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Lombardo files lawsuit challenging ethics commission fine, censure over use of badge

Lombardo’s attorneys argue the commission is part of the executive branch and legislative appointments violate the constitution’s separation of powers clause.
Tabitha Mueller
Tabitha Mueller
State Government
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Attorneys for Gov. Joe Lombardo have filed a lawsuit appealing the Nevada Commission on Ethics decision to censure and fine the governor for using his Clark County sheriff uniform and badge on the 2022 campaign trail.

The eight-member commission issued the censure and $20,000 fine in July — marking the third largest penalty imposed by the body charged with interpreting and enforcing Nevada’s ethics laws for local and most state employees or elected officials outside the legislative and judicial branches. The Republican governor signaled last month that he would fight the commission’s decision in court.

But the appeal filed Thursday in the First Judicial District Court in Carson City makes a new legal argument — challenging the constitutional authority of the commission itself. The lawsuit states that because some commission members were appointed by the Legislature, the July decision violates the state constitution’s separation of powers principle.

Lombardo’s attorneys argue that the separation of powers clause within the state constitution is violated because half the commission’s members are appointed by the Legislature, even though the commission falls under the executive branch.

“[T]he legislature appoints half the commissioners who serve on the commission (i.e., four of eight),” the appeal reads. “In so doing, the Ethics Law deprives the governor of his exclusive power to see that the laws are faithfully executed and, in turn, violates the separation of powers doctrine.”

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. Based on the results of the investigation, attorneys with the commission imposed a fine for each time Lombardo’s campaign posted an image, published a video or used imagery of Lombardo in his sheriff’s uniform, badge or gun in campaign materials. The calculations of those instances led to a proposed fine of $1.6 million that was reduced to $20,000.

Asked about the decision during an interview last week with Nevada Independent CEO Jon Ralston at the annual policy and politics-focused Texas Tribune Festival in Austin, Texas, Lombardo called it “partisan.”

“There was people involved in this that I feel made decisions based on not the right thing, but partisanship,” Lombardo said. “And that's frustrating to me, and that's why I fight it.”

In 2009, a similar issue arose after the Nevada Supreme Court ruled that lawmakers couldn’t give up the authority to discipline and police themselves to any other branch of government — including the ethics commission, which, since the 1980s, has had jurisdiction over both the Legislature and executive branch.

The court found that the commission falls under the executive branch, and therefore was prohibited from taking disciplinary action against a legislator surrounding “core legislative function,” such as voting and sponsoring bills. The state constitution stipulates that each house of the Legislature “may punish its members for disorderly conduct.”

Ross Armstrong, the executive director of the commission, declined to comment on the pending litigation.

Updated at 3:20 p.m. on 10/2/2023 with a response from Ross Armstrong.

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