Gibbons-Miller showdown looms

Jeff German and Steve Kanigher

Friday, March 16, 2007 | 6:55 a.m.

Only 10 weeks into office, Gov. Jim Gibbons and Secretary of State Ross Miller are headed toward a constitutional showdown unlike any seen in Nevada for four decades.

Miller, a Democrat, is continuing to press the Republican governor for more information about $169,100 in contributions to a legal defense fund created Nov. 6, the day before the election, to help Gibbons fend off unproved assault allegations and other legal troubles.

And Gibbons - who turned up the political rhetoric this week by blaming the "uproar" over the fund on "certain individuals in the media and certain political opponents" - continues to resist giving Miller the information.

Miller, who insists he is simply carrying out the responsibilities of his office, wants to know exactly when the contributions to the fund were made, who in the Gibbons camp received the checks and why the governor did not originally report the existence of the fund on his Jan. 16 financial disclosure statement. Gibbons listed the $169,100 on a March 6 amended statement.

Miller is attempting to determine whether Gibbons unlawfully steered any campaign contributions to the defense fund or willfully failed to disclose the money on the Jan. 16 statement.

If that occurred, Miller could pursue civil penalties.

At the moment, however, there is a giant obstacle in Miller's path: Gibbons.

If Gibbons holds to his position, Miller may be powerless to compel the governor to turn over the information.

That, according to state archivist Guy Rocha, would create a constitutional standoff the likes of which Nevada has not seen since the mid-1960s, when Democratic Gov. Grant Sawyer and Republican Lt. Gov. Paul Laxalt butted heads.

In that episode, the two clashed after Laxalt, with Sawyer out of the state for a few hours, moved to impanel a grand jury to investigate the state highway department. Sawyer disputed Laxalt's authority to take that action and ultimately persuaded the Nevada Supreme Court to overturn it.

In the latest brewing showdown, both Miller and his top elections deputy, Matt Griffin, said they do not know exactly what powers might be available to them to force Gibbons to more fully disclose the legal fund contributions.

"We don't want to speculate on our next course of action," Griffin said Thursday. "We're not alleging anything against the governor. We just have some simple questions and we want some straight answers to them."

Griffin referred questions about the office's enforcement authority, including whether it has subpoena power in this case, to Senior Deputy Attorney General Christopher Nielsen, who provides legal advice to the secretary of state. Nielsen did not return phone calls Thursday.

One of Miller's predecessors, Republican Cheryl Lau, said she did not know whether the secretary of state has subpoena power under these circumstances.

Lau, who served from 1991 through 1994, said the office has authority to enforce campaign reporting laws.

"But I can tell you there is a difference between campaign contributions and expenditures and a legal defense fund," she said.

Eric Herzik, a political science professor at UNR, said Thursday he believes that Miller may be pushing the governor too hard.

The secretary of state, he said, should have consulted with Attorney General Catherine Cortez Masto to see whether he was on sound legal footing before pressing Gibbons for a fuller disclosure.

"I think Miller is piling on him," Herzik said. "He gets a response from Gibbons' lawyer but thinks that's not good enough and then demands that Gibbons respond personally without a lawyer."

The biggest problem for Miller is that defense funds are not covered in the campaign reporting statutes, the primary area of jurisdiction for the secretary of state.

That allowed Michael Pagni, the Reno lawyer who helped set up the defense fund for Gibbons, to make a case in a letter to Miller last week that the governor is not obligated to make any further disclosures.

There is an "absence of any clear controlling Nevada law addressing the administration or treatment of these types of funds," Pagni said.

Gibbons reiterated that view in a news release this week in which he also suggested that the media and his political enemies are trying to keep the story alive to "defeat the goals" of his administration.

"Because I believe that the people of Nevada have a right to know about this fund, I have reported the donations and expenses of the fund, even when it was not clear that I had to do so," Gibbons said.