RALEIGH - When the State Board of Elections ended last week's hearing by finding that the campaign of Agriculture Commissioner Meg Scott Phipps had accepted illegal contributions from corporations and cash donors, it appeared the board was sending a neatly wrapped investigation over to Wake District Attorney Colon Willoughby.
But it now appears the board might have tied Willoughby's hands by granting immunity to two key witnesses -- a power usually reserved for prosecutors with a judge's approval. Questions also are being raised about whether Phipps, whose campaign was fined $130,000, and other witnesses could be immune from prosecution as well.
"I have not been able to find in the statutes any authority for the State Board of Elections to grant immunity," said Willoughby, who typically reviews the results of investigations by state agencies for possible criminal prosecution.
Willoughby says he's been reviewing election law violations for 19 years, and has never seen an immunity agreement.
"Since 1983, these things have been on my plate," he said. "But I've never seen anything like this."
Larry Leake, an Asheville lawyer and chairman of the elections board, said the board relied on advice from its lawyers when granting immunity.
"That's what counsel has told us that we have the ability to do. I think that's consistent with our investigatory authority," Leake said.
The board granted immunity to Robin Turner, a Florida-based producer of midway carnivals for fairs, and Norman Chambliss III, a Rocky Mount businessman and county fair manager.
The agriculture commissioner selects the midway operator for the N.C. State Fair. After Phipps and her losing primary opponent, Bobby McLamb, promised to open that contract, which had been monopolized by one company for more than 50 years, carnival owners and other vendors contributed more than $285,000 to Phipps' campaign alone.
Turner and Chambliss testified that they made illegal contributions to the campaigns of Phipps and McLamb.
Phipps testified that she was intentionally unaware of who was contributing to her campaign. Instead, Phipps said she left that work to her campaign treasurer, Linda Saunders.
Don Wright, general counsel to the elections board, cites a provision in state law that says witnesses "required to testify by and for the State" before the board shall not be prosecuted for their actions or have their testimony used against them.
However, Willoughby says that doesn't grant the authority to the election board, but rather to his office, which represents the state.
Although Willoughby says he has not decided whether to honor the immunity agreements, there is no question that at least one of the men plans to rely on the protection if prosecutors charge him. Chambliss' lawyer, Richard T. Gammon, said, "It's our position it protects him from prosecution for violation of the election laws."
Another potential problem for Willoughby is that quirky language in the state election law could shield Phipps, McLamb and others involved in the hearings from criminal prosecution. The law says anyone "subpoenaed and required to testify" can avoid prosecution. This could be interpreted to mean immunity is granted to anyone subpoenaed to testify.
"It's very broad," James Drennan, a legal expert at the Institute of Government at UNC-Chapel Hill, said after reading the provision. "You could easily read it to say that."
Lawyers for Phipps and McLamb say they have no plans to raise the issue because they both voluntarily testified and agreed to cooperate with the investigation. It's less clear whether other witnesses might claim immunity.
All that's left to do is wait to see what Willoughby does next.
"After the SBI investigates, we'll try to evaluate the facts and the law and act accordingly," he says.