Clark County Sheriff Joe Lombardo delivers the State of the Department address at the Smith Center Wednesday, Feb. 6, 2019.
Wednesday, June 7, 2023 | 3:55 p.m.
The head of a state watchdog agency is alleging Gov. Joe Lombardo improperly used his uniform and badge while as Clark County Sheriff to campaign for governor and is recommending the largest fine in state history for the alleged ethics violations.
Ross Armstrong, executive director of the Nevada Commission on Ethics, is recommending the governor face a civil fine of $1.67 million.
He is also asking that an ethics officer be designated to the governor’s office after an investigation found 34 alleged violations of Lombardo wearing his uniform or badge while stumping for the state’s chief executive position.
A final judgment is expected when the eight-member panel meets Tuesday in Reno.
While Armstrong in filings asserts Lombardo willfully and knowingly disregarded the state’s so-called “Ethics Law,” Lombardo’s attorney wrote the complaints against the governor contain “several glaring legal errors” amounting to a “staggering” amount of administrative overreach.
“The Executive Director’s unlawful attempt to extract a seven-figure fine from Governor Lombardo should serve as a glaring red flag to the Commission about the other positions that are advanced in the Motion,” Philip Erwin, an attorney for the Campbell & Williams law firm, wrote in an April 23 filing on Lombardo’s behalf. The possible sanctions arise from an October 2021 complaint filed by Matthew DeFalco, a Democratic lawyer with ties to several local campaigns, alleging that by using the sheriff’s uniform in photos and videos posted to Lombardo’s campaign website, the then-top cop of Clark County used his public position to secure privileges for himself and also used government property to benefit his personal interest.
When contacted Tuesday to discuss the complaint further in detail, DeFalco said he has 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.
Armstrong asserts the commission has several cases of established precedent clearly outlining the use of a police uniform or other accoutrements to support one’s own political campaign.
In various filings throughout the case file — spanning over 450 pages — the commission points to rulings in 1999 and 2014 that such imagery of a sheriff’s badge can constitute as a “visual endorsement” of the candidate, thus resulting in an advantage for them.
“Nonetheless, Lombardo posted numerous photographs of himself wearing his Sheriff’s uniform and badge on his campaign social media accounts in support of his campaign to be elected to the position of the Governor of Nevada,” wrote Elizabeth Bassett, an attorney for the commission, in a March 22 filing. “The Commission has therefore definitively held that public officers, such as Lombardo, may not use government property, such as uniforms or badges, in support of their own campaigns.”
The $1.665 million fine was determined because each of the 34 alleged violations flout two subsections of NRS 281A.400, and that because each offense violates two NRS statutes, the potential fine Lombardo faces reflects 68 violations. 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.
Lombardo, a first-term Republican, was Clark County Sheriff for eight years and began his term in 2014 after having worked at Metro Police since 1988. He bested Democrat Gov. Steve Sisolak by 1.51 percentage points, or roughly 15,000 votes in November’s general election.
“Joe Lombardo’s flagrant violation of ethics rules — and repeated disregard for warnings against — is nothing more than his arrogance in action,” Nevada State Democratic Party Executive Director Hilary Barrett said in a statement. “Despite centering his campaign around law and order, Lombardo clearly believes he is above the law. Just months into his term, the governor has consistently proven law and order is nothing more than a talking point. Political gain is always his first priority.”
Attorneys for Lombardo argue that such a penalty “clearly” violates excessive fine clauses in both the U.S. and Nevada constitutions and a separate section of state law that only permits the commission to impose civil penalties for three willful violations. Further, Lombardo’s lawyers maintain rather than separate, distinct, photos of Lombardo in his sheriff’s uniform, the campaign posted just four “stock” images that “were merely re-posted on social media from time-to-time.”
Even if Lombardo were fined for each alleged violation — the $1.6 cumulative fine, his attorneys argue, is frivolous.
“(The) exorbitant demand for civil penalties amounting to $1.665 million (as opposed to the $790,000 anticipated by Governor Lombardo), there can be no doubt that the Executive Director’s request is legally defective in multiple respects,” Erwin wrote in the April 23 filing.
Former Lt. Gov. Mark Hutchison, who served as chair of the Ethics Commission for six years and served as chair of Lombardo’s campaign, told the Sun in a phone interview Wednesday that despite Lombardo appearing in his sheriff’s uniform in photos, nothing in state law nor Metro’s code of conduct prohibit him from doing so.
“I have always found the commission to be, I think, fair and sought to be impartial,” Hutchison said. This complaint, and certainly the fine that the executive director is seeking to impose, strikes me as anything but fair and anything but impartial. And it’s unfortunate because I think it’s really going to undermine the trust that the public — and certainly public officials — have in the commission.
“You just can’t justify this kind of action, particularly the fine that the executive director is seeking to impose.”
To date, the steepest fine ever imposed by the state Ethics Commission was when former State Controller Kathy Augustine was fined $15,000, Hutchison said.
Armstrong notes in his findings that the Nevada Legislature has declined to make the position of sheriff a so-called “resign to run position,” meaning Lombardo was allowed to stay on as sheriff throughout his gubernatorial campaign. Armstrong also notes a sheriff in Nevada is never considered off duty.
Further, exhibit 35 of Section 2/114.00 of Metro’s policy manual states LVMPD employees are allowed to appear in uniform for their own campaign photographs and doing so does not constitute an endorsement.
Given all that, Hutchison said he expects Lombardo to be cleared of any alleged wrongdoing.
“I would expect a commission to do the right thing,” Hutchison said. “This is the executive director’s recommendation. I think once the commission convenes and has a hearing on this and understands just the unprecedented unparalleled nature of the request, and really sees the full evidence and understands the law, I don’t think the commission is going to do anything that even resembles what the executive director is seeking here.”
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.
David Damore, chair of the UNLV political science department said the severe fine seems to be a result from ignoring their guidance sent to Lombardo and the Sheriffs’ and Chiefs’ Association.
“It appears that the severity of the commission’s actions are a direct response to the lack of compliance with the 2019 letter to the Nevada Sheriffs’ and Chiefs’ Association clarifying the commission’s interpretation of state ethics law that, prior to that point, had been ambiguity about the issue,” Damore said in a text message. ”But the language in the letter is quite clear.”
