The Utah Attorney General's Office said Wednesday that a special investigation into an election complaint filed against Rep. Mark Walker, R-Sandy, is moot now that Walker lost his bid to become state treasurer.
However, Chief Deputy Attorney General Ray Hintze told the Deseret News there could still be a criminal investigation into allegations made by Walker's GOP primary opponent, Richard Ellis.
Ellis, who beat Walker in Tuesday's primary and now faces Democrat Dick Clark in the November election, alleges Walker illegally offered him the opportunity to keep his job as chief deputy state treasurer at a much higher salary in exchange for dropping out of the race.
"There is still a criminal side of this," Hintze said. But because the penalty for the possible civil violation is simply removing a candidate from office, he said there's no reason to go forward with the special investigation.
That was explained by Hintze in letters Wednesday to both Lt. Gov. Gary Herbert and Ellis' attorney, Dale Gardiner. Herbert had waited until the polls closed Tuesday night to refer Ellis' allegations to the Attorney General's Office for the special investigation.
Such an investigation requires the appointment of a special counsel. The Attorney General's Office had asked the Davis and Weber County attorneys to act as special counsel, but given the election results Hintze said they are no longer needed in that role.
The "proceeding has been rendered moot by the results of the primary. Therefore this office will not be initiating a special proceeding or appointing special counsel...," Hintze said in his letter to the lieutenant governor.
However, his letter also states that the special statutory procedure required "is in addition to any other civil or criminal action, proceeding, or remedy against the alleged violator and does not limit any of those other proceedings."
Davis County Attorney Troy Rawlings, a Republican, and Weber County Attorney Mark DeCaria, a Democrat, said they had agreed to review the complaint and were still willing to work together.
Rawlings and DeCaria could still be called upon to investigate and prosecute any potential criminal violation, which would likely be a class B misdemeanor. Hintze said the attorney general's office would also contact Salt Lake County District Attorney Lohra Miller to see if she wanted the case.
"We are willing to do it to the best of our ability," Rawlings said.
Hintze said the Attorney General's Office wants to stay out of any criminal prosecution. "We would prefer not to have any of it in this office just because of the fact that (Attorney General) Mark Shurtleff, as everyone knows, endorsed Mark Walker."
The elections complaint was filed by Ellis on May 30, but Herbert announced a week later he would not take action until after the primary because he didn't want to affect the outcome. Ellis tried and failed to persuade the Utah Supreme Court to force Herbert to act sooner.
Ellis' attorney then submitted a request directly to Shurtleff. Hintze said in his letter to the attorney, Gardiner, that not only was the need for special counsel now moot, the Attorney General's Office could not initiate that process without a referral from the lieutenant governor.
Herbert told the Deseret News Tuesday that he waited until the polls closed to refer Ellis' complaint because he was concerned the offer allegedly was made three months before it was reported.Joe Demma, the lieutenant governor's chief of staff, said Wednesday that Herbert's involvement is finished. But, Demma said, "from a political standpoint, the public is interested in knowing what happened."