Impeachment Recommended

A legislative committee Friday recommended impeaching University of Nebraska Regent David Hergert for violating election laws during his 2004 campaign.

The special committee voted 8-3 to recommend impeachment to the Legislature's Executive Board, which will then have to vote whether to send a resolution calling for impeachment to the full Legislature. That vote is expected next week.

The Committee Vote

Voting Yes:
Senators Tom Baker of Trenton;
Chris Beutler of Lincoln;
Ernie Chambers of Omaha;
Mike Flood of Norfolk;
Vickie McDonald of St. Paul;
DiAnna Schimek of Lincoln;
Ed Schrock of Elm Creek;
Nancy Thompson of Omaha.

Voting No:
Senators Pat Bourne of Omaha;
Pat Engel of South Sioux City
LeRoy Louden of Ellsworth.

The committee made the decision despite a report from a lawyer it hired that concluded lawmakers would have no grounds on which to impeach Hergert.

The 43-page report by attorney Clarence Mock III was released Friday.

"Though Hergert's reprehensible conduct cannot be excused as merely negligent and instead appears to have violated both Nebraska civil and criminal law, we believe the Nebraska Supreme Court would ultimately hold Hergert has not committed an impeachable offense," Mock wrote.

Mock concluded that the high court, which would try the case if the Legislature votes to impeach, would rule that Hergert's illegal conduct occurred before he took office and therefore did not qualify for impeachment.

Key to the case is the period from Jan. 4 through Jan. 11, 2005.

A State Patrol report on Hergert released earlier this week said Hergert might have broken the law by filing a false campaign financial statement with the state Accountability and Disclosure Commission on Jan. 11 -- five days after Hergert took office.

According to the patrol report, Hergert signed the report Jan. 4. He was sworn in Jan. 6 "Hergert's conduct before completing the oath of office on Jan. 6, 2005, was simply not committed 'in office' -- no matter how morally repugnant or even unlawful,"' Mock wrote.

"We believe the Supreme Court will interpret the phrase 'in office' to limit the Legislature's power to impeach only conduct occurring after a candidate has been elected and qualified for office," Mock said. "Even if the Supreme Court were inclined to stretch the meaning of the term `in office' beyond its common usage, the court most likely hold -- based on common methods of constitutional interpretation and the reasoning of other courts -- none of Hergert's conduct occurring before Hergert assumed the duties of regent could form the basis for an impeachable offense, because the conduct was not 'related' to the duties of a regent."

The Current Count

According to an Associated Press survey Friday, 20 state senators are undecided about whether to impeach Hergert. At least seven of them would have to ultimately decide in favor of his ouster for an impeachment to happen.

Sixteen of 49 senators said they would vote to impeach Hergert. Two more said they were leaning that way. It would take 25 votes to impeach.

The last time anyone was impeached in Nebraska was 22 years ago. Attorney General Paul Douglas was impeached for his dealing with the head of a failed savings and loan. He was acquitted by the state Supreme Court but resigned after having his law license suspended.

But Senator Chris Beutler of Lincoln, who voted to recommend impeachment, said Hergert violated his oath of office by swearing that he did "not influence in any way the vote of any elector."

Beutler noted that Hergert's purposely underestimating how much he would spend in the general election denied incumbent Regent Don Blank matching state funds that could have helped him counter Hergert's ad campaign against him. Blank, who won the primary by 18 percentage points, lost the general election by 11 percentage points.

Senator Pat Bourne of Omaha, who headed the committee, said he did not believe Hergert's violations rose to the level calling for impeachment.

Mock's conclusions contrasted those of Omaha Senator Ernie Chambers, who sent lawmakers a 49-page memo last year outlining his case for impeaching Hergert.

Chambers, who also voted to recommend impeachment, cited several cases, including a 2001 ruling in which the high court said Madison County Judge Richard Krepela could be disciplined for altering a copy of a police report given to defense lawyers in a murder case while he was a prosecutor.

"The clear indications from these and other cases ... is that the court will rule that ... offenses committed by a candidate in connection with procuring a constitutional office are impeachable," Chambers said.

Hergert reached a settlement with the Accountability and Disclosure Commission last year in which he acknowledged accepting an illegal campaign loan and failing to report a late contribution and file two affidavits on time. He agreed to pay $33,512.10 in fines but not face any criminal charges.

Under the law, candidates for state offices have voluntary spending caps. For regents races, the cap is $25,000 for the primary and $50,000 overall.

Those who agree to abide by the limits qualify for public funds if their opponents exceed the cap.

Hergert did not agree to the cap and spent $65,000 in the 2004 primary, thus qualifying Blank for $40,000 in public funds.

Hergert, an agribusinessman from Mitchell, then estimated that he would spend $40,000 for the general election.

Hergert acknowledged that he exceeded the cap but did not notify the commission by the deadline, thus depriving Blank of $15,000 in matching funds in the closing days of the campaign.

Hergert spent much of his money on advertising that attacked Blank.

After the election, Hergert reported spending nearly $90,000 on the campaign -- more than twice his estimate.

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