Janise Macanas Noe a From: Craig Barlow Sent: Thursday, June 17, 2021 3:59 PM To: Wally Bugden; Janise Macanas Subject: RE: Dan Clark | suggest that under 5) we agree no request for early termination of probation and in any event, no request within two years of imposition of sentence for an application for a Section 402 reduction of sentence by one degree. The term of really, really good behavior probation is two years. (well maybe not exactly the last sentence). From: Wally Bugden Sent: Thursday, June 17, 2021 3:55 PM To: Janise Macanas ; Craig Barlow Subject: Re: Dan Clark ‘The proposed terms would be: 1) PLEAD TO TWO COUNTS of communication fraud, third-degree felonies; 2) Alford guilty pleas pursuant to Rule 11(i)(1), (2),(3); 3) the parties will jointly recommend no jall and no restitution; 4) court probation for two years; 5) defendant agrees to not request earlier termination to reduce convictions to class A misdemeanor level or for any other reason. The term of good behavior probation is two years. Comments? wally Walter F. Bugden, Jr. Bugden & Isaacson, LLC 445 E 2005, Suite 150 Salt Lake City, UT 84112 ‘Tel (801)467-1700 Fax (801)746-8600 Wally@bilawnet ‘The information transmitted in this email is considered Attorney Privileged and confidential and is intended only for the use of the individual or entity named. If you are not the intended recipient, you should be aware that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone and permanently delete this email. From: Janise Macanas Sent: Thursday, June 17, 2021 3:20 PM. To: Wally Bugden ; Craig Barlow Subject: RE: Dan Clark 1 UT AG 21-135 RYAN 0001Wally, | think 14 means rule 11, but what does 1, 2,3 mean? Janise Janise K. Macanas Director of Special Prosecutions Aggravated Felonies and Public Corruption Justice Division | Utah Atiomey General's Office 5272 S. College Drive Suite 200) Murray UT 84123, ‘Be01-209-7401 (CELL) P| imacanas@aguiah.cov ‘This message including attachments is confidential and intended forthe addressee only. If you received this message in error, please delete the content, Thank you From: Wally Bugden Sent: Thursday, June 17, 2021 3:03 PM To: Janise Macanas ; Craig Barlow Subject: Dan Clark Ihaven't been able to talk to my client yet. What about likely pursuant 11 | 1,2,3 with the terms you have proposed and an Alford plea? Wally Walter F. Bugden, Jr Bugden & Isaacson, LLC 4445 E 2005, Suite 150 Salt Lake City, UT 84112 Tel (801)467-1700 Fax (802)746-8600 Wally@bilaw.net The information transmitted in this email is considered Attorney Privileged and confidential and is intended only for the Use of the individual or entity named. If you are not the intended recipient, you should be aware that any dissemination, distribution, or copying of this communication Is strictly prohibited. If you have recelved this ‘communication in error, please notify us immediately by telephone and permanently delete this email 2 UT AG 21-135 RYAN 0002Wally Bugden ‘Thursday, June 10, 2021 3:29 PM Janise Macanas Clark Categories: Red Category I'm sorry I'm out of the office right now. | just glanced at my email and saw your email. I sent you a proposal 10 days ago, can't send it from where | am right now. And I'll resend it when I get home. Plus, | don't think cord is on Monday | think it's one week later on the 2st. | don't think the judge was available on the 14th Sent from my iPhone 4 UT AG 21-135 RYAN 0003Janise Macanas need From: Jayme Mackay Sent: Thursday, June 10, 2021 3:38 PM To: Janise Macanas; Craig Barlow; Wally Bugden Subject: Dan Clark Attachments: Clark - proposal etter 6-1-21.pdf Please confirm receipt 1 UT AG 21-135 RYAN 0008BUGDEN & ISAACSON, Lic 445 East 200 SouTH Trial-Lawyers Sure 150 SALT Lace Crry, UT 84111 PHONE 801-467-1700 Fax 801-746-8600 WALLY @SILAWNET. TARA@BILAW.NET Watrer F. Buspen, Jr. TARA L. ISAACSON June 1, 2021 VIA EMAIL: crbatlow@agutah.com imacanas@aautah.com Craig Barlow Janise Macanas Utah Attomey General's Office 5272 South College Drive, Suite 200 Murray, Utah 84123 Re: State v. Daniel Clark/ Case No. 211905623 Hello Janise and Craig: As soon as we knew there was a criminal investigation, we knocked ourselves out to be ‘as cooperative as possible with Patty Reed. In an effort to demonstrate our cooperation and to explain Dan's position, we furnished photographs of the paving he had completed, credit card statements and any and everything Ms. Reed requested. | even delivered the documents to the Campus Drive office. Not stopping there, we also agreed to an interview. Next, Dan submitted to a polygraph test shortly after the interview. Relations then soured, and Janise specifically instructed me to communicate exclusively with her and to stop alll further communication with Ms. Reed. So, as directed, | forwarded the polygraph results directly to Janise. My client and | bent over backwards to be cooperative with the investigation. We supplied records, furnished photographs, and agreed to be interviewed. How often does that happen? UT AG 21-135 RYAN 0005June 1, 2021 Page 2 Because | had sent the polygraph test results directly to Janise, and fully cooperated, | was flummoxed when the charges were filed without even a courtesy phone call from ‘one of you for some discussion before filing. But, c'est la vie. | was then disheartened during our phone call when Janise did not recall ever receiving the polygraph results. She later clarified that my letter and the results had indeed been sent to her. My letter and the results are enclosed again for everyone's convenience. The relevant polygraph questions were: Did you complete all the work awarded to Colt inc.? Did you actually do the work that you bid on and that Colt was paid for? He passed. This is, of course, a HUGE factual dispute. Dan would be happy to submit to a polygraph test administered by an examiner of your choice on this quintessential issue. Clearly, whether the work was performed is a critically important issue. Dan's position is that he performed the paving work. But because he was not disclosing that he was improperly awarding the contracts to himself (Colt), he was not checking in with the managing Park Ranger or the maintenance crew to announce his presence. Indeed, he was trying to complete the paving jobs without being noticed Respectfully, we don't think it's reasonable that a manager can honestly or in good faith contend that no work could be done in a park without the knowledge of the manager. On Antelope Island alone, there are more than 50 miles of pavement. So, we have the dilemma that Dan asserts (and the polygraph test supports) that he did the work (albeit without disclosing the impermissible conflict) and the State makes the contrary assertion that he did not do the work. Dan did the work. He was not invoicing for phantom work. Give him a polygraph test. What do you have to lose in the search for truth in this case? Dan is extremely contrite. He wants to reach a resolution. He knows he screwed up. He knows he committed a crime. He realizes there are consequences for his wrongful and criminal behavior, and he is prepared to take responsibility and make restitution, Combining Invoices for Counts 1-5 UT AG 21-135 RYAN 0006June 4, 2021 Page 3 ‘The communication fraud statute and caselaw do not support combining invoices to get above the $5000 threshold for a second degree felony. It appears that all the invoices referenced in counts 1 — 5 (except for count 1 which lists $7,350 and Count 5-which lists $9250) were below the $5000 threshold. The communication fraud statute supports that each invoice is a separate offense. It provides, "each separate communication made for the purpose of executing or concealing a scheme or artifice described in subsection (1) is a separate act and offense of communication fraud." The definition of “communication” includes conveying or transmitting information through the use of mail and written communication, which would include submitting the invoice. 76 - 10 — 1801 6). The case law confirms this reading of the statute. Utah's Court of Appeasis held that “communications fraud is complete when a fraudulent communication is made. Accordingly, communications fraud is not a continuing offense." State v. Kay, 215 UT 43, paragraph. 23, 349 P. 34690 (abrogated on other grounds). Retirement Dan worked for the state for 24 years. Utah Code Annotated 49-11-1401 provides that if he is convicted of an employment related felony offense, he will forfeit ail of his retirement. We recognize the Dan made a terrible mistake, but we don't think, in faimess, that the consequence of his criminal conduct should also trigger the enormous punishment of the forfeiture of his retirement after many years of providing the state with honest and excellent services. Dan had an outstanding career at Utah Parks and Recreation, a Division of Utah Natural Resources. For 24 years he was a project manager that built things for the State of Utah. For the past 14 years he built campgrounds and maintained the infrastructure for all 44 Utah State Parks. His performance reviews were always exemplarily and he had a reputation of hard work, getting things done, and being fair when their was a confit. In 2011 he was awarded Employee of the Year for by the Division of Natural Resources which has 7 Divisions and over 1,300 employees. He managed a budget of $24-$38 Million every year. He prioritized, designed, and completed hundreds of construction projects which included hundreds of contracts. When the conflict of interest in awarding contracts to Colt Paving surfaced the auditing department reviewed alll of the construction projects and contracts that Dan had been involved with to look for anything improper. The auditors did not find any problems or issues with any other construction UT AG 21-135 RYAN 0007June 1, 2021 Page 4 Projects or contracts and all rules and regulation had been followed. Dan was a hard working employee and the State of Utah benefited from his employment. Our proposal We ask: Allow Dan to plead guilty to TEN counts of Attempted Communication Fraud, class A misdemeanors. Dan will repay the State complete/ court-ordered restitution in the amount of $30,000 with an initial $10,000 good-faith payment to be made through the Atty. Gens office before June 21 and the remaining $20,000 to be paid before sentencing Recommend AP&P probation and 30 days jail look forward to resolving this case and continued discussion with you, Yours truly, Walter F. Bugden, Jr. Attachment A: polygraph Attachment B: employment award UT AG 21-135 RYAN 0008FILED DISTRICT COURT ‘Third Judiotal District WALTER F. BUGDEN, JR. (480) JUL 21 2021 TARA L. ISAACSON (7555) BUGDEN & ISAACSON, L.L.C. py Se On 445 East 200 South, Suite 160 ip ae Sait Lake City, UT 84111 Telephone: (801) 467-1700 imile: (801) 746-8600 Attomeys for Defendant IN THE THIRD DISTRICT COURT, SALT LAKE DEPARTMENT ‘SALT LAKE COUNTY, STATE OF UTAH ‘STATE OF UTAH, Plaintiff, ‘STATEMENT OF DEFENDANT IN SUPPORT OF GUILTY PLEA AND vs. CERTIFICATE OF COUNSEL DANIEL WAYNE CLARK, Case No. 211902653 Defendant. Judge Mark Kouris |, Daniel Wayne Clark, hereby acknowledge and certify that | have been advised of and that | understand the following facts and rights: NOTIFICATION OF CHARGES 1am pleading guilty to the following crimes Crime & Statutory Provision Degree Punishment Min/Max and/or Minimum Mandatory ‘Communication Fraud Third Degree $5,000 fine; 90% U.CA. § 76-10-1801(1)(d) Felony ‘surcharge; 0 to 5 years at Utah State Prison; Communication Fraud Third Degree $5,000 fine, 90% UGA. § 76-10-1801(1)(d) Felony surcharge; 0 to 5 years at UTAG 21-135 RYAN 0009Utah State Prison [have received a copy of the Amended Information against me. | have read it, or had it read to me, and I understand the nature and the elements of the crimes to which | am pleading guilty. ‘The elements of the crimes to which | am pleading guilty are: 4. On March 25, 2019, in Salt Lake County, State of Utah, the defendant devised a scheme or artifice to defraud another or to obtain from another money, property or anything of value by means of false and fraudulent pretenses, representations, promises, or material omissions, and who communicated with any person by any means for the purpose of exacuting or concealing the scheme or artifice; towit: the defendant devised a scheme to defraud the Division of Parks and Recreation by awarding a state bid to his company, Colt Paving, Inc. for re-grading work done at Rockport State Park and was paid for work that was not completed (Invoice #32159). ‘The value of the money obtained exceeded $1,600 but was less than $5,000. 2 OnNovember 15, 2019, in Salt Lake County, State of Utah, the defendant devised a scheme or artifice to defraud another or to obtain from another money, property or anything of value by means of false and fraudulent pretenses, representations, promises, or material omissions, and who communicated with any person by any means for the purpose of executing or concealing the scheme or artifice; to wit: the defendant devised a scheme to defraud the Division of Parks and Recreation by awarding a state bid to his company, Colt Paving, Inc. for re-grading work done at UTAG 21-135 RYAN 0010Rockport State Park and was paid for work that was not completed (Invoice #111519). ‘The value of the money obtained exceeded $1,500 but was less than $5,000. I understand that by pleading guilty, | will be admitting that ! committed the crimes listed above. | stipulate and agree that the following facts describe my conduct and the conduct of other persons for which | am criminally liable. These facts provide a basis for the court to accept my guilty pleas and prove the elements of the crimes to which | am pleading guilty: Defendant, Daniel Wayne Clark, worked for the State of Utah Department of Natural Resources (DNR). Clark was the Construction and Development Manager for the Division of State Parks and Recreation within the Department of Natural Resources. Clark was hired by the Department in 1997. He began working for the Division of Parks and Recreation in 2007. Clark started Colt Paving Inc in February 1996, before he began working for DNR. Clark had authority to authorize bids for repairs to parking lots and other areas of state parks when the amount of the repair bid was below $5,000. Without informing his employer, DNR of his paving business, Clark awarded his business, Colt Paving, Inc. two repair contracts (Counts | and tI of the ‘Amended information) for amounts over $1,500 but less than $5,000 on March 25, 2019 and November 15, 2019 at Rockport State Park. Although Clark awarded the two bids to his own company and received payment for both bids, neither Clark, nor Clark’s company did the work required by the bids. Accordingly, Clark devised a scheme or artifice to defraud the State of Utah, Department of Natural Resources to obtain money by the false and fraudulent pretense of: (1) concealing the creation of his paving UTAG 21-135 RYAN 0011company from his employer; (2) ewarding repair bid contracts to his own company without informing his employer or seeking bids from other companies; (3) submitting fraudulent invoices representing that repair work had been done when, in fact, no work wes done; (4) and receiving payments when no work was done all in Violation of Utah Code Ann. Section 76-10-1801(1)(c). wal F CONSTI JAL RIGHTS 11am entering these pleas voluntarily. | understand that I have the following rights under the constitutions of Utah and of the United States. | also understand that f| plead guilty, 1 will give up all the following rights: Counsel: | know that | have the right to be represented by an attomey and that if Tcannot afford one, an attorney will be appointed by the court at no cost to me. | understand that | might later, ifthe judge determined that 1 was able, be required to pay for the appointed lawyer's service tome, Thave not waived my right to counsel. My attomey is Walter F. Bugden, Jr. My attomey and | have fully discussed this statement, my rights, and the consequences of my guilty pleas. Preliminary Hearing. For any case involving a Class A Misdemeanor or greater, ‘have a right to a preliminary hearing where the State carries the burden of proof and the magistrate is required to find probable cause that the crimes listed in the information ‘were committed and that | committed them. I have the right to cross examine the State's witnesses, to testify, to call witnesses, and to present evidence if | so choose. If the State fails to meet this burden, 1 am entitled to a dismissal of charges. if no preliminary UT AG 21-135 RYAN 0012hearing was held in this case, | am giving those rights up by pleading guilty with the consent of the prosecuting attomey. Jury Trial: | know that | have a right to a speedy and public trial by an impartial (unbiased) jury and that | will be giving up that right by pleading guilty. Confrontation and Cross-Examination of Witnesses: | know that if | were to have a trial, (a) I would have the right to see and observe the witnesses who testified against me, and (b) my attomey would have the opportunity to cross-examine all of the witnesses who testified against me. Right to Compe! Witnesses: | know that if | were to have a trial, | could call witnesses if | chose to, and | would be able to obtain subpoenas requiring the attendance and testimony of those witnesses. If! could not afford to pay for the witnesses to appear, the State would pay those costs, Right to Testify and Privilege Against Self-Incrimination: | know that if| were to have a trial, | would have the right to testify on my own behalf. | also know thet if| chose not to testify, no one could make me testify or make me give evidence against myself. | also know that if| chose not to testify, the jury would be told that they could not hold my refusal to testify against me. Presumption of Innocence and Burden of Proof: | know that if| do not plead guilty, | am presumed innocent until the ‘State proves that | am guilty of the charged crimes. If | choose to fight the charges against me, | need only plead “not guilty,” and my case will be set for trial. At a trial, the State would have the burden of proving each UTAG 21-135 RYAN 0013