Nevada Governor Joe Lombardo speaks before a ceremonial signing of Senate Bill 189, the Keeping Kids in School Act, at Ronnow Elementary School Thursday, July 6, 2023. The bill includes a $2 million appropriation for Communities In Schools of Nevada.
Published Tuesday, July 25, 2023 | 5:47 p.m.
Updated Tuesday, July 25, 2023 | 8:08 p.m.
Joe Lombardo as Nevada governor
The Nevada Ethics Commission fined Gov. Joe Lombardo $20,000 and censured him Tuesday after the panel determined his gubernatorial campaign “willfully” engaged in numerous ethics violations stemming from the use of his badge and uniform as then-Clark County sheriff.
The panel voted 4-2 following nearly six hours of arguments between attorneys representing the commission and Lombardo, ruling ultimately the governor had engaged in four violations of ethics law. Elizabeth Bassett, associate counsel for the commission’s executive director, Ross Armstrong, asserted Lombardo’s campaign “knowingly and repeatedly” used a mix of four photos of him donned in his Metro Police uniform in approximately 34 social media posts throughout his gubernatorial campaign.
The ruling comes roughly a week after Lombardo appointed two new members to the commission — former commission chair and Nevada System of Higher Education Regent John Moran III, and former Metro Police officer and ex-state Republican Sen. Stan Olsen — whose terms began July 1. Those two voted against sanctioning the governor. Commissioners Barbara Gruenewald, a Democrat, and vice chair Brian Duffrin, a nonpartisan, were precluded from voting because they served on the review panel that referred the case to the commission, Armstrong told the Sun in an email after the hearing.
The Ethics Commission has eight members — four of whom are appointed by the governor and four appointed by the Legislative Commission — and serve a four-year term.
A censure is a formal statement of disapproval from a public body, but carries with it no legal consequences.
Lombardo’s office did not immediately comment when contacted late Tuesday afternoon.
Campbell & Williams, the law firm representing Lombardo, stated in an email: "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."
Hilary Barrett, spokeswoman for the Nevada State Democratic Party, slammed Lombardo for touting himself as a tough-on-crime candidate while flouting state law.
“At today’s hearing, Joe Lombardo’s own legal team admitted he knowingly used his uniform and badge for the sole purpose of boosting his candidacy,” Barrett said. “From willfully flouting the law, to postponing an ethics hearing just to stack the commission with his own appointees, Lombardo has never acted as if the law applied to him. ‘Law and Order’ has never been more than a campaign slogan to him.”
Each of those 34 social media posts violated two provisions of state law, or 68 violations in total, which left Armstrong to recommend that the commission order Lombardo to pay a record $1.67 million civil fine, be censured by the body and be compelled to establish an ethics officer within the office of the governor.
That notion was rebuffed by Colby Williams, co-founder and senior partner for Campbell & Williams. He argued Lombardo hadn’t engaged in any questionable conduct.
The charges in this case “do not prove by any evidentiary standard” that Lombardo either secured an unwarranted advantage or that he benefited from the use of his uniform, Williams said, noting the recommended historic fine was a “gross example of government overreach.
Bassett, however, pointed to previous cases heard by the commission between 1999 and 2016 in which the use of a sheriff’s badge was central to creating a “visual endorsement” of the candidate, thus resulting in an advantage.
In 2019, while Lombardo was serving as sergeant-at-arms of the Nevada Sheriffs’ and Chiefs’ Association, the Ethics Commission sent a letter about using police garb while campaigning for office, telling the association it had “definitively” concluded no such accoutrement could be used in support or opposition of a political campaign.
According to the commission, a $5,000 fine is levied for the first willful violation, $10,000 for a second, and $25,000 for each violation thereafter.
“A civil penalty in this amount, or even near this amount, would, in fact, be unprecedented,” Bassett said. “However, the subject’s conduct in these matters was unprecedented, and therefore required an equivalent penalty.”
Central to Armstrong’s argument was that the ethics commission had made clear in previous rulings that any use of a badge to campaign for a partisan elective office was a misuse of government property. But Lombardo’s case was different, Williams argued, in that he wasn’t campaigning to win reelection as sheriff, but instead was campaigning for a different partisan office altogether.
That’s an important distinction, Williams said, as in those instances, the accused could “cloak himself in the uniform of the office for which he was running,” whereas Lombardo could not. And even if they were similar, the commission is bound to hear each instance on a case-by-case basis.
Further, Williams cited attack advertisements by then-Gov. Steve Sisolak — the Democrat whom Lombardo bested by about 15,000 votes in November’s election — that showed Lombardo in uniform under the context that he had failed in his capacities as sheriff.
Williams also referenced the federal law Hatch Act, which limits political activities of some federal officeholders but allows certain exceptions in the cases involving law enforcement personnel. For example, the Hatch Act prohibits uniformed personnel to canvass door-to-door or pressure subordinates to campaign or donate on that candidate’s behalf, Williams said.
And while the Hatch Act only applies to those running for a federal office, it offers context to what behavior is allowed, according to Williams.
“Congress has granted elected officials, which Sheriff Lombardo was in his capacity as sheriff, it grants them greater latitude to engage in political activities because their principal employment is that of a political office,” said Williams, who also argued that Lombardo was never technically designated as “off duty” while as sheriff. “And so it prevents them from some of the provisions of the Hatch Act.”
Bassett told commissioners that Lombardo’s campaign was notified on two occasions — in September 2021 and November 2021 — about the potential violations, and that no action was taken to correct the conduct in question. That, she said, showed Lombardo’s team was willfully breaking the law.
“Even after those dates, the subject (Lombardo) continued to post numerous additional photos in his uniform and badge after he received those notices,” Bassett said. “Evidence shows the subject was aware of the requirements of the ethics law, and chose to violate the law, nonetheless.”
If violations involve knowing and reckless disregard for the ethics law, censure of the subject by the commission is appropriate, she added.
Bassett also noted that Lombardo, despite eight years as Clark County sheriff — and therefore an elected official subject to the state’s ethics laws — hadn’t been cited previously in his tenure in public life. He has since completed ethics training along with the entire governor’s office staff, Bassett said.
Williams had also argued Lombardo had the right to campaign in uniform under the First Amendment; the decision to wear his uniform amounted to free expression.
Lombardo was well within his right to speak about his time as sheriff, Bassett said. But that still doesn’t mean he’s allowed to use property that belonged to Metro Police — and by extension Clark County voters.
“He has a First Amendment right to say, ‘I am the sheriff of Clark County,’ and he has the First Amendment right to say ‘here’s all the amazing things I’ve done,’ ” Bassett retorted. “He can say it as much as he wants, he can shout it from the rooftops. He is not allowed to use government property to say those things.”
The attorneys on both sides said current state law was unclear because no state statutes about a sheriff’s political conduct exists. Bassett said because of the lack of such law, the Ethics Commission had no choice but to act based on its own precedent.
For his part, Williams noted lawmakers could have acted in the past but so far have chosen not to address the issue.
“If the Legislature believed that a sheriff engaging in political activities was so problematic and created appearances of impropriety and all of these other violations of the public trust you’ve heard about, there’s an easy way to solve it: make sheriff a resign-to-run position,” Williams said. “Everyone knows — it’s not disputed — that sheriff is the only elected office that requires that officeholder to wear a uniform, to be on-call 24 hours a day to respond to emergencies.”
The body decided to take up the issue in October 2021 after Matthew DeFalco, a Democratic lawyer with ties to Sisolak’s campaign, filed a complaint. Contacted by the Sun in June to discuss the complaint further in detail, DeFalco said he had since asked the commission twice to rescind his complaint, but the body refused.
“I did file the complaint,” DeFalco said. “I was asked to file the complaint. I did not personally write the complaint — I was given a letter to submit with it. I personally asked the commission to withdraw the complaint, but on both occasions, the commission refused to allow me to withdraw the complaint. In hindsight, if I had a redo, I would not have done this.”
DeFalco declined to clarify his statement further.
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