Conviction of NU Regent Hergert historic (dodged finance laws)

[Omaha Steve]

http://www.omaha.com/index.php?u_pg=1640&u_sid=2202507


Published Friday
July 7, 2006

Conviction of NU Regent Hergert historic

BY LESLIE REED


WORLD-HERALD BUREAU



LINCOLN - In the end, it was the cover-up of his conduct that brought down David Hergert.


David Hergert

The University of Nebraska regent was removed from office today by the Nebraska Supreme Court, which ruled that he intentionally violated state campaign finance laws.

Hergert, 66, is only the second Nebraskan - after the state's first governor, David Butler, ousted in 1871 - to be removed from office after being impeached.

In a unanimous, unsigned ruling, the high court found Hergert guilty of two offenses relating to campaign finance statements filed Jan. 11, 2005, after Hergert was sworn in as regent.

"During the campaign and, significantly, after he took office, Hergert intentionally filed false reports of campaign spending in an attempt to cover up his conduct," the Supreme Court said.

"Hergert's various explanations for his conduct contradict one another and are not believable when the clear and convincing evidence before this court is considered."

Judge Kenneth Stephan, whose wife, Sharon, is a university employee, did not participate in the case. He was replaced on the case by retired Court of Appeals Judge Edward Hannon.

Other judges who joined in the ruling were Chief Justice John Hendry and Judges John Wright, William Connolly, John Gerrard, Michael McCormack and Lindsey Miller-Lerman.

Hergert had been suspended as a regent since the Legislature voted to impeach him on 10 articles.

He was accused, essentially, of failing to disclose campaign transactions that would have triggered public funds for his opponent, Don Blank of McCook, in the 2004 election.

Now that the Supreme Court has spoken, Gov. Dave Heineman said, he expects to announce details of his search for a new regent Monday.

Heineman's appointee would serve only until a new regent is elected from western Nebraska's District 7 in November.

Staffers at the regent's business, Hergert Milling in Mitchell, said Hergert had no comment on the ruling.

Lincoln attorney Chris Ferdico said he and other lawyers were still consulting with Hergert about the decision and would not comment until later. Hergert's lawyers have raised constitutional issues that might form the basis of an appeal in federal court.

Omaha attorney David Domina, who prosecuted Hergert during a five-day trial in May before the Nebraska Supreme Court, called the ruling "a good result for the Legislature and a good result for the state."

Hergert already had paid a record $33,512 in civil penalties after admitting to four campaign violations in a settlement agreement with the Nebraska Accountability and Disclosure Commission.

In that agreement, which barred criminal prosecution of Hergert, he acknowledged that he missed deadlines for filing documents that would have triggered public campaign funds for Blank; that he failed to disclose a $44,000 loan to his campaign until after the election; and that he made a personal loan to his campaign that exceeded legal limits.

In its 24-page opinion, the high court zeroed in on a $13,272 expenditure to Jackson-Alvarez, a Virginia campaign research company.

In his Jan. 11, 2005, campaign report, Hergert reported the Jackson-Alvarez expenditure as an unpaid bill that he incurred Dec. 14, 2004.

However, the high court noted that the evidence showed that Jackson-Alvarez's research of University of Nebraska records was completed by Oct. 5, 2004, and that Hergert used the research in late campaign advertising for which he spent more than $56,000.

"Hergert was cornered" by the time he reported the Jackson-Alvarez expenditure in January.

The high court concluded that Hergert reported the expenditure with a false date in an effort to deflect an investigation by the Accountability and Disclosure Commission.

The high court rejected Hergert's argument that Nebraska's campaign finance law is unconstitutional - saying that a person who has fraudulently circumvented the law does not have standing to challenge it.

It also rejected his arguments that his violations were merely technical and had nothing to do with his duties as regent.

"The evidence of Hergert's intent regarding the Jan. 11, 2005, filing does not show simple neglect or an error of fact or judgment," the court wrote. "Rather, the facts show that Hergert was 'willfully blind' to the actual date the Jackson-Alvarez expense was incurred and that Hergert deliberately acted to misrepresent that date."

State Sen. Ernie Chambers of Omaha, who took the lead in the Legislature's effort to impeach Hergert, called the ruling a vindication of himself and 24 other lawmakers who voted to impeach.

"I had said from the outset that this man had violated the law," Chambers said. "As it turns out, we all were vindicated, especially me."

Attorney General Jon Bruning, thwarted in his attempt to pursue a grand jury investigation of Hergert because of the civil settlement, lauded the court's ruling.

"Today, justice has been served," he said. "Mr. Hergert intentionally violated Nebraska campaign finance law to influence the election process, and justice requires him to pay a price for that decision."

Jim McClurg, chairman of the Board of Regents, said the Hergert investigation has been a distraction.

"It has tarnished the reputation of the board and the university," he said, "and we will work diligently to restore the public's confidence and trust."

McClurg said he agreed with the outcome of the case.

Matt Schaefer, student body president and student regent representing the University of Nebraska-Lincoln campus, said he doesn't understand why Hergert was allowed to take office .

"There's no point in having any election rules or campaign rules if you can flagrantly violate them and still reap the rewards of office," the 21-year-old political science major said. "Why have them at all?"

Schaefer was active in campus calls for Hergert's resignation and impeachment.

State Sen. Chris Beutler of Lincoln said the ruling only partially closed loopholes in Nebraska election law.

"The part they closed involved some of Mr. Hergert's behavior," he said. "They effectively dealt with him. But we need to have a constitutional amendment that all election laws fall within the purview of impeachment."

* * *

What's next?

Gov. Dave Heineman will appoint a replacement for David Hergert. The appointee will serve until a new regent is elected in November. Heineman will announce his search process Monday.

Hergert's lawyers have laid the groundwork for a possible appeal in the federal courts. The appeal could center on whether Nebraska's campaign finance law is constitutional.

The Legislature may propose a constitutional amendment specifying that elected officials can be impeached over election law violations.