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Utah will let John Swallow's election to A.G.'s office stand
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

As far as the state is concerned, the election of John Swallow to the office of attorney general stands.

Lt. Gov. Spencer Cox announced Wednesday morning that Utah will not proceed with further legal action against Swallow by asking a judge to invalidate his November 2012 election.

Cox, who became lieutenant governor last month, said Swallow's resignation satisfied the remedy outlined under Utah law for campaign-disclosure violations.

Last week, Swallow announced his departure — effective Dec. 3 at 12:01 a.m. — after nearly 11 months in office. His announcement came the day before the release of a highly critical report from the lieutenant governor's special counsel, accusing Swallow of five election-law violations.

The state could have filed a civil complaint in court to invalidate the election, Cox said, and declare the attorney general's seat vacant. But, he added, it would take at least six months, cost at least $200,000 and result in the same outcome — forcing Swallow from office.

"We have prosecuted this to the extent we can," Cox said at a news conference.

On another investigative front, Rep. Jim Dunnigan, R-Taylorsville, chairman of the special House committee examining Swallow's actions, said his bipartisan panel would wrap up its probe and issue a report in the coming weeks.

"We met yesterday [with the committee's special counsel]," Dunnigan said Wednesday night, "and had a discussion on the path forward to wind it down."

Dunnigan said the fact-finding panel plans to meet Dec. 7 and discuss tying up loose ends. The special counsel would then draft a report detailing as much as possible about what the investigation uncovered.

"We want to put things in the report that are factual. … There will be some things that will be perhaps incomplete, things we worked on but have not proven to our level of satisfaction," he said. "It's going to be a laborious, detailed report, and it will take some additional time to assemble that."

The House probe, at one time, was envisioned as a way to lay the groundwork for impeachment proceedings against Swallow.

But the attorney general, who has proclaimed his innocence throughout, is bowing out on his own. When he announced his resignation last week, citing the financial strain of multiple investigations, Swallow said he believed the House inquiry should end with his exit from office. Several House members echoed that sentiment.

Now, with Cox's decision, no special election will be held — as Democrats had demanded. Cox said there is no provision in Utah law for such a vote.

If such an election were to take place, it would cost $3 million to $6 million, depending on whether a primary became necessary, Cox said. And it could not come earlier than November 2014, when an election for attorney general would take place anyway.

Cox said that, according to Utah law, Gov. Gary Herbert will appoint an acting attorney general from a list provided by the Utah Republican Party.

The GOP State Central Committee is scheduled to meet Dec. 14 and choose three names to send to Herbert, who then would pick one to serve until a candidate is elected in November 2014 and takes over January 2015.

Criticizing the lieutenant governor's decision were both the Utah Democratic Party and the Alliance for a Better Utah, the group that had filed the election-law complaint against Swallow.

Both are threatening legal action, but also are calling for an unusual solution now: Appoint a caretaker attorney general who would assume the post only temporarily and not run for the job in next November's election.

Sen. John Valentine, R-Orem, suggested such a solution Wednesday, when he withdrew his name from the competition for attorney general. He said the office needs someone who will commit to it — and not to running to keep it in November 2014 — and he was not willing to give up his state Senate seat to make that commitment.

"The environment we're looking at right now is very, very toxic. The office has really lost a lot of trust," Valentine said. "I finally decided, you know, what this really needs is someone who is willing to go in there for one year, clean house, make the decisions that need to be made to clean the culture there and then get out."

He said he concluded it would be impossible to make the necessary changes if that person had to worry about running at the same time.

"He can't worry about what he needs to do. … If he needs to terminate people, he's making enemies. If he needs to change the culture, he's making enemies," Valentine said. "I don't think I could do that with then turning around and raising money and having to go through the various election processes."

Democratic Party Chairman Jim Dabakis endorsed Valentine's proposal.

"Valentine's idea is exactly right. There should be a transition person who would go up there with tremendous integrity and strength and go in and clean up the office," Dabakis said. " .... It's someone who is not running, so they are not out raising money and feathering their nest, which has been the issue in the attorney general's office.

"I call on the governor, lieutenant governor and Legislature to rally around this idea," added Dabakis, who doubles as a state senator from Salt Lake City. "We'll drop all of our threats of legal action" if such an appointment is made.

"There are a lot of people who could fill that. It's almost a calling rather than a job," he said, noting that Democrats will try to come up with a list of people they would like to see.

Former Utah Supreme Court Justice Michael J. Wilkins has said he would be willing to take such a temporary appointment.

Maryann Martindale, executive director of the left-leaning Alliance for a Better Utah, backed the idea of appointing a temporary attorney general who would agree not to run.

"If they were not interested in running, then it takes away the cloud of suspicion of what their motivations are," she said. "The attorney general's office is going to have a long road to restore public trust. To get someone in there who will roll up their sleeves, clean house and do the work that needs to be done … is a really good move to make."

Martindale said her group will still explore legal action because it believes many questions should be answered, including whether Swallow's election should be invalidated and whether it would take away Swallow's pension — pegged at about $12,000 a year when he reaches age 65. He turned 51 earlier this month.

Dabakis and Martindale criticized Cox's decision.

Martindale said that with it, "They run the risk of the general public still thinking the system is being gamed and that things are being swept under the rug."

Said Dabakis: "I just believe that the lieutenant governor decided that it was best to sweep everything under the rug [because], 'You know what, he's no longer the attorney general … and if he gets his pension, it's not our doing.' He evaded the most serious question, which is whether the election was invalidated."

The special counsel's report alleging campaign violations will be forwarded to Salt Lake County District Attorney Sim Gill and Davis County Attorney Troy Rawlings, who are conducting an independent criminal investigation of Swallow and his GOP predecessor, Mark Shurtleff. That report also had recommended asking a judge to nullify the election.

Cox, a former state lawmaker who became the first legislator to call for impeachment proceedings against Swallow, said he remains troubled by the allegations outlined in the special counsel's report.

"We are obviously concerned with the findings," he said.

But whether further legal action is taken is up to Gill and Rawlings, Cox said. "We are simply forwarding the investigation on to the county attorneys."

Robert Gehrke contributed to this story. —

The remaining probes

• Salt Lake County District Attorney Sim Gill, a Democrat, and Davis County Attorney Troy Rawlings, a Republican, are investigating whether John Swallow and his predecessor, Mark Shurtleff, broke any state laws. The U.S. Justice Department has declined to prosecute Swallow or Shurtleff, but the FBI is assisting the county prosecutors' probe. The prosecutors also have said they will examine the report from the lieutenant governor's special counsel. That report accused Swallow of five election-law violations.

• A special Utah House committee is investigating a series of allegations against Swallow. With his resignation, House leaders plan to wind down the probe. The committee is expected to issue a report of its fact-finding mission. Investigators already have interviewed more than 140 witnesses, served 15 subpoenas and received thousands of documents. They also have been working to retrieve a significant amount of electronic data missing from Swallow's email account, office laptop and desktop computers, home computer and cellphone. The committee says Swallow lost a campaign iPad as well. In addition, legislative leaders have authorized an audit of the attorney general's office.

• At least two ethics complaints were filed with the Utah State Bar about Swallow. One came from the state's former director of consumer protection, alleging Swallow violated attorney-client rules by discussing a consumer-protection case with a potential donor and suggesting the target meet with Shurtleff. The A.G.'s office represents the consumer division. The other complaint came from the left-leaning Alliance for a Better Utah, alleging Swallow's payments for consulting work on a cement plant while he was chief deputy attorney general violated attorney ethics rules. On Oct. 8, the bar "declined to prosecute" the alliance matter.

Go to sltrib.com for a multimedia look at the Swallow scandal — the players, the probes, the allegations — along with an interactive timeline, complete with links to past stories, pivotal documents and secret recordings (including the now-infamous Krispy Kreme meeting).

Politics • Lt. Gov. Spencer Cox says he won't ask judge to annul the results.
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