Members of the Nevada Assembly were not happy to impeach the state controller, but her lawyers’ defense strategy left them no choice
Nevada Controller Kathy Augustine, accused of using her state office employees to work on her reelection campaign in 2002, was impeached (indicted) by the Nevada Assembly, whose members considered it an unhappy but necessary duty.
Augustine has been reticent to speak publicly about her troubles or to defend herself, which has seemed to confirm the charges against her. On Oct. 10, she published an essay in the Las Vegas Review-Journal in which she wrote, “I want everyone to know that even my accusers admit that I told them over and over again, ‘Don’t do this on state time.’ The record is clear on that point.”
But her accusers admit no such thing. Speaking for themselves in the Assembly hearing, they told a different tale.
“Repeatedly throughout the entire time I worked with her, she reiterated to me that I better do everything I can to get her reelected because otherwise I wouldn’t have a job,” said her executive assistant, Jennifer Normington.
Normington headed off any impression that it might have been a misunderstanding or miscommunication.
“Given the frequency with which the controller gave me campaign work in the middle of the day with a same-day deadline, it is clear that she was fully cognizant that I was working on her election campaign during state time and on state-owned office equipment,” she said.
Augustine’s former executive assistant, Susan Kennedy, agreed.
“However, at no time did I consider myself a volunteer for Controller Augustine.”
In addition, Augustine had signed a negotiated Sept. 22 document conceding that she had “caused Jennifer Normington, on state time, to perform, from time to time, functions relating” to the 2002 campaign. The same document admitted that state computer equipment was used for Augustine’s campaign.
Augustine’s attorneys wanted the Assembly to act like a court when they were trying to exclude the participation of the Attorney General’s Office. As her lawyer, John Arrascada, said, “The Supreme Court rules of the state of Nevada do not allow lawyers that have a conflict to take off their lawyer hat and put on another hat and then not have a conflict.”
But when it suited them, the lawyers acted less as though they considered the Assembly a court. After a deputy attorney general introduced his investigative file on Augustine as evidence, the Augustine legal team pronounced the proceedings tainted and refused to put on a defense. Raw investigative files, which are full of unconfirmed and unreliable information, are not normally part of a court’s proceedings, and in court the defense would have objected to the introduction of the file but probably still would have made its case.
By declaring the whole Assembly impeachment proceeding “polluted” and refusing to put on a case, the lawyers for Augustine alienated the members of the house and ended any chance of peeling some members away from voting for impeachment. The Assembly members ended up voting unanimously to impeach Augustine.
One former judge said later of the defense strategy, “It’s a pretty risky thing.” But he also said the introduction of the investigative file was a legitimate issue. “At some point it seems to me that certain basic due process has got to be provided. In that file are things that have not been subject to cross-examination by her lawyers, that do not permit her to confront her accusers.”
The decision not to defend Augustine produced television news reports that were devastating for the controller, since they were filled with accusations against her—and nothing to refute them.
Before the legislative proceedings got underway, Augustine had faced the Nevada Ethics Commission, where she accepted a $15,000 fine and said, “I apologize today to the citizens of Nevada for my actions while campaigning for re-election in 2002.”
The Ethics Commission proceedings were well enough received that it was considered likely Augustine would pick up some votes against impeachment in the Assembly and might even be acquitted in the Senate trial. Some sympathy for Augustine had developed, and one agency chief said, “I don’t know what purpose is served by piling on when she’s down.”
The defense conduct in the Assembly made any exploitation of that feeling much less likely, and the change in Augustine’s tone from contrition to defiance has made the Senate trial more problematic as well.
Moreover, the impression created in testimony of an abusive boss made Augustine a much less sympathetic figure. Some lawmakers recalled disagreeable experiences of their own with Augustine when she was a member of the Legislature. It seemed clear that she had little cushion of good will to fall back on when her lawyers’ legal strategy backfired.
Her attorneys have said they might appeal the Legislature’s actions to the courts, but it is an unlikely prospect. Impeachment is solely a legislative function, and state constitutional authority of courts over it is miniscule.
A date for the Senate trial has not yet been set.
Augustine is neither the first state officer to face impeachment nor the first to be the subject of a legislative impeachment inquiry, but she is the first to be impeached.
In 1927, it became known that Nevada Treasurer Ed Malley had participated in a scheme to use funds from the state treasury to invest in oil stocks. Gov. Fred Balzar was able to remove Malley from office without impeachment because the embezzlement revelation caused the revocation of his bond and thus rendered him ineligible to serve as treasurer.
But there is no current requirement for the controller to be bonded. In addition, Augustine’s campaign-related offenses are not the kind of financial misconduct that would merit a bond revocation.