Dana Gentry

(Nevada Current) The Nevada Commission on Ethics in a 5-2 vote Tuesday determined Gov. Joe Lombardo willfully violated the law by featuring his Clark County sheriff’s badge and wearing his Las Vegas Metropolitan Police Department uniform in ads, social media and other materials during his campaign for governor.

The commission had the option to censure, reprimand, or admonish Lombardo. It chose a censure, the most severe sanction of the three. The commission also imposed a $20,000 fine.

Lombardo did not attend the hearing.

“Although we’re gratified that the Commission did not impose the $1.6M+ fine sought by the Executive Director, we’re disappointed in certain aspects of the Commission’s ruling and are in the process of considering all options,” Lombardo’s attorney, Sam Mirkovich of Campbell and Williams, said in a statement emailed to the Current.

The commission granted summary judgment against Lombardo on multiple violations of NRS 281A.400(7), which prohibits officials from using governmental time, property or equipment in campaign efforts.

But it voted Lombardo did not violate NRS 281A.400(2), which prohibits an official from using his position to secure or grant unwarranted privileges, preferences or advantages to benefit himself, or a business entity in which he has a financial interest, or any person to whom he has a commitment in a private capacity.

Two commission members recently appointed by Lombardo – John Moran III and Stan Olsen – cast the only votes against the censure and $20,000 fine, which was far less than the $1.6 million requested by Ethics Commission Executive Director Ross Armstrong for more than 60 separate violations.

“A civil penalty in this amount or even near this amount, would in fact be unprecedented. However, (Lombardo’s) conduct in these matters was unprecedented and therefore requires an equivalent penalty,” Ethics Commission Associate Counsel Elizabeth Bassett asserted during the hearing. “The fines and other penalties imposed by the commission for previous violations of the same ethics law clearly did not deter similar repeated violations by subject.”

“The evidence shows the subject was aware of the requirements of the ethics law and chose to violate the law, nonetheless,” displaying a “knowing and reckless disregard of the ethics law,” Bassett argued.

In September 2021, the commission notified Lombardo his gubernatorial campaign was violating ethics laws by using images of his badge and uniform in materials and ads for the Republican primary, but Lombardo persisted.

“At that point, Governor Lombardo’s position was ‘If I take them down, it’s going to be viewed as a tacit admission,” Lombardo’s attorney J. Colby Williams said when asked why the gubernatorial campaign didn’t cease the violations when notified.

Lombardo rejected offers to settle the case “for much less” than the requested fine, Bassett said.

Williams argued the proposed fine of more than $1.6 million amounted to “inconsistent treatment” because other law enforcement officials have not been similarly treated. He also said the proposed fine was unconstitutional because it violates the excessive fines clause of the state and federal constitutions.

“The disposition of the matter must bear a reasonable relationship to the severity of the violation or alleged violation,” he noted.

Williams asserted Lombardo did not require his officers to turn out for campaign events in uniform, which he said would have been a violation of the federal Hatch Act. The Hatch Act prohibits certain partisan political activity by individuals principally employed by agencies funded in whole or in part by federal loans or grants, including law enforcement.

Williams suggested the ethics commission consider the Hatch Act in deliberations, rather than Nevada ethics law, which he said was vague.

One campaign violation identified in the commission’s exhibits is an advertisement titled “Protect.” One of the first shots in the 90-second ad is of a law enforcement badge. It also features long shots of Lombardo walking – first in his Metro uniform but also in two separate sets of civilian clothes with his badge clearly visible on his belt.

Williams also argued Lombardo’s use of his badge and police uniform in his campaign for governor was a “form of First Amendment expression.”

“He has a First Amendment right to say ‘I am the sheriff of Clark County.’” Bassett countered. “He has a First Amendment right to say, ‘Here’s all the amazing things I’ve done.’ He can say it as much as he wants and he can shout it from the rooftops. He is not allowed to use government property.”

Williams stated the commission presented no evidence that Lombardo’s actions amounted to an “unwarranted advantage” during the race for governor, noting his image was also distributed by media and his opponent.

“Undoubtedly, we hoped it would be beneficial with the public,” he said of Lombardo’s position as sheriff. “But there are undoubtedly members of the public that do not look at the uniform and look at the badge and say ‘Public trust. They’re there to protect me.’  A lot of people feel the opposite way about law enforcement.”

But Bassett said Williams’ interpretation of unwarranted advantage missed the mark, noting the statute required no proof that the use of Lombardo’s official position in his gubernatorial campaign was a benefit.

“The unwarranted advantage is giving the public and the voters the improper and incorrect impression that the subject is being endorsed by a government agency by using government property in campaigns,” she said.

Moran, who once served as chairman of the ethics commission, questioned how Lombardo was expected to shed the mantle of sheriff while campaigning.

“I’m trying to understand an unwarranted advantage because this is a sitting sheriff. That’s his job while he’s campaigning for a different office,” he said.

Commissioner Teresa Lowry noted there’s no requirement in the law that the sheriff wear his uniform all the time.