Due process appears to be elusive in Idaho’s House of Representatives. Idaho’s House Ethics Committee has scheduled a “hearing” for April 28 regarding an ethics complaint against one of its members, but the Ethics Committee itself is acting far from ethical, for if they proceed as planned it appears they will be violating that member’s Constitutional rights.

After reading the rules that the Ethics Committee established for the hearing and the response from the attorneys of Representative Aaron von Ehlinger (R-Dist. 6), it does not take someone with a law degree to see that the deck is clearly stacked against the Representative. Before examining how the Ethics Committee and Idaho’s Attorney General’s office are ignoring due process, consider first the events that occurred to bring this case about.

Impetus for the investigation

A female volunteer* working at Idaho’s State Capital initiated a friendship with von Ehlinger, a U.S. Army veteran serving his first term in the House. During the first week of March, the volunteer met up with von Ehlinger away from the Capitol and the two agreed to have dinner the following week. After the dinner on Mar. 9, the two went to von Ehlinger’s apartment. From there, their stories diverge with he-said/she-said versions of what happened. What is agreed to by both sides is that oral sexual contact occurred.  The volunteer’s version can be read in the complaint.  Rep. von Ehlinger’s version can be read in a letter from his attorney.

On Mar. 11, the volunteer approached the Assistant Sergeant at Arms for the House and claimed that unwanted sexual contact occurred. The matter was referred to the Boise police, who opened an investigation.

On Mar. 17, House Majority Leadership wrote a letter to Rep. Sage Dixon (R-Dist 1), Chair of Idaho’s Ethics and House Policy Committee, saying they were “informed that the law enforcement investigation would not be moving forward at the request of [redacted].  Based upon the complaint being brought to our attention, and now that it appears that we will no longer be interfering with an ongoing investigation, we feel compelled to bring this complaint before the Ethics and House Policy Committee.”

Problems with the Ethics Committee

The Ethics Committee set a hearing for Wednesday, Apr. 28, and published the rules the Committee will use during the hearing. However, in an Apr. 21 letter to the Committee, von Ehlinger’s lawyers outlined 13 objections to the rules. Several of those objections are:

  • Rule VII(B): The Committee Chair, Rep. Sage Dixon (R-Dist. 1) has claimed the right to “rule upon any question of admissibility or relevance of evidence, motion, procedure or any other matter …”  This is the equivalent of the prosecution also acting as the judge.
  • Rule VII(C) states, “The Committee may exact from a witness self-incriminating testimony.”  This is a violation of Rep. von Ehlinger’s fifth amendment rights.
  • Rule XI (J) of the hearing rules states, “The Chair reserves the right to preclude or truncate any witness testimony that he deems inappropriate, immaterial, or irrelevant to the purposes of the hearing.” These rights are not listed in House Rule 45. Rep. von Ehlinger’s attorneys point out that given the Committee members are saying the hearing will last one day, this rule puts into question von Ehlinger’s attorneys’ ability to present a fair defense.
  • Rule XIV gives Chairman Dixon the ability to modify the hearing rules at any time and without notice during the actual hearing, so long as he has consent of two other Committee members. This rule is also not provided for in House Rule 45, and von Ehlinger’s attorneys state that House Rule 45 does not allow for rules to be changed “on the whim of the Committee, let alone during a public hearing.” They also state that changing the rules during the hearing “would be an egregious violation of fairness, due process, and justice.”

Mixed ethical positions from Rep. Brent Crane

One of von Ehlinger’s attorneys states that a member of the Ethics Committee, Representative Brent Crane (R-Dist. 13), told him, in essence, that Crane has the votes to expel Representative von Ehlinger and intends to do so. This alleged statement was made without any review of a police report nor the findings of a hearing. Crane stating he intends to expel von Ehlinger is curious, considering House Rule 45, which states, “a recommendation for expulsion shall only be based upon a finding beyond reasonable doubt that misconduct involves commission of a felony or use of public office for pecuniary [financial] gain.” The Committee is telling von Ehlinger’s lawyers that he is being charged with violating the Legislature’s “Respectful Workplace Policy,” which is not a felony.

The Rules of Procedure published by the House Committee on Ethics and House Policy state that von Ehlinger “engaged in conduct unbecoming a Representative which is detrimental to the integrity of the House as a legislative body (Rule 45(2)(b)(i)).” This charge is also not a felony.

In addition to Crane’s intention to expel von Ehlinger being juxtaposed to House Rule 45, his stance appears to be a shift in ethics. In 2016, when news broke of a years-long extra-marital affair between then-State Representative Christy Perry and Senator Jim Guthrie, Crane said, “When a leader fails morally, it has a ripple effect. Moral failures cause the public to mistrust their leaders and we must do everything we can to restore trust.”  Crane then said, “Failure is not final and doesn’t have to be final.”

Ethics charges were slow in coming, but were eventually filed against Perry and Guthrie. Yet no hearings were ever held, and nobody was expelled, despite their admitted activity being a felony in Idaho, and a felony is one of the two reasons to expel a member under House Rule 45.  To this day, Guthrie is still a State Senator in Idaho.

Mixed ethical positions from Idaho’s Attorney General

Rule IV of the Committee’s Rules of Procedure for the hearing on von Ehlinger’s case states, “Counsel for the Committee will include counsel from the Office of Attorney General and the firm of Holland & Hart LLP. The Respondent may be represented by counsel. Any witness may be represented by counsel.”

The law office of Holland & Hart LLP is the “go to” law office for House Speaker Scott Bedke (R-Dist. 27). One legislator, who preferred not to be identified, told this reporter that Bedke alone is the sole decision-maker of how the House legal fund can be spent, and millions of taxpayer dollars are set aside for use by Bedke when he wants legal work done.

The issue that needs to be questioned further is why Idaho’s Attorney General is providing counsel in a hearing that is charging a sitting member of Idaho’s House.  In 2016, the Attorney General was questioned about how it would handle the extramarital affair between Perry and Guthrie.  As reported in an Aug. 18 edition of the Idaho State Journal, Idahoans were told, “The Idaho Attorney General’s Office does not have the authority to investigate legislators, so it cannot look into the alleged affair between Guthrie and Perry and whether public funds might have been used.

Mixed legal positions for the House Ethics Committee

In its Mar. 17 letter to Ethics Committee Chair Dixon, the House Majority Leadership stated the reason they were moving forward with ethics charges was because a request had been made (by someone who’s name was redacted, which is often the accuser) for the investigation to be dropped. Leadership’s letter stated, “it appears that we will no longer be interfering with an ongoing investigation.”

An inquiry by this reporter to the Boise Police Department revealed that the department currently has an open and active investigation into the events that occurred the evening of Mar. 9 between the intern and Rep. von Ehlinger. The spokesperson said the investigation had been suspended on March 16 but was reactivated on April 16.

If House Majority Leadership was concerned about conducting a hearing during an active police investigation, it begs the question of why the Committee is continuing with its hearing on Apr. 28. The Rules of Procedure established by the House Ethics Committee for conducting the hearing were adopted and promulgated on April 20.

Will Idaho House Leadership follow due process?

Evidence has emerged that the Ethics Committee had a previous discussion with von Ehlinger about flirtatious behavior, but he maintained that he had the right to ask staffers out on dates. Also, affidavits gathered for this case show that some women were uncomfortable around von Ehlinger. As a result, the Ethics Committee’s hearing is likely to be unpleasant and turbulent, and legacy media will magnify every perceived offense, real or imagined.

Because of the nature of the events, whether the sexual encounter was consensual or whether von Ehlinger forced himself on the volunteer will be difficult to establish, especially with the “beyond a reasonable doubt” threshold in House Rule 45. If von Ehlinger did force himself and admits to it, then he would be guilty of a felony and an expulsion would be warranted. However, von Ehlinger has taken a lie detector test and the police officer administering the test believes von Ehlinger is telling the truth.

At this point, the case is a battle of “he-said / she-said” that has been (and will be) exacerbated by fishy and perhaps unconstitutional actions by the House Majority leadership. What of the rule of law? Actions taken by House leadership raise serious questions for those who value due process:

  • Why does the Ethics Committee Chair get to play judge and jury on the admissibility of all evidence and testimony; to revoke the rights of the accused during an open police investigation; to cut off witnesses he decides he doesn’t want to hear, and to change hearing rules at whim?
  • Why did Ethics Committee member Brent Crane allegedly inform von Ehlinger’s counsel that he has the votes to expel and seeks to pursue that—even before the accused has presented a defense?
  • Why is the Idaho Attorney General’s office inserting itself into this hearing when during a 2016 case involving felony behavior between two sitting legislators, the Attorney General’s office said it does not have the authority to investigate legislators?
  • Why does the House Majority Leadership approve of a hearing during an open police investigation after initially saying such a hearing would interfere?

These questions need answers because due process now appears to be questionable in Idaho’s House of Representatives.

 

*This article originally referred to the accuser as an “intern.” After this article was published, UncoverDC received notification from multiple Idaho legislators that the accuser is a volunteer for a specific Representative several hours per week, that she is not an intern or a student and therefore does not fall under Workplace Policy purview. Having verified the information, the word “intern” has been corrected to “volunteer.” 

 

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