Attorneys with the Nevada Commission on Ethics are recommending the panel find that Gov. Joe Lombardo violated state law and be assessed an unprecedented $1.6 million fine for using his Clark County Sheriff uniform and badge while running for governor in 2022.

A legal analysis submitted ahead of a June 13 judgment hearing by ethics commission attorneys cites 34 distinct ethics law violations of two state statutes leading to 68 violations. The analysis recommended the commission censure Lombardo, designate an ethics officer within the governor’s office and impose a more than $1.6 million fine based on multiple social media posts and other election material produced during Lombardo’s successful campaign for governor last year. 

In a response brief included in the documents ahead of the hearing, attorneys representing Lombardo called the alleged violations of state ethics law “relatively inconsequential” and described the commission’s approach the “equivalent of using a sledgehammer to swat a fly.”

The issue of Lombardo’s use of so-called office accouterments in his campaign for governor arose after two complaints were filed in 2021, kicking off a multiyear investigatory process by the state ethics commission, an eight-member body appointed by the governor and Legislative Commission charged with interpreting and enforcing Nevada’s ethics laws. The high-profile judgment hearing scheduled for next week against the governor has thrust the typically quiet state board into the spotlight and raised questions from Lombardo supporters about the fairness of the proposed penalties.

The decision to move forward with a judgment hearing also led to the resignation of Commissioner Damian Sheets, an attorney appointed to the commission by former Gov. Steve Sisolak in January 2020. In a May 17 letter obtained by The Nevada Independent, Sheets called the investigation “unacceptable” and wrote that though the commission is “supposed to investigate complaints without bias, prejudice, or preference, the Commission's recent actions have shown it has little desire to do so.”

“To somehow claim that a gubernatorial candidate who was the current Clark County Sheriff should be prohibited from discussing with or showing the public his high ranking law enforcement service to the community was preposterous and, in my opinion, such a proposition was particularly offensive considering the complaints about others that the Commission elected not to investigate, even after concluding there was jurisdiction to do so,” Sheets wrote in his resignation letter to the commission’s executive director.

In a phone call Wednesday morning, Democratic campaign consultant Matthew DeFalco told The Nevada Independent he had filed one of the two complaints about Lombardo’s use of his sheriff’s badge and other markers of office at the request of others and had tried to rescind it twice to no avail.

DeFalco did not say why he wanted to rescind his complaint.

Attorneys representing Lombardo and the commission will present arguments to the full ethics commission board during the judgment hearing June 13 in what could be described as a mini-trial. Evaluations and rulings from the board occur on a case-by-case basis to account for nuance and different situations.

Following the judgment hearing, members will issue a ruling on whether Lombardo violated state law, and all parties will have the opportunity to challenge the ruling in the state’s court system. 

The motion for summary judgment from commission attorneys addresses a provision within state law, stipulating that public officials and employees cannot use government time, property, equipment or other resources to benefit themselves or anyone else. 

“Public officers and employees have a responsibility to commit themselves to avoid conflicts between their private interests and the public they serve under the Ethics Law,” attorneys wrote in the motion. 

The attorneys noted the commission can fine up to $5,000 for a first willful violation of state law, $10,000 for a separate wilful violation and $25,000 for a third violation. The analysis imposed a fine for each time Lombardo’s campaign posted an image, published a video or used imagery of Lombardo in his uniform, badge or gun in campaign materials. The calculations of those instances led to a total fine of $1.6 million.

“The vast number of times the uniform and badge were used in campaign materials increases the seriousness of the violation. There are 34 distinct uses attached to this case,” ethics commission attorneys wrote. “Adding to the seriousness of Lombardo’s violations of the Ethics Law is the evidence that he committed them knowingly.”

In July 2021, Lombardo’s campaign strategist, Ryan Erwin, told The Nevada Independent that Lombardo is a police officer and sheriff, and Nevada voters were entitled to know and see what he does for a living. 

“Judges regularly appear in robes, teachers in classrooms, and prosecutors in courtrooms as part of their campaign materials – all are public employees in positions of trust,” Erwin said. “Singling out law enforcement from other positions of public trust makes no sense.”

In a Wednesday statement, the Nevada State Democratic Party condemned Lombardo’s “flagrant violation of ethics rules.”

 "Despite centering his campaign around law and order, Lombardo clearly believes he is above the law,” Nevada State Democratic Party Executive Director Hilary Barrett said.

But the law is mum on whether an officer or other public official using their uniform or badge while campaigning presents an actual conflict of interest, and the law is also ambiguous about the use of sheriff’s office accouterments in a campaign for a separate office. 

Attorneys representing Lombardo argued that the interpretation of statute by ethics commission attorneys is vague and “no state law, code or policy prohibits it.” They added that the $1.6 million in civil penalties sought would violate state and federal excessive fines constitutional clauses. 

Attorney Sam Mirkovich, who is representing Lombardo, said in an emailed statement that the complaints against Lombardo suffer from multiple defects, including the request that the commission impose a fine against Gov. Lombardo in excess of $1.6 million — an amount Mirkovich said has never been sought or imposed in the history of the commission. 

“Because the statutes governing the Commission require it to treat similar cases in a similar manner, the aberrational treatment of Governor Lombardo will certainly be a focus of the upcoming hearing,” Mirkovich said. 

Former lieutenant governor and past ethics commission chairman Mark Hutchison — a longtime Lombardo supporter — said in an interview Wednesday that the $1.6 million fine has no precedent, as the commission’s largest ever assessed fine in its history was only $15,000. 

“The commission’s complaint and the unprecedented punishment it seeks to impose against the governor undermines the foundational principles the commission seeks to promote,” he said.

This is not the first time the ethics commission has weighed in on the issue of using accouterments of the sheriff’s office in campaigns. The commission has penned at least three orders during the past seven years addressing sheriffs’ abilities to use official uniforms, badges and “other physical accouterments” of the office to support their re-election campaigns — including one that prompted the commission to reach out to the state sheriffs' association in an attempt to prevent the issue from arising again.

The most recent ruling on the matter by the commission came in 2018, when the panel reviewed then-Storey County Sheriff Gerald Antinoro’s decision to wear his sheriff uniform during debates and in campaign materials while running for re-election. At that time, the commission determined Antinoro had not violated ethics law, citing prior precedent as well as Antionoro’s lack of knowledge about rules and regulations.

But the commission noted in its decision that an elected sheriff’s use of official accouterments of office to support re-election creates an “appearance of impropriety” and violates the state’s ethics law, a point it underscored by sending a letter to the Nevada Sheriffs’ and Chiefs’ Association recommending the association inform its members of the ethics commission’s position on the matter.

In the past, lawmakers have attempted to address the ambiguity in state statutes, though no legislation has been enacted. During the 2021 legislative session, then-Assemblywoman Robin Titus (R-Wellington) proposed a bill, AB218, that would have allowed sheriffs to use physical accouterments in campaigns. Though the bill received a hearing, it died without receiving a vote.

This story was updated at 1:35 p.m. on Wednesday, June. 7, 2023, to include a statement from the Nevada Democratic Party.

Editor’s Note: Campbell & Williams, the law firm representing Gov. Joe Lombardo in this case, has in the past provided The Nevada Independent with pro bono legal services and advice.