of the spreadsheet and the underlying records,” Lawson wrote.
Still, because the documents were turned over to the Capitol Times by House Speaker J.D. Mesnard shortly after he assumed the leadership role, the AG’s office can’t prosecute, Lawson decided.
“The investigation has concluded that while there was a lengthy, unexplained and likely intentional delay in the production of the actual travel records, and while some efforts may have been made toward the goal of concealing certain trips’ records from production, in the end the records requested were produced,” Lawson said.
While statutes say public records have to be turned over to requesters “promptly,” there’s no determined length of time for what’s considered prompt. Instead, it’s up to court’s to decide, and even then, the award for delays is damages, not criminal penalties, Lawson said.
The Capitol Times has not filed a civil suit against the House.
The records issue stems from a January 2016 request for travel records made by the Capitol Times. Gowan’s administration turned over a master spreadsheet, but refused to turn over the records on which the spreadsheet was built. After Mesnard assumed the top post in the House, more than a year after the request was filed, a trove of documents was given to the newspaper, including thousands of pages of travel request forms, receipts, state credit card statements, conference registrations, emails and other documents.
Emails from the Gowan administration, also turned over by Mesnard, show staff attempted to disguise some of that spending by providing the Capitol Times with the whitewashed summary of the chamber’s travel costs in a spreadsheet.
That spreadsheet left off thousands of dollars in costs originally incurred by taxpayers, for which the state was later reimbursed, either by outside organizations or by lawmakers and staff themselves.
Lawson’s memo affirms these facts, saying the final spreadsheet would not have accurately reflected the spending because numerous alterations were made to it as people paid back the state for previous expenses.
Plus, the House under Gowan did not “exercise diligence” in looking for records that would be covered by the Capitol Times’ records request.
“It would appear that the House intended for the edited spreadsheet to be the only information it produced in a (relatively) timely manner,” Lawson wrote.
But only turning over the master spreadsheet “subverts the purposes of public records inquiries” because it would have allowed the House to hide expenses that were only found to be out of line because a public records request was made by the newspaper, Lawson said.
Once the AG’s office began investigating, after the whistleblower tipped them off, Lawson said it appeared House staffers figured out there was an issue with destroying or hiding public records. Because of this, he believes the investigation cut off what the House may have intended to do with the records.