We're frustrated that they didn't move it onto a judge or someone to actually get more clarification rather than just an inside decision about what the statute meant. We need election law experts to weigh in on this. —Maryann Martindale, Alliance for a Better Utah
SALT LAKE CITY — The state elections office will not seek a civil complaint against Utah Attorney General John Swallow but will make its report available for other investigations for any possible criminal charges.
Lt. Gov. Spencer Cox said Wednesday the statutory remedy for state election law violations was already met with Swallow's decision to resign.
"We have prosecuted this to the extent that we can," Cox said. "I don't know much more that we can do."
If a court were to find that Swallow, a first-term Republican, broke the election code, a judge would void the election and declare the office vacant. Cox said the court process would take about six months and cost more than $200,000.
Cox said he can't find anywhere in state law that would allow a special election to replace Swallow, as Democrats have called for.
Utah Democratic Party Chairman Jim Dabakis backed off that position Wednesday after a Republican state senator suggested that Gov. Gary Herbert appoint a caretaker as attorney general who won't seek election in 2014.
"We're obviously concerned with the findings of the report," Cox said. He said he will make the report available to ongoing investigations by two county attorneys and the Utah House special committee.
Alleged elections violations are not part of the joint county investigation, but Salt Lake County District Attorney Sim Gill said he and Davis County Attorney Troy Rawlings want to look at the report.
"We will see exactly where it fits into our ongoing criminal investigation that we have currently open," he said.
Gill estimated the investigation, conducted with help from the FBI and the Utah Department of Public Safety, is 50 percent complete.
It doesn't appear, however, that the Utah House committee will continue its work. Chairman Rep. Jim Dunnigan, R-Taylorsville, said the nine-member panel plans to meet Dec. 7 to discuss "winding down."
Last Thursday, Swallow announced his resignation effective Dec. 3 at 12:01 a.m., citing the strain that the Utah House special committee investigation was having on him, his family and his finances. That committee is conducting a broad inquiry into various allegations leveled at Swallow and will recommend changes to state election law.
The state elections office released its report the day after Swallow made his announcement, outlining five instances of probable cause that Swallow violated campaign finance reporting law.
The special counsel found that Swallow failed to disclose that he received income totaling $58,117 from Check City, P-Solutions, Guidant Strategies and RMR Consulting. He also omitted his role as manager of SSV Management and P-Solutions, a limited liability company and a consulting firm, respectively.
The omissions were "planned and deliberate" on two separate campaign filings — one on March 9, 2012, and the other March 15, 2012, according to the report.
The nearly four-month investigation found conflicts between Swallow's statements and the evidence, saying "implausible explanations raise questions and suspicions about his credibility."
Swallow didn't fully cooperate with the investigation and tried to influence the outcome by altering witness statements, the report said.
The state Republican Party intends to hold a Central Committee meeting Dec. 14 to choose three nominees for Herbert's consideration to replace Swallow. The governor's choice would face election in 2014.
Cox said that according to state law, that process would be the same whether Swallow resigned or a court removed him from office.
Sen. John Valentine, R-Orem, suggested that the governor should choose someone who will "clean house" for the next year and then not run for election. He also said he won't vie for the job.
"The biggest thing we now have to establish is trust," he said. "That's what we've lost."
At a Tuesday press conference, Dabakis and other Democratic leaders argued that Swallow wasn't legally elected, and because he can't resign from an office he never held, Republicans shouldn't get to pick his replacement. They said voters should choose the next attorney general in a special election.
Cox called Dabakis' reading of the law "Jedi mind tricks." He said he consulted with five attorneys who can't go through the "mental gymnastics" to arrive at the same conclusion "that John Swallow never existed or never came into office."
"They're just wrong," Cox said of the Democrats.
Also, he said a statewide special election would cost about $3 million.
Dabakis said he's willing to let his argument go if Herbert would agree to Valentine's proposal to appoint a caretaker until the 2014 election. He said it's a better solution than going to court or having a political person in the office.
"We need a statesman. We don't need a political hack," he said.
Maryann Martindale, executive director of the Alliance for a Better Utah, said she wasn't surprised by the lieutenant governor's decision. Better Utah filed the complaint against Swallow that led to the investigation.
"We're frustrated that they didn't move it on to a judge or someone to actually get more clarification rather than just an inside decision about what the statute meant," she said. "We need election law experts to weigh in on this."
Martindale said it's good that the report will go to other investigations. "They should be vetting this for other charges. There may be criminal charges associated with this," she said.
As the plaintiff in the case, she said she believes Better Utah has some rights to bring its own civil case against Swallow but doesn't have the money to pursue it.
The special counsel recommended the lieutenant governor turn the report over to a judge to consider voiding the election and declaring the office vacant.
"Swallow's explanations for these acts and omissions, when considered in the light of internal inconsistencies and conflicting evidence, raise numerous questions of credibility that should be assessed by a finder of fact applying the applicable law," the report said.
Cox said he's not going against the recommendation because the special counsel reached its conclusions before Swallow resigned, and the counsel now agrees that the law is satisfied.
Contributing: Richard Piatt, Peter Samore
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