Augustine won’t face criminal charges

Thursday, Oct. 7, 2004 | 11:13 a.m.

CARSON CITY -- Attorney General Brian Sandoval has decided not to file criminal charges against beleaguered state Controller Kathy Augustine despite the fact that she has admitted she broke the law.

Sandoval said Wednesday the impeachment process was the "most appropriate forum for justice in this matter." He said it was the "most expedient and the most powerful" course to justice when compared with a criminal trial.

Dominic Gentile, one of Augustine's attorneys, said, "I never had any doubt they would not file criminal charges." He said the attorney general's office could not meet the standard of proof to convict Augustine in a court of law.

And, Gentile said, "If Kathy Augustine is given a trial (in the state Senate) as opposed to a political lynching, she won't be impeached, and I guarantee it."

The state Senate must meet the same standard of proving beyond a reasonable doubt that Augustine is guilty of malfeasance in office, Gentile said.

So far, he said, the public has heard only one side of the case. Witnesses will be presented in the Senate that will challenge those who testified against Augustine during the investigation that she used her state office staff during state time in her 2002 re-election campaign.

Gerald Gardner, chief of the criminal division in the attorney general's office, said he and other state officials had considered filing possible counts of misconduct by a public officer, a felony. The penalty for that offense is mandatory probation and a $5,000 fine.

The decision not to bring criminal charges is final, even if Augustine resigns to avoid impeachment and even if the Senate does not convict her, Gardner said.

Asked about a resignation, Gentile said, "It ain't going to happen."

Augustine could not be reached for comment Wednesday.

John Arrascada, her Reno lawyer, said he was pleased that Sandoval decided not to criminally prosecute the case. He said he hopes members of the Senate that will hear the trial "will uphold their sacred oath" to be unbiased and to make "their decisions based on the facts and evidence and not on politics."

Arrascada said Augustine has been punished more severely than any other politician in Nevada with the fine imposed by the ethics commission.

Gardner said his office spent months preparing the case against Augustine and filed the complaint with the state Ethics Commission.

Augustine and the Ethics Commission reached a stipulation in which she admitted to three counts of using her state staff during work time to help in her 2002 re-election campaign. The commission fined her $15,000 and turned the case over to the Legislature for possible impeachment.

Augustine is paying the fine in $500 a month installments and made the first payment this month. Since the decision of the commission, Augustine has continued to perform her duties in her office in Carson City.

Gardner said the decision was made not to pursue the criminal charges after reviewing the transcripts of the closed session of the commission.

Gov. Kenny Guinn has said that unless Augustine resigns, he will convene a special session of the Legislature in the second week of November to consider impeachment.

The Assembly would have to find there is sufficient evidence to go forward with her impeachment. The Senate would then hold a trial.

Lorne Malkiewich, director of the Legislative Counsel Bureau, said the Senate, if it finds her guilty of misconduct in office, could remove her from her $80,000 a year job or suspend her. The Senate could also sidestep a conviction by issuing her a letter of reprimand.

A letter of reprimand was approved by the Legislature about 10 years ago in the case of then Attorney General Frankie Sue Del Papa for her efforts to toss local elective officials in Lincoln County out of office for their support of a high level nuclear dump in Southern Nevada.

The state attorney general's office will serve as one of the prosecutors in any impeachment proceeding. Sandoval said the impeachment process was developed for exactly these types of circumstances.

"Ms. Augustine will have the opportunity for due process before the state Assembly and perhaps the state Senate. It is there that she will have her opportunity to present her case and be heard by the newly elected legislators of the state," said Sandoval.

The attorney general said, these violations occurred within the sphere of her office and an impeachment proceeding "will serve the ends of justice and the people of Nevada."

The attorney general's office said it has a conflict in representing Augustine because of its role in the impeachment process. She has hired Reno lawyer David Grundy to represent her and the state is paying that tab since the attorney general's office bowed out.

Gentile said if the Senate and Assembly "will sit as citizens instead of politicians, Kathy Augustine will not be impeached." He added, "I don't know if it will happen. I'm not a pie-in-the-sky idealist. I just hope they (the Legislature) abide by their oath."

Gentile said he doesn't think he is going up "against a stacked deck." So far there has been only one side of the case heard, he said. And there has been no cross-examination of the witnesses against Augustine.

"The impeachment process is supposed be a review of evidence by the Assembly and Senate. It is not supposed to be a political proceeding," Gentile said.

Augustine has also been sued in federal court in Reno by her former chief deputy Art Ingram in a sexual harassment complaint. He accused her of "sexually stalking" her after he rejected her romantic advances.

In the lawsuit filed in June, Ingram said Augustine touched him "in an overtly sexual manner," attempted to kiss him, demanded a hug from him and lifted her shirt and exposed her skin and her bra.

Augustine has denied the charges. In the investigation by the attorney general's office, she said, Ingram was reprimanded twice for failing to provide her with briefings and even tried to bar her from some sections of the office.

She said his behavior in the office was "so erratic and unpredictable" that she cut off any invitations for him to represent her outside the office. She said it was "ludicrous for Mr. Ingram to even suggest I would lift my shirt and show him my bra or make sexual advances towards him."

Ingram is on duty in the Army as a lieutenant colonel in Germany.