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House Ethics Committee finds Berkley violated ethics rules

Shelley Berkley

Sam Morris

The House Ethics Committee has found that Rep. Shelley Berkley “violated House Rules and other laws, rules and standards of conduct.” Berkley is shown here delivering her concession speech Nov. 7, 2012, at Mandalay Bay after losing a Senate race.

Updated Thursday, Dec. 20, 2012 | 4:52 p.m.

After over a year of swirling suspicion, the House Ethics Committee delivered its verdict on the ethics charges against Rep. Shelley Berkley Thursday, finding her guilty of some ethical trangressions, but innocent of those which had been specifically alleged in the public complaints against her.

Berkley had been accused of using her congressional office to lobby for the interests of the kidney care practice operated by her husband, Dr. Larry Lehrner, by petitioning the federal government to keep his firm’s kidney transplant center at University Medical Center in Las Vegas open, and appealing to congressional colleagues not to lower Medicare reimbursement rates for kidney care.

In a five-page report, released Thursday, the House Ethics Committee determined that Berkley had “violated House Rules and other laws, rules and standards of conduct” and was guilty of “improperly using her official position” to lobby the Veterans’ Administration to address a dispute with her husband’s firm concerning overdue payments, upon her husband’s request.

But they also ruled she had not violated house rules “by dispensing special favors or privileges” to her husband, clearing her of wrongdoing associated with her congressional work on Medicare coverage of kidney care and her campaign, along with other members of the Nevada House delegation, to save the UMC kidney transplant center from closure.

The decision was unanimous.

Berkley’s alleged ethics violations became a major concern in her campaign to unseat Republican Sen. Dean Heller, who was appointed to fill out the Senate term of former Nevada Sen. John Ensign, who resigned amid ethics violations last year. Heller defeated Berkley by 12,127 votes in November.

Reacting to the decision, Berkley despaired that the committee waited until after the election to issue its findings. She said she could have won if the decision had been issued earlier.

“I feel OK. I can hold my head up high — I did the right thing and I believe the committee recognized that too,” she told the Sun. “It just cost me an election to the Senate.”

“It’s 90 percent of what I would have wanted,” she said. “The only area of contention was over the VA payments to my husband’s group...that 10 percent I respectfully disagree with.”

Berkley maintained her innocence throughout the campaign and after. She said earlier this month that she welcomed an ethics committee decision in order to clear her name.

But according to the House Ethics committee’s official report, Lehrner contacted Berkley’s office on four separate occasions between April 2008 and December 2010, complaining of specific issues his practice, KSSN, “was having with claims filed with VA, Medicare, or Medicaid.”

Lehrner “often referenced specific dollar amounts,” the report said, which he believed were owed to his practice but had not been paid.

Berkley took action twice in reponse to those issues to help KSSN, the ethics report found.

In an interview Thursday with the Sun, Berkley said that she never gave her husband any special treatment, and pointed out that the only reason she’d even told them to move things along was because the VA was in arrears for over one year on the payments they owed her husband and had stopped responding to his firm’s attempts to make contact. She never requested money outright, and says the committee recognized that.

“There was never any request for reimbursement from my office. The request said: Move the process forward,” she said.

She said at the time, in 2008, they were dealing with several “major problems of doctors not getting paid by Medicare — and when this came up it was no different,” she said.

“I treated my husband no differently than any other constituent,” she said.

The committee report does note that “there was no evidence that Representative Berkley acted with the intent to unduly enrich herself,” and concludes that “Berkley’s activiteis in the healthcare policy realm appear to have been motivated by factors wholly divorced from her family’s financial well-being.”

The report also legitimates Berkley’s concerns that late payments to KSSN would impair patients’ ability to receive services, and notes that Berkley spoke about these concerns — and her husband’s central role in them — openly, including in public testimony before House committees.

But even if her actions were not taken out of malice or intent of personal gain, the committee wrote, Berkley violated the rules nonetheless.

“Ultimately, she was mistaken when she applied these facts to the ethics rules and determined that her course of action was proper,” committee members wrote in their report.

The committee relied heavily on the report of the investigative subcommittee it appointed, which released its report on Dec. 13. The committee made no recommendations for further course of action or censure against Berkley, whose House term ends in two weeks.

One of Berkley’s defenses through the ethics process was that she had not acted alone, but in conjunction with her Nevada delegation colleagues to persuade the Centers for Medicare and Medicaid Services to lobby for keeping open the kidney transplant center at the University Medical Center, for which her husband’s firm held the sole contract.

The committee appears to have partially accepted that explanation.

“While the ISC has concerns about the appearance created by the renewal of KSSN’s contract with UMC...the ISC was simply unable to establish that Rep. Berkley, when she participated in a delegation-wide effort to save a program which had a connection to her husband she did not fully understand, violated the conflict of interest rules,” the committee report said, quoting the study committee’s findings.

The committee ultimately decided that clearer instruction was needed in these cases where members of Congress’ work and the professional interests of their spouses intersect. Earlier this year, the committee confronted a similar issue in the case of Rep. Maxine Waters of California, who was accused of arranging special access to the administration for a bank her husband had a significant financial stake in.

Waters was ultimately cleared of wrongdoing by the ethics committee, though her chief of staff — who happens to be a relative — was censured in its report.

“The Committee...believes the time has come to engage in comprehensive review of the House’s conflicts standards so that they are clear and more easily digested by the House community,” the committee wrote in Berkley’s report.

“The rules have to change to keep up with the reality of the 21st century and the fact that there are more and more women here that are married to successful men — and how do you interact?” Berkley said. “If your spouse is your constituent and they have an issue, are they precluded by virtue of the fact that they are married to a congressperson, from exercising their same rights as anybody else? Do they lose those rights?"

While Berkley acknowledged that the ethics committee did not seem concerned by those issues when they called for a review of the rules, she says many of her colleagues in the House of Representatives are wondering about it aloud.

“My situation is going to be front and center in that discussion,” she said.

From the time the study committee began its investigation in June, it issued three subpoenas, interviewed nine witnesses and reviewed over 108,000 pages of documents in this case. Berkley herself testified before the committee on Dec. 4, one day prior to giving her exit interview to the Las Vegas Sun, during which she would not disclose whether or not she had spoken with the committee.

Mere hours before the report was released, Berkley had still not been told whether it was coming out. The committee’s last hearing before releasing the report, to which Berkley had been invited, was on Thursday.

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