Controller Kathy Augustine Impeached In Assembly

Trial Scheduled To Begin November 29 In Nevada Senate Chambers

by Johnny Gunn

November 9, 2004 could be a date history students will be required to remember in years to come. On that date Nevada Governor Kenny Guinn called the Nevada legislature into special session to begin impeachment proceedings against State Controller Kathy Augustine. It is the 21st special session in Legislative history, however there is no precedent for the legislature to follow as no impeachment of an elected official has happened in Nevada's 140-year history.

Forty-two members of the Assembly met as a committee of the whole, heard testimony from several witnesses, and voted unanimously for impeachment. There are three articles of impeachment (see below) and the action now moves to the Senate for trial.

The Senate received the articles of impeachment on Friday, November 12 and will begin the trial phase of the proceedings on November 29, the Monday following Thanksgiving. The 21-member Senate will have to vote for conviction with a two-thirds majority, or 14 votes. The impeachment proceedings can be followed here.

The Senate named Reno attorney Daniel Greco, the Washoe County Chief Deputy District Attorney to act as special prosecutor. Greco has been with the district attorney's office for more than a decade and has considerable experience presenting cases before courts and juries.

The special session was called just a week after the General Election, and the makeup of the Assembly includes 12 new members while the Senate has four new members in attendance. Normally, the new legislators would be sworn in and seated in January despite the fact the constitution says they are members of the legislature the day after they are elected.

When the Legislature convened, the Senate appropriated money for the session, then adjourned. They were called back when the Assembly voted to impeach. The Senate appropriated about a quarter of a million dollars for the special session. There has been talk that Ms Augustine might be held responsible for about half those costs if she is convicted.

Augustine is charged with violations of the State's ethics laws and has admitted her guilt before the State Ethics Commission, for using a state employee to work on her reelection campaign in 2002. She has been fined $15,000 by the commission. Her guilty plea forced the Governor to institute impeachment proceedings, and Guinn says rather than wait until the regular session in 2005, he would rather do it now. The regular session is scheduled to begin February 7.

The Governor, U.S. Senator John Ensign, and many other high ranking Republicans in the state called for Ms Augustine to resign, but she has steadfastly refused to do so.

Guinn says the next session of the legislature is going to be busy with such things as property tax issues, water allocations, and continuing discussions over the massive tax increase from the last session. He says he is more comfortable having the impeachment hearings and trial held in special session.

During the first Assembly hearing, several witnesses were called, but Augustine's defense team called none saying in their opinion the hearing was tainted by way of the Attorney General taking part in the hearings. With the naming of a special prosecutor to handle the State's end of Augustine's trial before the Senate, her attorneys say they feel the trial will be fair and they are planning to present a vigorous defense.

According to the constitution, "A public officer or employee, other than a member of the Legislature, shall not use government time, property, equipment or other facilities to benefit his personal or financial interest." Augustine admitted to willful violations of state law before the Ethics Commission, and was fined $15,000 on September 22.

Following Augustine's impeachment, she was automatically removed from office by Governor Kenny Guinn who named Chief Deputy Controller Kim Huys as interim Controller. Huys has been with the controller's office for three years. Augustine is suspended with pay until her trial concludes.

The office of State Controller earns an annual salary of $80,000. If the Senate finds her guilty of any of the charges, she could be removed from office permanently. The governor then would have to appoint a replacement to finish her term of office, which expires in 2006.

The Senate will sit as a committee of the whole according to Majority Leader, Bill Raggio (R-Washoe). Raggio appointed Senator Mark Amodei (R-Carson City) as chairman of that committee.

Impeachment proceedings are public according to the leadership of both houses. Teleconferencing will bring the hearings to Las Vegas, and the Internet will provide moment to moment coverage. According to Senator Randolph Townsend (R-Washoe), there will be no closed hearings.

No one in Carson City is willing to guess how long the trial before the Senate might take. Each legislator will earn $130 per day while in session, and Special Prosecutor Greco will be paid by the state for his services.

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NEVADA STATE ASSEMBLY ARTICLES OF IMPEACHMENT

Preamble

WHEREAS, Kathy Augustine was first elected to the office of State Controller of the State of Nevada in November 1998, and was re-elected to that office in November 2002; and

WHEREAS, On September 22, 2004, Controller Augustine stipulated before the Nevada Commission on Ethics that she willfully violated NRS 281.481(7) as she reasonably should have known that:

1. Causing state employee Jennifer Normington, on state time, to perform functions related to Kathy Augustine's 2002 re-election campaign violated the provisions of NRS 281.481(7);

2. The act of causing computer equipment owned by the State of Nevada and located in the Office of the State Controller to be used for creating, maintaining, storing and printing documents relating to her 2002 re-election campaign violated the provisions of NRS 281.481(7); and

3. The act of causing equipment and facilities, provided by the State of Nevada for use by the Office of the State Controller, to be used for business and purposes related to her 2002 re-election campaign violated the provisions of NRS 281.481(7); and

WHEREAS, Testimony and evidence received by the Assembly seated as the Committee of the Whole on November 10 and 11, 2004, indicated that Controller Augustine knew or should have known that her conduct violated NRS 281.481 (7); and

WHEREAS, Willful violations of chapter 281 of NRS clearly constitute the type of offenses for which impeachment may be appropriate because such violations by a public officer who is removable from office by impeachment only must be reported by the Nevada Commission on Ethics to the appropriate person responsible for commencing impeachment proceedings pursuant to NRS 281.55 I (5)(a); and

WHEREAS, The Assembly finds that the willful violations of NRS 281.481(7) by Controller Augustine and the manner in which she abused her official power demonstrate a lack of honesty, principles and good morals; and

WHEREAS, The Assembly further finds that Controller Augustine violated the public trust and her willful violations of NRS 281.481(7) constitute Misdemeanor or Malfeasance in Office, which warrants adoption of the following Articles of impeachment.

Article I (Misdemeanor or Malfeasance in Office)

While acting in her official capacity as State Controller of the State of Nevada, Kathy Augustine, in violation of the Nevada Ethics in Government Law, has willfully committed Misdemeanor or Malfeasance in Office, to wit:

On or between October 2001, and January 2003, Kathy Augustine willfully violated NRS 281.481 (7), as she reasonably should have known that causing state employee Jennifer Normington, on state time, to perform functions related to Kathy Augustine's 2002 re-election campaign violated the provisions of NRS 281.481(7). Kathy Augustine caused Jennifer Normington, on state time, to organize campaign fundraiser events, give campaign speeches, compile and maintain donor lists, format and mail requests for contributions, design fundraiser invitations, prepare contribution reports for submission to the Secretary of State and maintain a database of Kathy Augustine's campaign contributions.

Wherefore, Kathy Augustine, by such conduct, has committed Misdemeanor or Malfeasance in Office pursuant to Article 7, section 2 of the Nevada Constitution and the laws of the State of Nevada, which warrants impeachment and trial before the Senate.

Article II (Misdemeanor or Malfeasance in Office)

While acting in her official capacity as State Controller of the State of Nevada, Kathy Augustine, in violation of the Nevada Ethics in Government Law, has willfully committed Misdemeanor or Malfeasance in Office, to wit:

On or between October 2001, and January 2003, Kathy Augustine willfully violated NRS 281.481 (7), as she reasonably should have known that the act of causing computer equipment owned by the State of Nevada and located in the Office of the State Controller to be used for creating, maintaining, storing and printing documents relating to her 2002 re-election campaign violated the provisions of NRS 281.481 (7).

Wherefore, Kathy Augustine, by such conduct, has committed Misdemeanor or Malfeasance in Office pursuant to section 2 of Article 7 of the Nevada Constitution and the laws of the State of Nevada, which warrants impeachment and trial before the Senate.

Article III (Misdemeanor or Malfeasance in Office)

While acting in her official capacity as State Controller of the State of Nevada, Kathy Augustine, in violation of the Nevada Ethics in Government Law, has willfully committed Misdemeanor or Malfeasance in Office, to wit:

On or between October 2001, and January 2003, Kathy Augustine willfully violated NRS 281.481 (7), as she reasonably should have known that the act of causing equipment and facilities, provided by the State of Nevada for use by the Office of the State Controller, to be used for business and purposes related to her 2002 re-election campaign violated the provisions of NRS 281.481(7).

Wherefore, Kathy Augustine, by such conduct, has committed Misdemeanor or Malfeasance in Office pursuant to section 2 of Article 7 of the Nevada Constitution and the laws of the State of Nevada, which warrants impeachment and trial before the Senate.