Controller Augustine to admit wrongdoing

Thursday, July 8, 2004 | 11:04 a.m.

CARSON CITY -- State Controller Kathy Augustine intends to admit to a violation of the state ethics code, possibly leading to a historic impeachment trial in the Nevada Legislature.

The state attorney general's office said Wednesday that it filed a complaint with the state Ethics Commission alleging Augustine, a Republican in her second term, used her office staff to work on state time on her 2002 re-election campaign.

Gerald Gardner, chief criminal deputy attorney general in charge of the case, met for 90 minutes with Augustine's lawyer John Arrascada of Reno. After the session Gardner said that Augustine "intends to stipulate to willful violation of the code of ethics."

Gardner said criminal charges are not being filed. He said there was no discussion of Augustine resigning her office during the meeting.

Arrascada said she has "no intention of resigning at this point." He said she intends to continue to "work diligently" in her job while the process moves forward.

If the state Ethics Commission found there was a "willful violation," then it would refer the case to the Legislature to go through the impeachment process.

Arrascada said Augustine is aware she could face impeachment in the Legislature if the Ethics Commission finds a "willful violation." But he said the impeachment process is a "gray area" since a constitutional officer has never gone through it.

He said rules prohibit both him and Augustine from commenting on the contents of the ethics complaint. "It is all confidential," he said. The complaint becomes public when a panel of the Ethics Commission finds there is probable cause for a hearing of the full commission.

He also said he had complied with the directive from the attorney general's office to file a reply by Tuesday. Attorney General Brian Sandoval said initially that no response had been filed by Augustine or her attorney.

"This is a very delicate matter and I believe it is being handled fairly," said Arrascada.

State Archivist Guy Rocha said there has never been an impeachment trial in the Legislature in the state's history. "This would be uncharted territory," Rocha said.

The Assembly would have to impeach by a majority vote and then the case would go to the Senate, where a two-thirds vote is required for removal from office. In an impeachment case, the legislators would be require to "do justice according to law and evidence," Lorne Malkiewich, director of the Legislative Counsel Bureau, said.

Gardner declined to say what is included in the complaint to the Ethics Commission. Jennings said nothing from the complaint can be revealed until a panel of two members makes a finding that there is sufficient evidence to proceed to the full Ethics Commission.

But Augustine has admitted that at least one of her staff members prepared campaign documents. Sources close to the investigation said there were several workers who used the state computer for campaign work.

Augustine maintains she told the staff member the work should be done on her own time.

Gardner declined to say why criminal charges were not filed. "I can't discuss criminal charges or a pending investigation." But Attorney General Brian Sandoval said Wednesday his office was prepared to also file criminal charges.

Rocha, one of the state's prime historians, said there has never been a case where a public officer was impeached or convicted or removed. The closest, he said, came in 1921, when District Judge Frank Langan of northern Nevada was called before the Legislature for a "removal" process. The Assembly voted 22-7 in favor of removal but the Senate vote was only 9-8 for his removal -- far short of the two-thirds necessary.

The Langan case was not called "impeachment" but "removal." However it followed the same process.

State Treasurer Ed Malley was removed from office for stealing $516,000 in 1929, Rocha said. But there was no impeachment hearing or trial.

Even though the state attorney general's office filed the ethics complaint Wednesday, certain procedures that must be followed first.

Jennings said Augustine has 10 days to answer the complaint before the commission. She said she also must conduct an investigation to make sure the charges are correct. This is necessary for "due diligence," she said. And she has 30 days to do this.

A panel of the Ethics Commission then must be convened within 10 days of receiving the investigation from Jennings. After it makes its decision, the full Ethics Commission has 30 days to meet and consider the case.

Jennings said the law requires the Ethics Commission to forward the case to the Legislature if it finds willful violations on the part of state constitutional officers and legislators. Augustine had said previously that there must be three violations of the code of ethics before she is subject to any removal process.

At the outer limits, this could carry the case into October. Then it would be up to the governor to decide whether to call the Legislature into special session or wait until the regular session begins in February to hear the case.

Augustine would remain in office during this period.

If it turns into a partisan issue for Republican Augustine, the Democrats control the Assembly 23-19 and have the necessary majority to impeach. But the Senate is controlled by Republicans 13-8, far short of the needed two-thirds if the votes fell along party lines.

The investigation into Augustine started with a complaint from Jennifer Normington, the former secretary to the controller. In early 2003 she told the attorney general's office that she worked during state time on campaign documents.

Normington has refused to comment on the case on the advice of the attorney general's office. But she did say that others in the office also worked on the campaign during state time.

Sandoval said the investigation took a long time because interviews had to be conducted by the staff and there had to be an examination of the computer files. "We had to be thorough," Sandoval said Wednesday.

Before being elected controller in 1998, she served both in the Assembly and Senate, representing a district in Las Vegas. She has said this the first time she has ever been accused of an ethics violation.

She has denied any criminal wrongdoing in the past. But she said she told Normington to do the campaign work on her own time. But she said previously she was willing "to take the hit" from the Ethics Commission.