Dundy County Sheriff, lacking state certification, faces recall
By Bill Kelly , Senior Producer/Reporter Nebraska Public Media
Nov. 13, 2023, 1 p.m. ·
A western Nebraska sheriff unable to secure certification as a law enforcement officer may find out Tuesday night if voters in his county want to remove him from office.
Dundy County Sheriff Clinton J. Smith claims the recall election violates the U.S. Constitution and asked the Federal District Court in Nebraska to block release of the results. In the lawsuit filed late last week he claims the state’s police training facility violated his rights by failing to issue his certification to serve as a Sheriff.
Smith continues to work despite having his paycheck withheld by the Board of Supervisors. The board acted after the State of Nebraska discovered Smith lied about his past, denying him certification as a law enforcement officer. They were also named in the lawsuit.
County Attorney Arlan Wine said the board had few alternatives to respond to having a sheriff without arrest powers, since only a vote of the people can remove an elected official. “He's not certified. He didn't get certified in eight months and is not resigning. He's holding on to his office,” Wine said.
Board Chairman Scott Olson declined to comment other than to say during a recent meeting, “It’s a strange deal all the way around.”
Ballots were mailed out to registered voters after a successful petition drive set the stage for a recall election. Votes are scheduled to be tabulated on Tuesday evening.
Dundy County, home to fewer than 1500 people, shares borders with Kansas and Colorado.
The case of Sheriff Smith raised the ire of an organization of "constitutional sheriffs," promoting the belief that county sheriffs within their jurisdictions have legal authority greater than state and federal officials. Some have responded sympathetically with Smith’s claim he’s being targeted for his staunch support of gun rights.
Dundy County voters elected Smith in 2022 over a write-in candidate, aware that Smith had yet to obtain training or certified to be a law enforcement officer in Nebraska. State law allows uncertified candidates to run as long the newly elected sheriff receives certification within eight months.
The state law provides for a minimum level of competency for sheriffs and police officers. County Attorney Wine said it gives the basics "not only how to enforce the law effectively, and doing investigations effectively and prepare cases, effectively for the county attorney, but also to respect the rights of the citizens."
As provided for in state laws, Smith had the option to seek certification by successfully completing training at the state’s facility in Grand Island. He chose the alternative path, filling out an application claiming he had up-to-date authorization to serve as a law enforcement officer in another state. The law allows credentials to be transferred to Nebraska.
In pursuing each available method, Smith ran afoul of the state law enforcement community.
In February 2023 Smith submitted the required paperwork for the state, claiming he had up-to-date authorization to be a police officer in Colorado, working for a county sheriff in the jail and as a reserve officer.
According to a letter sent to Smith by Nebraska's Law Enforcement Training Academy, an investigator doing a background check found the sheriff had never worked as a fully certified law enforcement officer. Smith obtained his certification in Colorado in 2013 but allowed it to lapse in 2017.
According to statements made by Smith's attorney, Emeka Igbokwe, during a public hearing Smith was living in his car at times during that period.
Absent an active certification from another state, Smith was not eligible to qualify for reciprocity in Nebraska.
The Training Academy sent Smith an application to the Nebraska Law Enforcement Training Academy, offering him the opportunity to take the same courses completed by the deputies in his department.
After reviewing the application, the interim director of the academy turned down Smith's application. The letter stated Smith "admitted during interviews that the information submitted was not correct."
The letter referred to "a pattern of misrepresentation," including "inconsistencies discovered in work history, criminal and traffic history, (and) disciplinary actions, including allegations of sexual harassment."
The academy also found Smith had an “unsatisfactory completion of the physical fitness examination” required for admittance. According to Smith’s attorney the sheriff scored 13 percent. A score of 30% is needed to advance into a training class.
During a brief phone conversation, Smith declined to comment for this story.
At the time, Smith did not challenge or appeal the denial of his application. He did request a "Good Cause Hearing" before the Police Standards Advisory Council to explain why he should be given an exception to Nebraska's certification requirements.
At the hearing, Elizabeth Gau, with the Nebraska Attorney General's office, stated the sheriff had been rejected by the training academy "for not being a person who can be characterized as honest, truthful and trustworthy."
Defending Smith at the hearing, attorney Igbokwe said his client completed the application the best he could while being challenged "with the set of complicated regulations" that made the application process difficult.
The Council, comprised almost entirely of fellow law enforcement officers, unanimously rejected Smith's request.
Only voters can remove an elected sheriff from office, but state law allows the police council to levy a fine equal to Smith's salary as long as he remains on the job. Recently, the three-person Dundy County Board of Supervisors unanimously voted to stop his paychecks.
Some residents of Dundy County, having tired of the controversy, successfully petitioned to stage a recall election. Those ballots have already been mailed to registered voters. Election results are scheduled to be announced on November 14.
In a July 19 editorial in the Benkelman Post, co-publisher Jason Frederick asked the sheriff to resign. He felt a recall was appropriate, noting "questions involving Sheriff Smith's background that I don't believe are suitable for someone holding public office."
Frederick's wife, Amy, is a co-publisher. Her father, Jerry Fries, a former Dundy County Commissioner, initiated the drive to recall Smith.
Through it all, Sheriff Smith remains on the job and defiant.
On Thursday he filed a hand-written motion requesting the United States District Court in Nebraska issue a temporary injunction blocking the recall election in Dundy County. He also asks the judge to re-instate the salary died by the county board of supervisors.
In the accompanying 12-page complaint, Smith, serving as his own attorney, argues the state’s law enforcement certification process and the recall election violate his rights under both the U.S. and Nebraska constitutions.
As of late Thursday, no hearings had been scheduled by the District Court and the county had yet to be served with papers, steps further delayed by the Veteran’s Day federal holiday.
Smith went online seeking donations to make up for his lost wages. On a crowd-sourcing website aimed at causes supporting “spiritual needs,” Smith hopes to raise $20,000 to offset his lost wages. The page is titled “Support A Constitutional Patriot.”
In his solicitation he claims the state’s attempt to get him certified amount to “fear tactics to gain compliance because they have far more sinister agendas,” adding “the moment they can remove one Sheriff, they can remove them all.“
As of mid-November the site lists $4,116 in donations from 70 supportive donors. Most chose to remain anonymous.
Smith labels himself a 'constitutional sheriff," a concept that a county sheriff is the ultimate authority in their jurisdiction, superseding state and federal law.
"The sheriff is an executive branch of the government," Smith told the host of the online podcast Get Off My Lawn. "That's where they're on the same level as the president (of the United States.)"
Host Jon Anderson asked if he felt he was being "harassed" by federal law enforcement if he could "call 911 and ask for help when the ATF shows up at my door?" Smith replied that "as an American citizen, you damn sure have a right to call, but if it happens in (Dundy) county, I can tell you exactly what's going to happen. They're either gonna leave, or we're gonna have a battle."
A fringe group of ultra-conservative law enforcement officers have promoted the philosophy for decades. It gained traction in recent years through opposition to COVID-19 public health regulations and perceived threats of restrictions on assault weapons and their accessories.
Smith has been protesting his failure to earn law enforcement certification during at least three podcast appearances.
During these appearances, Smith presents a starkly different version of the events than the circumstances he did not dispute before the Police Standards Council, claiming he was the target of "small town politics."
Smith told the interviewer that when he moved to Nebraska, "I actually thought this was a big-time conservative state, then I got here, and I found out how wrong I was."
During a podcast affiliated with the Constitutional Sheriffs and Peace Officers Association (CSPOA), Smith inferred he'd been targeted for promoting his county as a Second Amendment sanctuary for gun owners.
In video streams available on the CSPOA website, podcast host Sam Bushman told Smith that he considered him a "hero" in the middle of an "epic battle."
"This is partly why I think they're against you," Bushman said. "You stand up as a sheriff that'll defend gun rights and, a sheriff that believes in the Constitution, and a sheriff that's affiliated with the CSPOA. Like Jesus, you've got a target on our back, sheriff, right from the get-go."
Calling Smith's situation "an outrage" on the Get Off My Lawn program, CSPOA founder Richard Mack suggested listeners seek out fundraisers in support of Smith and "make sure that Sheriff Smith gets paid the next three years."
Sheriff Smith did not appear before the county board of supervisors to give his usual report during its last meeting, sending a deputy to provide his department’s update of routine business.