Swallow Investigation Recommends Changes in State Law (with video)

The law firm that worked on the Utah Lieutenant Governor’s investigation of former Attorney General John Swallow on Tuesday morning recommended 20 changes to state election laws.

The Snell & Wilmer attorneys – who had previously pointed out a number of violations of state law concerning Swallow’s 2012 campaign – made their report to the Utah House’s special Swallow investigation committee – which is now winding down its work in light of Swallow’s early December resignation.

Part of the House committee’s job is to recommend to the 2014 Legislature, which convenes for its 45-day general session Jan. 27, changes in state law that hopefully could plug loopholes in campaign law.

Those recommendations will come later this month in, what is anticipated to be, a lengthy report to the House.

Swallow committed five violations of the election code, said Mark Thomas, Lt. Gov. Spencer Cox’s chief of staff and head of the state Election Office.

You can read the LG report here, which has previously been reported upon.

What’s new Tuesday are the campaign law changes recommended by the Snell & Wilmer attorneys, Matthew Lalli and Stewart O. Peay.

In fact, it was likely that LG report which caused Swallow to finally give up the ghost and resign last month.

Previously, Swallow promised to fight to the end to defend what he called his reputation. Swallow always denied any wrongdoing, although two county attorneys are still looking into criminal violations concerning Swallow’s actions over the last few years.

Below are a few of the Snell & Wilmer’s attorneys recommendations. You can listen to their report here.

Most changes are technical in manner. Swallow, an attorney, tried to parse legal terms to avoid reporting financial connections, donations and such, and the recommendations reflect his bamboozlements.

— A candidate’s personal employment reporting should include a “secondary employer.” Swallow claimed he didn’t need to report that he was employed by shadow entities, P-Solutions (his consulting firm) and Chaparral (a cement plant in southern Nevada).

— More closely define “owner” and “officer” in corporations/businesses.

Swallow used the differences in those terms as his excuses in not reporting publicly what he should have with P-Solutions and SSV Management (a family trust).

— “Individual” should be included in campaign filer documents. Swallow claimed he got checks from his friend and former employer, the late Richard Rawle, as an individual, not as a business, and thus didn’t have to report them.

— The term “formal advisor” should be changed to “advisor.” Swallow claimed he was not a “formal” advisor to Rawle and some of his firms and/or some of the entities inside of Swallow’s family trust.

— The time frame on a candidate’s dealings with businesses should be set at at least one year throughout campaign law. Swallow claimed he didn’t have to report some business connections because they took place “in the past.”

Swallow changed his legal relationship with his P-Solutions the day before he filed for AG, naming his wife as the boss of that firm.

— Change some legal terms pertaining to “owner” and “manager.” Swallow said because his wife didn’t have to file a W2 on P-Solutions and his trust, neither he nor she needed to include those connections on his campaign disclosures.

— Even though Swallow paid personal income taxes on money given to his P-Solutions and family trust, he said he didn’t need to report on those connections in his campaign filings.

Candidate trusts should be included in campaign disclosures.

— Candidates should be allowed to amend their original campaign filings, and should not be allowed to make changes that were substantially different than the original – or that in itself would be a violation.

This has actually been discussed at some length by lawmakers before.

Several years ago a former Bountiful GOP representative tried to define “major” changes in amended filings, sometimes made after a primary or general election and so voters were denied interesting, excluded, material.

— The standard of conduct/liability should be “preponderance of evidence” in the Election Office’s investigation of civil violations.

The House, at some length, debated what standard should be used to judge Swallow’s actions.

In the end, since the House investigation would only make a report to the body and not recommendations on impeachment, a standard was not that necessary.

The LG attorneys said if the Legislature later decided to make such campaign violations carry criminal, not civil, penalties, then a different standard should be considered.

— The Legislature should take up the statute authority to remove someone from office for campaign/election violations.

Swallow maintained that the Utah Constitution, alone, says an officeholder may be impeached. And that there is no other way to remove someone from office.

Campaign law says that a state judge can void an election if a candidate is found guilty of campaign election law – and thus the officeholder is out of office.

The LG attorneys say a brief study by them finds three reasons why the election law violation removal is constitutional.

The Constitution says impeachment is for offenses while in office. But Swallow’s improprieties took place BEFORE he was in office, so the statute removal is valid.

But further clarification on this probably should be done, the attorneys say.

— Swallow said he had verbal approval from former AG Mark Shurtleff to do outside consulting work while Shurtleff’s chief deputy.

Shurtleff told the LG attorneys he doesn’t remember that conversation, but it could have taken place.

Shurtleff said he allowed office attorneys to do a little writing and teaching outside of the office for extra money. But Swallow was doing “consulting” for major firms and projects and getting considerable money.

The LG attorneys say the Legislature should better define what kind of outside work state employees, especially attorneys, should be allowed to do.

Lalli said that as he worked on the investigation, he began to see connections to Swallow’s actions and those of former President Richard Nixon during the 1970s Watergate scandal.

“I don’t say that (the connection between) Richard Nixon and John Swallow is perfect,” said Lalli.

“But I can say as investigators, we found ourselves gradually seeing that Mr. Swallow did things he probably didn’t need to do” to win the AG’s race, just as Nixon did things in his 1972 re-election – like dirty tricks and such – that he didn’t need to do to win.

Nixon lied, manipulated materials at a later date and did things to avoid the appearance of misdeeds.

Swallow did likewise, said Lalli.

Swallow a number of times told Lalli (in formal testimony) that he was concerned about the “optics” of being politically/financially connected to the payday loan industry (Rawle’s business) and/or somehow connected to Jeremy Johnson and Johnson’s claim that he paid Rawle $250,000 in some odd bribery attempt of a U.S. senator.

While it appears the Legislature will have some serious work to do on campaign reform, it must be remembered that whatever lawmakers do in the 2014 session must be followed by themselves as they face elections this year and in the future.

Accordingly, some legislators may not want to make broad reforms, like limiting campaign contributions.