Appeal of ruling a setback for Perkins

Wednesday, Oct. 19, 2005 | 7:50 a.m.

The U.S. office of special counsel will appeal an administrative law judge's ruling that Assembly Speaker Richard Perkins did not violate the Hatch Act while simultaneously serving as a Henderson deputy police chief.

The decision by the special counsel to appeal the Sept. 13 ruling by Judge William G. Kocol of California had to be made by Tuesday's deadline. The case will now be heard by the three-member U.S. Merit Systems Protection Board, an independent quasi-judicial agency of presidential appointees who review alleged Hatch Act violations.

The law bars federal and certain state or local officials from running for partisan political office if they are paid with or oversee federal money.

"We continue to believe Mr. Perkins was covered under the Hatch Act, and we feel confident in the outcome of this appeal," Special Counsel Scott Bloch said in a brief statement released by his office, which enforces the 65-year-old law.

Perkins, citing long odds of being elected governor, announced Sept. 21 that he would not pursue an expected bid for the Democratic nomination.

His attorney, Lanny Breuer, on Tuesday said he was disappointed that the special counsel appealed the case given that Kocal ruled overwhelmingly in Perkins' favor.

"We were right on the facts and right on the law," Breuer said. "Under any circumstances, we had a resounding win."

Perkins, who previously said he did not expect an appeal, did not return phone calls to comment Tuesday. In the past, he has called the investigation politically motivated because Bloch is an appointee of President Bush, describing his case a "witch-hunt" of a GOP administration pursuing a prominent Democrat.

The decision to appeal is important because Perkins is interested in pursuing political office in the future.

If the board decides Perkins violated the Hatch Act, it can say whether it warrants removal from his deputy chief job in Henderson. If the city does not then remove him, the board could order Henderson to forfeit federal funds equal to two years of Perkins' salary -- in excess of $250,000. If Perkins resigned, he also could be prevented from other state or local government employment for 18 months.

"The stakes are still pretty high for him," said Eric Herzik, a UNR political science professor. "You don't want a decision of any kind against you. It could affect his employment, and it would affect his future political ambitions. If the ruling goes against him, it will be on his record and brought up if he runs. It won't kill any future run, but it won't help."

In his ruling, Kocol said the special counsel failed to show that Perkins' employment had any connection with activity financed by federal funds. He said the special counsel issued an advisory opinion months after filing the complaint against Perkins in June 2004 that contradicted the position the office had taken in Perkins' case.

The judge even accused the special counsel of mischaracterizing several issues, including Henderson's program to comply with the Hatch Act. Henderson maintained that Perkins, who as head of police operations oversaw investigations and two patrol captains, was insulated and that his connection to federal funds used in the department was minimal.

The special counsel argued that although Perkins may have been kept ignorant of how federal funds were used in his command, it did not sever his connection with them.

"Given how critical the initial decision against the government's case was, I am surprised they appealed," Herzik said. "This says lawyers don't like to lose."

Knight Allen, the Las Vegas man who asked the special counsel to review whether Perkins violated the Hatch Act, said he was not surprised by the appeal. He said Kocol went "way beyond his area of authority" by attacking the Hatch Act.

"I don't believe the office of special counsel could let that go unchallenged," Allen said. "Mr. Perkins has found himself in a position where this is a case study that goes far beyond his own situation. He brought it on himself."

If the board rules against Perkins, he could appeal the case to the federal Circuit Court of Appeals.

Brian Wargo can be reached at (702) 259-4011 or by e-mail at wargo@ lasvegassun.com.