Assembly takes vote to impeach Augustine

Thursday, Nov. 11, 2004 | 11:07 a.m.

CARSON CITY -- In a preliminary move, the Assembly this morning decided unanimously to impeach Controller Kathy Augustine for using state employees and equipment in her 2002 re-election campaign.

The Assembly vote was a precursor to a final vote scheduled later this morning. The second vote would send the case to the Senate for a trial to decide if she should be removed from office.

The Assembly, sitting as a committee of the whole, took a voice vote on the motion by Majority Leader Barbara Buckley, D-Las Vegas, who said the evidence showed "admitted willful violations of our ethics law and a breach of the public trust by diverting public resources to a campaign instead of to completing the public's business."

There were no dissenting voices heard on the vote.

If the outcome stands on the final vote, as expected, Augustine will have to temporarily step down while she waits for the trial. Gov. Kenny Guinn will name a replacement. Augustine was first elected to the post in 1998 and re-elected in 2002.

The Senate would take up the case later this month or in early December.

The Assembly vote this morning came after four former or present employees in the office of Augustine testified Wednesday they worked on campaign materials during office hours.

Buckley said after the testimony the Assembly has no other choice but to vote to issue articles of impeachment that Augustine willfully violated the law by requiring Jennifer Normington, the former executive assistant to the controller, to work on state time on re-election materials.

The articles also say Augustine was guilty of a willful violation of using the state computer and equipment for the re-election campaign.

Augustine agreed to a stipulation with the state Ethics Commission that she violated state law, but she says she told her employees to do the campaign work on their own time. And these employees volunteer for the campaign duties.

Buckley said the line is clear between what elected officials can do when they run for office.

"You can't require or intimidate your employees into campaigning for you," she said. "You can't ignore, dismiss or retaliate against employees who are concerned about violating our ethics law."

Assembly Speaker Richard Perkins, D-Henderson, who presided over the hearing that started Wednesday, said these sessions "are not an adversarial, criminal proceeding in which the guilty or innocence of the accused officer is adjudicated."

These hearings are to determine whether there is sufficient evidence of official misconduct and the formal rules of evidence do not apply, he said.

Before taking the vote, John Arrascada, one of Augustine's attorneys, argued the testimony Wednesday was full of hearsay and innuendoes. He said the attorney general's office was heavily involved in the process despite a conflict of interest.

He said Gerald Gardner, chief of the criminal division in the attorney general's office, testified without having any first hand knowledge of the events. Nevada Supreme Court rules, he said do not allow an attorney with a conflict of interest to testify.

Dominic Gentile, Augustine's other attorney, wrote a letter to legislative leaders this weekend arguing that there were improprieties in the plans for the hearing, noting the alleged conflict of interest.

Before taking the vote, Perkins removed from evidence the investigative report of the attorney general's office.

Arrascada and Gentile both objected to this report being allowed into evidence. They said information gathered in a criminal investigation is not allowed to be disseminated.

The action by Perkins removes a possible point of appeal if the case ever goes to court.

Buckley, in making her motion to impeach Augustine, said there was direct evidence that Augustine continued to require workers to work on her campaign despite individuals expressing concern about using state time and equipment.

She said there was direct testimony that state duties were taken away from Normington because she was too swamped with campaign activities.

"There was direct testimony that the controller never asked for volunteers for her campaign, but required their participation," said Buckley.

Before today's session began, Gentile said it was "premature" to talk about any suit in the Nevada Supreme Court to halt the trial in the Senate. It's a possibility, he said but we're not committed to anything.

He said there is time after the Assembly completes its hearing today. "I'm not sure the Supreme Court is where we should be but I'll think about it."

Arrascada said the two have not talked about a suit in the Supreme Court but they are keeping their legal options open.

Asked about a possible suit, Perkins said the Assembly is on legal ground in its handling of the case. The Constitution vests the sole power in the Legislature on impeachment issues. And it has the authority to set the rules.

Perkins said Gentile is "used to operating in a court" and the rules are different in the Legislature.

Augustine did not show up for either hearing. She said Wednesday that she watched the proceedings on television from her office.

"It's not important that she be or not be here," Perkins said.

Buckley said Gentile is employing "typical strategy" in not presenting any witnesses at this preliminary hearing. The Augustine defense will have the opportunity to present witnesses and cross-examine the state's witnesses in the trial in the Senate.

The case is the first impeachment in Nevada history.