Thursday, Aug. 25, 2005 | 9:22 a.m.
An administrative law judge has canceled a Sept. 12 hearing, and without taking testimony, he will hand down a long-awaited ruling on whether Assembly Speaker and Henderson Deputy Police Chief Richard Perkins violated the Hatch Act.
Judge William G. Kocol of California canceled the hearing after attorneys for Henderson, Perkins and the U.S. office of special counsel, which enforces the 65-year-old law, asked him to make a ruling based on their legal filings and depositions.
In June 2004, the special counsel's office filed a complaint against Perkins, accusing him of violating the Hatch Act, which bars federal and certain state or local officials who are paid or oversee federal money from running for partisan political office.
Perkins and Henderson lawyers have argued that the the law does not apply to Perkins because he is insulated and his connection to federal funds used for department programs is minimal. The office of special counsel argue that a "bootless avoidance scheme" and that although Perkins may be kept ignorant of how federal funds are used in his command, it doesn't sever his connection with them.
Perkins, a likely candidate for governor, and his attorneys have accused the investigation of being politically motivated by a GOP administration that is pursuing a prominent Democrat.
Kocol declined to say when he will hand down the ruling, and attorneys for both sides said they couldn't predict a timetable.
"His decision to decide on the motions for summary judgment indicates he recognizes the dispute ongoing is really one of a series of rather novel suggestions on how the Hatch Act is supposed to be read, and a hearing would not really provide any further guidance," said Steven Ross, an attorney with the Washington, D.C.-based law firm Aikin Gump Strauss Hauer & Feld, which represents Henderson.
Henderson City Attorney Shauna Hughes called it a good sign that Kocol decided he has enough information to rule without conducting a hearing.
"It is impossible to know, but I take it as a positive sign," Hughes said.
The special counsel's office declined to comment on Kocol's actions and pending ruling, saying it is its policy not to discuss active cases.
Perkins also declined to comment, leaving that to his attorneys.
Lanny Breuer, an attorney for Washington D.C.-based Covington & Burling, expressed confidence that Perkins did not violate the Hatch Act and called it a questionable expense of federal tax dollars for an "arcane law" he contends the special counsel hasn't pursued against others in similar situations.
"We feel our case is meritorious and there is an overwhelming amount of law on our side," Breuer said. "We are hopeful the judge will rule in our favor."
If Kocol rules that Perkins violated the Hatch Act, the judge can say whether it warrants removal from his deputy chief job in Henderson. If the city doesn't remove him, the U.S. Merit Systems Protection Board could order that Henderson lose federal funds equal to two years of Perkins' salary -- in excess of $250,000.
Kocol's hearing initially had been expected to be held by the end of 2004. The case was held up after the city's and Perkin's attorneys argued to Kocol that the special counsel's office be required to release previous advisory opinions it had handed down in similar situations, Hughes said.
The office had objected to the release of the advisory opinions, which Hughes said shows a contradiction by the office in applying the Hatch Act. The office of special counsel contends the opinions are irrelevant and don't support a ruling that Perkin's isn't covered by the Hatch Act.
Kocol's announcement may come as Perkins prepares to formally announce his campaign for the Democratic nomination for governor. He has opened a campaign office but hasn't set a date for a formal entry into the race.
Democratic strategist Dan Hart, who is not affiliated with any gubernatorial candidate, said that if he was advising the campaign, he would tell Perkins to hold off announcing his candidacy until the ruling comes down. He said it would be a distraction because Perkins will face repeated questions while the issue is undecided. If the ruling goes against Perkins, he said he would be harmed politically.
"Anytime you are found in violation of a law like the Hatch Act, it doesn't enhance your ability to get elected," Hart said.
Perkins' campaign consultant, Sean Sinclair, dismissed any suggestions that the pending Hatch Act ruling should play a role in the timing of an gubernatorial announcement.
"That is just silly," Sinclair said. "The timing of a campaign announcement will be based on our long-term campaign strategy, not by random events or other candidates."
Eric Herzik, a political science professor at UNR, said Perkins needs to get the Hatch Act issue behind him at some point. That would happen with a ruling that clears him or by resigning as a deputy police chief, especially if the ruling goes against him, he said.
"This is one of those kind of issues that dogs you," Herzik said. "You are always asked about it, opponents joke about it, and it takes you off message."
Kocol's ruling would be released even if Perkins resigned as deputy chief, according to the special counsel's office.
Herzik said he doesn't believe a ruling against Perkins will harm him as long as he resigns in response to it. That would make the issue moot, and he doubts it would have any lasting impact with voters.
"I don't think people will care that much," Herzik said. "I think it would disappear quickly. It is not a financial crime. If he has found to have violated it in the past, it is a technical violation. Nobody was really sure if it was a violation."
Perkins has said that he would ultimately resign from his Henderson job if he ran for governor because it would be difficult to do full-blown campaigning and serve as a deputy police chief at the same time. He is responsible for police operations, overseeing a captain of investigations and two patrol captains.
With a new chief on board, Henderson officials have said they need the deputy chief on duty full time and wouldn't be interested in granting Perkins unpaid or vacation leave to campaign, as he was granted this year to serve in the Legislature.
Knight Allen, the Las Vegas man who asked the special counsel to review whether Perkins violated the Hatch Act, said he's willing to accept whatever the judge decides and hasn't ruled out voting for him in the Democratic primary as long as he resigns as deputy chief.
"I never dreamed it would tie him up the way it has and dragged on," Allen said. "I am just as anxious as he is to have it come to a conclusion one way or another."
Allen said, however, he still believes Perkins violated the Hatch Act. The law needs to be enforced to prevent conflicts of interest between those with power and those who control the money, said Allen, who added Henderson has a "leg up" by having a deputy chief serve as Assembly speaker.
In his deposition in January, Perkins criticized the special counsel for pursuing the case.
"It is somewhat disturbing to me that dedicating my life to public service has come under any negative scrutiny of this sort," Perkins said. "It also caused me some concern that Nevada's tradition of having a citizen legislature -- meaning every other year, so that everybody has to have a real life -- a day job, a return to the community and interact with my citizens -- is under siege in some fashion by this proceeding."
Either side has the option to appeal the ruling to the U.S. Merit Systems Protection Board. If that board ruled against Perkins, he could appeal the case to the federal Circuit Court of Appeals. The office of special counsel would have no more options to appeal beyond the board, which if it gets the case can order Perkins -- even if he resigns from Henderson -- be prevented from other state or local government employment for 18 months.
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