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October 22, 2017

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Uncertain job description makes recruiting difficult for special counsel in Brooks expulsion case


Sam Morris / Las Vegas Sun

Assemblyman William Horne announces the appointment of a select committee to investigate whether Assemblyman Steven Brooks is fit to serve office, Thursday, Feb. 7, 2013 during the 2013 legislative session in Carson City.

Assemblyman Steven Brooks - Feb. 7, 2013

Assemblyman Steven Brooks hugs Assemblyman Pat Hickey before a meeting Thursday, Feb. 7, 2013 during the 2013 legislative session in Carson City. Launch slideshow »

It may be the biggest job in Nevada right now that few actually want.

The search to find a special counsel to present evidence on whether troubled Assemblyman Steven Brooks is fit to serve in the Legislature is slow-going, although legislative leaders say they are close to making a selection.

Initial overtures to some of Nevada’s leading lawyers have been turned down, either because they were busy with other work or because they worried such a role may affect their firm’s lobbying efforts.

But legislative leaders have a somewhat difficult sell to persuade a lawyer to step into an untested arena, build a case quickly — Assembly Majority Leader William Horne has said he wants it to take no longer than a week — and manage the politics that are certain to surround the Legislature’s first modern-day effort to expel a duly-elected member.

“It’s not easy,” said Legislative Counsel Bureau Director Rick Combs. “And, yes, I would say there is limited upside to the job.”

Brooks was arrested on Jan. 19 on allegations he threatened the life of Speaker Marilyn Kirkpatrick, D-North Las Vegas. He was found with a gun and ammunition in his car. Since then, he has been arrested a second time on charges of domestic battery and was detained by police for a psychiatric evaluation after a disturbance involving a sword.

Brooks has been banned from the Legislative Building as the select committee moves forward with an investigation into whether he can continue serving in the Legislature.

So far, the select committee has approved a limited set of rules, which gives the chairman broad powers.

Under the rules, the special independent counsel must accept complaints about any lawmaker.

“The special independent counsel must conduct a preliminary investigation of complaints received to determine whether the committee has jurisdiction over the matter and whether there is sufficient information to cause the committee to conduct a full investigation of the matter,” the rules said.

Other than that, there is little guidance on what type of evidence should be gathered and then presented that would be relevant to the question of whether a member should be allowed to continue serving.

In this case, Horne has said he wants to investigate past troubling behavior allegedly exhibited by Brooks that is unrelated to his arrest.

That can open a wide realm of ethical conduct involving Brooks’ role as a public official and his relationship with lobbyists.

And it could involve behavior similar to what other lawmakers have engaged in, resulting in a political protection process.

Such criticisms were lobbed at the impeachment trial of former Controller Kathy Augustine in 2004. Augustine was tried on three counts of violating ethics laws by using her state office employees and equipment for political work.

The Assembly impeached her on three counts, but the Senate found her innocent on two counts and censured her on a third count.

At the time, the special prosecutor brought in to try the case expressed frustration at the political nature of the proceedings. At the time, some lawmakers on the panel questioned whether some of their own conduct could be interpreted as a violation of ethics laws.

2013 Legislative Session - Assemblyman Brooks

Assemblyman Steven Brooks is sworn in along with the rest of the assembly on the first day of the 2013 legislative session Monday, Feb. 4, 2013 in Carson City. Launch slideshow »

"The best forum for this trial would have been the typical criminal jury trial," prosecutor Dan Greco told the Reno Gazette-Journal at the time. "Ordinary lay citizens would be much more amenable to condemning these charges than would elected officials.

"I was disappointed but not shocked. I respectfully disagree with the Senate's decision, but, hey, this is a different world. It's not a criminal courtroom."

One former lawmaker who participated in the impeachment said he, too, was surprised at the process.

“What I was told was it was a political proceeding, not a judicial proceeding,” he said.

In this case, the special counsel will present evidence to the select committee, which will make a recommendation to the full Assembly about whether to expel Brooks. A two-thirds vote of the Assembly is required to expel a member.

While some initial overtures have been rejected, Assembly Minority Leader Pat Hickey, R-Reno, said he would like to see a seasoned “statesman” be chosen as special counsel.

“If it were a senior statesman-type figure, no harm could come to his reputation for participating in the process,” Hickey said. “He would not only be competent but fair.”

Combs said potential candidates seem to fall into two categories: young defense or prosecuting attorneys seeking name recognition and more experienced lawyers who specialize in such investigations.

“You either have the lawyers who come cheap and want to do it for name recognition or those who specialize in this kind of thing and their charges reflect that,” he said.

No budget has been set for the special counsel’s salary, Combs said. The money will come from the appropriations made to fund the legislative session.

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