As soon as the polls closed at 8 p.m. tonight, Lt. Gov. Gary Herbert announced he was referring an elections complaint from state treasurer candidate Richard Ellis to the attorney general's office for further investigation.
Ellis, who alleges his GOP primary opponent, Rep. Mark Walker, R-Sandy, illegally offered him a job to drop out of the race, had taken the lieutenant governor to the state Supreme Court in an unsuccessful attempt to force a decision before the election.
"I'm not going to allow the lieutenant governor's office to be used as a pawn," Herbert told the Deseret News today, saying he might have acted sooner had Ellis not waited nearly three months to file the complaint.
"It would have look a little less squirrelly," the lieutenant governor said.
Herbert said he doesn't want to set a precedent that would allow a candidate to "game the system," even unintentionally, to gain political advantage over an opponent by being able to say an investigation is underway.
"It's not just this election. I've got to look long-term," he said.
Ellis, currently chief deputy state treasurer, has said he didn't intend to report the alleged offer made in March but felt he had to after receiving media inquiries. His complaint was filed on May 30, when absentee balloting for the primary was already underway.
Herbert said in a statement issued on June 6 he was "concerned that any action on my part at this time could influence participation in or the outcome of" the primary and that he didn't want his actions to be seen as a commentary on any candidate.
Since issuing the statement, the lieutenant governor has not spoken publicly about the case until today. Herbert told the Deseret News the case is not clear-cut and that the candidates' discussion about the offer may have started innocently.
"There are no easy answers here. It's not as black-and-white as some people think," the lieutenant governor said. "I am frustrated a little bit about it. Nobody likes having their integrity impugned."
Walker has said he assured Ellis that if he were elected, Ellis and other employees in the treasurer's office could keep their jobs. Walker has denied Ellis' allegations that he also asked Ellis to quit the race and promised him a substantial pay raise.
Herbert said Walker "probably not inappropriately" told Ellis he didn't intend to clean house if he won in November. "You can see how that could happen," the lieutenant governor said. "Who knows what it could have escalated into."
Ellis has provided e-mails from a go-between at Walker's former employer, Zion's Bank, detailing Walker's offer. Herbert suggested the statements from Carl Empey hindered rather than helped the case and may have put both candidates "on thin ice."
Walker has said he plans to file his own elections complaint after tonight's election, alleging that Ellis conspired to entrap him by soliciting the job offer and is misusing state resources in his campaign.
As the state's chief elections officer, Herbert must review election complaints and determine if they merit further investigation by a special counsel appointed by the attorney general's office.
Herbert said there's confusion surrounding his role as well as that of the attorney general's office. The elections code violation carries a civil penalty of removing the violator from office, he said.
Any criminal prosecution of what would be a Class B misdemeanor would have to be dealt with separately, the lieutenant governor said. Another option is for a voter to contest the election results.
Herbert said he had no second thoughts about how he handled the case.
"Clearly, it's a hot potato and I could have very easily dumped it into somebody else's lap and said, 'Ha, ha,'," he said. "But that's not right."The lieutenant governor said his office is reviewing whether changes should be made in how such complaints are handled, suggesting one possible recommendation could be changing the law to directing them to a court instead of his office.
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