Tuesday, Nov. 9, 2004 | 11:03 a.m.
CARSON CITY -- Gov. Kenny Guinn today called the Legislature into a special session to start Wednesday for the historic impeachment proceedings against Controller Kathy Augustine, accused of misconduct in office.
The governor's proclamation calls for the session to start Wednesday and limits the session to impeachment and funding the impeachment. The Legislature won't be able to conduct any other business unless Guinn approves.
The governor met Monday with legislators to discuss a last-minute legal challenge raised by Dominic Gentile, Augustine's Las Vegas attorney. Gentile said a special prosecutor should be named to handle the case because the attorney general's office has conflicts of interest.
Gentile said the office of Attorney General Brian Sandoval should not be allowed to prosecute because it is biased.
There were questions as to whether the impeachment proceedings should be delayed, but Guinn approved it.
Sen. Randolph Townsend, R-Reno, said, "It's full bore ahead."
Lorne Malkiewich, director of the Legislative Counsel Bureau, said a special prosecutor won't be used. He said the Assembly will decide whether to allow the attorney general's office to handle the prosecution or if the Assembly itself will call witnesses and take testimony without a prosecutor.
Malkiewich said this issue could be handled the same way as a committee meeting during the regular session. The committees take testimony, receive documents and then make a decision whether to process a bill.
The Assembly will take up the impeachment on Wednesday and will vote on whether there is enough evidence to send the case to trial in the Senate. If it approves the impeachment, the Senate would put her on trial.
Augustine, now in the middle of her second and final term, could be removed from her $80,000 a year job if she is convicted by the Senate.
No state officer has ever been impeached in Nevada and the staff of the Legislature has been busy trying to find out how other states handle these matters.
Augustine, a Republican, has already admitted to violations of the state ethics law for using a state worker to handle campaign duties while on state time. By law the Ethics Commission forwarded the matter to the Legislature for impeachment.
The attorney general's office brought the charges to the Ethics Commission and had threatened criminal charges, but backed off after Augustine admitted to the charges in front of the Ethics Commission. The attorney general's office is also planning to prosecute the case in the Legislature.
Gentile said one conflict of interest involved Deputy Attorney General Shane Chesney who was the legal adviser to Augustine prior to her questioning by the investigators of the attorney general's office.
Gentile said Chesney "provided the state controller with legal advice on the subjects about which she was interviewed for quite some time prior to" investigators' interview of Augustine.
"Moreover, he (Chesney) actually asked her questions and had her expand upon her answers to the attorney general investigators during that interview, all this after advising her to waive any right to remain silent that she had," he said.
Chesney, said Gentile, "encouraged" Augustine "to disclose (what) was only known to him through confidential communications that she had previously made to him."
Gentile also criticized the conduct of Gerald Gardner, chief of the criminal division in the attorney general's office, who is to be one of the prosecutors in the impeachment process. Gardner of Las Vegas was in charge of gathering evidence and he filed the complaint with the state Ethics Commission against Augustine.
Gentile said Gardner did not comply with the law when he filed the complaint with the ethics commission. He said Gardner should have allowed Jennifer Normington, the former secretary of Augustine, to file the complaint about the misuse of the office.
Gentile said Gardner, who was conducting a criminal investigation, improperly turned over the results of the probe to the ethics commission.
"The Attorney General was without statutory authority and in violation of law in supplying the materials gathered during a criminal investigation to the Ethics Commission," said Gentile.
Augustine and the ethics commission reached a settlement in which she admitted she should have known that members of her staff were working on state time on her 2002 re-election campaign. She said she told the workers this was volunteer work and they should do it on their own time.
Augustine was fined $15,000 by the ethics commission on her admission to three allegations.
Tom Sargent, spokesman for the attorney general's office, said, "We will address the (Gentile) letter at the appropriate time." He said Sandoval was not asked by the Legislature to respond to the allegations.
Under the current plan, the Legislature will meet at 10 a.m. Wednesday and pass a bill to pay for the cost of the session.
Then the Assembly will begin hearing evidence against Augustine to decide whether to deliver a bill of impeachment to the Senate. During this proceeding, the Senate is in recess.
If the impeachment bill is delivered, the Senate reconvenes. Guinn would then name a temporary replacement for Augustine while the trial is held. There will be a recess of at least 10 days for Augustine to study the bill of impeachment.
The Senate would return, probably around Dec. 4, to begin the trial, officials said. Sen. Mark Amodei, R-Carson City, is expected to preside over the trial. A lawyer, Amodei was chairman of the Senate Judiciary Committee in 2003.
The Assembly is not in session while the Senate holds the trial. The Assembly and Senate proceedings will be teleconferenced to the Sawyer State Office Building in Las Vegas.
Gentile and fellow defense lawyer John Arrascada maintain this is not an impeachable offense. Gentile said he thinks the Senate will censure Augustine but not toss her out of office.
Malkiewich said freshmen lawmakers will be in Carson City this afternoon for an educational session.
"We're getting everything ready so we can go tomorrow," he said.
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