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Q&A about the special counsel probe of Attorney General John Swallow

Published June 6, 2013 7:23 pm
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What is a special counsel?

A special counsel is an individual or a law firm hired by the state to investigate, and possibly prosecute, a case.

What will the special counsel investigate in the John Swallow case?

Three alleged election violations are subject to further review by the special counsel after Utah Lt. Gov. Greg Bell dismissed nine of 12 charges outlined in a complaint filed by liberal-leaning group Alliance for a Better Utah.

The remaining allegations center around Swallow's involvement with two companies — SSV and P-Solutions, the latter was the business at the core of a scandal involving indicted St. George businessman Jeremy Johnson.

Swallow has said his involvement with P-Solutions stems from a Nevada cement project on which he acted as a consultant and received $23,500 from the late Richard Rawle for his work.

The payment came directly from funds that Rawle, founder of the Provo-based payday-loan chain Check City, received from Johnson for what Swallow has characterized as a lobbying deal he helped arrange.

Johnson has said, at times, that the $250,000 deal was meant to bribe U.S. Senate Majority Leader Harry Reid, D-Nev. Reid and Swallow have denied this.

Swallow later returned to Rawle the $23,500 he was paid and asked that he be compensated from another account.

After filing his initial disclosure form at the start of his candidacy for attorney general, Swallow removed his name from the management of P-Solutions and submitted an amended disclosure, but failed to list his wife's stake in the company.

A special counsel will determine:

• Did Swallow fail to report his involvement with P-Solutions and SSV on the financial disclosure statement?

• Should Swallow have disclosed an $8,500 sum paid to P-Solutions by Rawle? (The remaining $15,000 was paid outside the disclosure window.)

• If the special counsel finds Swallow did, in fact, fail to disclose his interests in those companies and the payment from Rawle, the final question turns to intent: Did Swallow knowingly provide false information on those forms?

Swallow's attorney has said his client filed his disclosure forms as advised by counsel and has offered to submit amended versions.

Who will appoint the special counsel?

Usually, when a complaint against an elected official is filed, the attorney general's office will either conduct the investigation itself or appoint a special counsel to do so.

But a bill rushed through the Legislature this year outlawed the involvement of the attorney general's office if there is a clear conflict of interest — as in this case. The bill instead authorized the lieutenant governor to appoint a special counsel to investigate these allegations.

It will be the first time in Utah history that the lieutenant governor's office will select a special counsel.

How will the lieutenant governor's office appoint the special counsel?

The state's Division of Purchasing put out a Request for Proposal (RFP) for two weeks to solicit bids from interested individuals and law firms. After just two proposals were received by Wednesday's deadline, the lieutenant governor's office decided to reissue the RFP for another two weeks.

After the second deadline — likely June 21 — all applications will be reviewed by a small selection committee, who will be appointed by Lt. Governor Greg Bell.

Who will be on this committee?

Though the committee hasn't been formed yet, Mark Thomas, the lieutenant governor's chief deputy, said he and Bell will likely serve on the team as well as at least one other member. least one other member. All members of the selection committee will be required to sign a statement declaring that no conflicts of interest exist in selecting the special counsel to investigate Swallow.

On what basis will the committee evaluate each applicant?

The committee will look at several areas: ability to meet the requirements of the job, proven track record, experience of staff and cost.

Each applicant will receive a numeric score in each category as outlined in the RFP. The maximum total score is 100.

"There are a lot of attorneys and law firms out there that are really good, but this is a very big deal," Thomas said. "It's high level. It's tied to the political world of our state. There's going to be a lot of media around it. Whoever we select has to be capable to handle all that."

The special counsel also will need to be as neutral as possible, Thomas said.

Applicants will be asked to submit a conflict-of-interest evaluation that asks what potential conflicts they may have with the case: Did they donate money to Swallow's campaign? To his competitors' campaigns? Are they politically active?

Thomas, who also serves as Utah's elections director, said the committee will scrutinize each applicant's political history to pinpoint any potential conflicts.

Applicants with conflicts will be asked to explain the reasons for them and write proposals detailing how they would mitigate any bias.

Proposals with unsolvable conflicts will be thrown out.

Will the contract automatically go to the lowest bidder?

Though cost is a factor, Thomas said, it is not the only one.

Members of the review committee will not see the dollar amounts attached to each bid. Instead, the Division of Purchasing will rank bids from lowest to highest price and assign the lowest bidder with the highest score for cost. The division will combine this score with the committee's other merit-based scores for final numbers, which then will be sent to the lieutenant governor's office.

Theoretically, Thomas said, the highest score should win the contract, but that's not always the case.

If the lowest bidder is not qualified or has too many conflicts, the committee will move on to the second-highest score and so on.

If enough evidence is found against Swallow to support any of the allegations, who will prosecute the case?

That remains to be seen.

The winning bidder will sign a contract for two years, during which the special counsel may be asked to prosecute. It's also possible, Thomas said, that the prosecution would be handled by someone else or another agency. The decision of whether the special counsel would stay on as a prosecutor rests with the lieutenant governor.

"We can terminate the contract at any time," Thomas said. "The two-year time frame allows some flexibility. I certainly hope it doesn't take two years, but if it does go on with court proceedings and other things, it might."





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