Court ousts Hergert from regent seat

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By Staff and Wire Reports

University of Nebraska Regent David Hergert was convicted of impeachment charges and ousted from his elected office Friday by the Nebraska Supreme Court.

Hergert was impeached by the Legislature for breaking campaign finance laws to win the 2004 election. He also was charged with violating his oath of office.

“We find that in the primary and general elections, Hergert intentionally manipulated and violated Nebraska’s campaign finance laws in a scheme to prevent his opponents from receiving public campaign funds,” the court said in an unsigned ruling. “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.

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Hergert

Hergert

“Hergert’s various explanations for his actions contradict one another and are not believable when the clear and convincing evidence before this court is considered,” the court said.

Hergert was found guilty on two of 10 counts: false reporting and obstructing government operations.

A secretary in Hergert's office said Friday he would not comment. A statement from his attorneys, however, could come later Friday.

Among other things, Hergert was accused of waiting until after the primary election to file a document outlining his spending that would have given his opponent, incumbent Regent Don Blank, matching state funds.

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.

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

Candidates who do not abide by the caps must estimate what they will spend and inform the accountability commission when they reach 40 percent of that total in order to trigger the release of matching funds.

Hergert did not agree to the cap and spent $65,000 in the primary, thus qualifying Blank for $40,000 in public funds. Hergert then estimated that he would spend $40,000 for the general election.

Hergert 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. Blank, who won the primary by 18 percentage points, lost the general election by 11 percentage points.

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

Hergert’s lawyers — Chris Ferdico and Sean Brennan — had stressed that he reached a settlement with the state 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 more than $33,000 in fines but not face criminal charges. They did not immediately return calls seeking comment.

David Domina, the lawyer hired by the Legislature to prosecute Hergert, hailed the ruling.

“The Legislature had two objectives,” he said. “Number one, remove this man from constitutional office. Number two, establish that election fraud will not be tolerated. They won on both points."

Gov. Dave Heineman will name a replacement for Hergert. He said he would announce details of the process Monday.

Attorney General Jon Bruning lauded the decision, saying “justice has been served.” Bruning launched a failed attempt to form a grand jury to investigate Hergert and it was later revealed his office were aware of negotiations that precluded Hergert from criminal prosecution.

“Mr. Hergert intentionally violated Nebraska campaign finance law to influence the election process,” Bruning said.

The court clarified wording in the state Constitution that says a person can be impeached for committing a misdemeanor in office.

“We are not concerned with whether such conduct could result in criminal conviction or acquittal under the criminal statutes noted in the articles of impeachment,” the court said. “Our role as fact finders ... is limited to finding whether the Legislature has shown by clear and convincing evidence that Hergert is guilty of ‘one or more impeachable offenses.’

“The phrase ‘misdemeanor in office,’ as that phrase is used ... is a term of art, and the word ‘misdemeanor’ in this phrase is not used as it is in a criminal context,” the court said. “An officer’s conduct need not rise to the level of an indictable offense to be considered an impeachable offense.”

Sen. Chris Beutler of Lincoln, who with Sen. Ernie Chambers of Omaha were picked to help with Hergert’s trial, said: “It’s a great day for the people of the state of Nebraska. The integrity of their election laws has been upheld.”

One state senator who voted against impeaching Hergert, Sen. Lavon Heidemann of Elk Creek, said: “I didn’t think there was as much of a chance of it actually happening at the Supreme Court level. But after the trial I thought the state side ... did such a good job I began to think it could go the other way.”

Jim McClurg, chairman of the Board of Regents, said the Hergert case had been “a distraction and a disruption.

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

Regent Randy Ferlic said the support he and McClurg have expressed for Hergert in the past may have hurt both in the May election, when both finished second in the primary.

The image of the entire board, he said, “may have suffered a little bit.”