Wednesday, September 14, 2005
Copyright © Las Vegas Review-Journal

Judge rules Perkins didn't break federal law

Richard Perkins Henderson deputy police chief plans to run for governor

An administrative law judge ruled Tuesday that Assembly Speaker Richard Perkins did not violate the federal Hatch Act simply by serving as Henderson's deputy police chief at the same time he was running for re-election.

In a 22-page opinion for the Merit Systems Protection Board, Judge William G. Kocol found that the city's compliance program removed Perkins from any interaction with federal funds, and thus kept him in compliance with the law.

"I'm ecstatic," said Perkins, who is expected to seek the Democratic nomination for governor next year. "I've always believed that this was a political witch hunt."

Kocol lauded the compliance program established by the city and police department and scoffed at the notion made by the federal Office of Special Counsel that it was a "purported" compliance program.

"Instead of discounting these efforts, public employers should be encouraged to devise programs that seek to achieve compliance with the Hatch Act while retaining full constitutional freedoms for state and local employees," the judge wrote.

The Hatch Act, which prohibits partisan activity by those who administer federal money or programs, helps to keep the separation of powers among executive, legislative and judicial branches of government.

The Office of Special Counsel, the federal agency which enforces the act, found Perkins in violation based, in part, on the premise that he oversaw a division that might include programs that receive federal funds, and also because he served as acting chief of the entire department on two occasions.

A citizen's query led to the initial investigation when Perkins filed for re-election to his Assembly seat in Henderson in 2002.

A local government watchdog, Knight Allen, sent the office additional information after Perkins filed for re-election again in 2004.

"I have no problem with the judge saying that how they've restructured it is OK," Allen said when informed of the opinion Tuesday.

But Allen found it troubling that the judge stated the Hatch Act must be applied to recognize a person's First Amendment right to political speech and the rights of individuals to participate in the political process.

"The judge should keep his nose out of something he doesn't understand," Allen said.

Office of Special Counsel spokeswoman Cathy Deeds said Tuesday she had not learned of the opinion and that the office would have no comment.

Steve Ross, the Washington-based attorney representing the city of Henderson and its police department in the matter, will file a request that the Office of Special Counsel pay attorney's fees.

Henderson City Attorney Shauna Hughes said Perkins has already submitted $35,000 to the city to cover legal expenses. Mayor Jim Gibson, also expected to seek the Democratic nomination for governor, had questioned the expenditure of taxpayer money on the Hatch Act defense, leading Perkins to pick up the tab.

Perkins has also subsequently hired his own attorney, Lanny Breuer of Washington firm Covington and Burling.

Breuer, who served as special counsel to President Clinton, could not be reached Tuesday.

Ross, who specializes in Hatch Act cases, called the Perkins opinion "as complete a decision in favor of the Police Department, the city and Mr. Perkins as one can imagine a judge rendering."

After the Office of Special Counsel found Perkins in violation of the law, he appealed to the Merit Systems Protection Board.

One line of defense was that, after the initial query from the office in 2002, then-Police Chief Mike Mayberry immediately notified Perkins in writing that he was to have no future contact with federal programs.

Mayberry, now retired, said he felt vindicated by the opinion.

"From the first day that I heard from the Office of Special Counsel, I made sure that the Police Department did every single thing that they asked me to do," Mayberry said. "As the years went by, the office became more and more intrusive; and although we complied with everything they ever asked for, it was never enough.

"They still went after Richard."

Perkins has argued special counsel Scott J. Bloch targeted him as a high-ranking Democratic official in Nevada after Bloch had received criticism for actions he took after his nomination to the post by President Bush in 2003.

Bloch was the former deputy director and counsel for the Task Force for Faith-Based and Community Initiatives in the Bush administration.

Bloch was criticized in 2004 for removing job protections for gay and lesbian federal employees. This year, his office was criticized by public employee groups for dumping almost 1,000 whistle-blower cases filed with his office.

Mayberry said he found a lack of checks and balances in the Office of Special Counsel and said he began to believe the case against Perkins was "politically motivated."

Both Hughes and Ross said the opinion was clear-cut, and Hughes said she thought Perkins would be able to win his attorney's fees.

"The decision has no ambiguity at all," Ross added.

The Office of Special Counsel can appeal the judge's ruling, although Ross said "there's no basis."

"The bottom line is what this decision does is reject an approach that OSC wanted to take which have improperly allowed the federal government to tell the citizens of Nevada who can and can't serve in their local government," Ross said.

Perkins said the ruling confirms for him that Nevada can have a citizens Legislature with police officers, teachers and firefighters holding some of the seats.

The city of Henderson was concerned about the potential loss of federal grant money if Perkins was determined to be in violation of the act.

"I don't think that we have any penalty that we have to look forward to now," City Manager Phil Speight said.

Perkins said he was also happy to have the issue resolved before he launches his gubernatorial campaign with a formal announcement this month.

Gibson who will face Perkins in the Democratic primary for governor next year, could not be reached Tuesday.

Senate Minority Leader Dina Titus, a declared Democratic candidate in that race, had no comment on the opinion.