With Ethics Commission challenged, lawmakers move to police themselves

By David McGrath Schwartz

Sunday, April 26, 2009 | 2 a.m.

The members of Nevada’s citizen Legislature often wear two hats.

There is a doctor-lawmaker testifying in opposition to lifting a cap on damages in medical malpractice lawsuits. Local government employee-lawmakers waiting to vote on measures that would affect tax revenue flowing to their employers. A body shop employee-lawmaker seeking to limit the expansion of other body shops. A landowner-lawmaker sponsoring a bill calling for a train line near property he owns. And lobbyist-lawmakers, whose potential conflicts are obvious.

None of those situations is illegal, according to legislative lawyers. In fact, they say, crossover between day jobs and elected positions is inevitable in a state with a part-time Legislature that meets every other year and pays its members a salary of $7,200.

Yet conflicts, real and perceived, abound in Carson City.

Legislators now want to control oversight of their own behavior, supplanting the role of the independently appointed Nevada Ethics Commission.

Legislative lawyers argued before the Nevada Supreme Court last week that the Ethics Commission should not rule on legislators’ behavior because the commission is part of the government’s executive branch. Giving it authority over the Legislature would violate the separation of powers, they argued.

The Assembly and Senate have both formed ethics committees to police their own members instead of the Ethics Commission. Formed in February, at the start of the session, the legislative committees have yet to meet.

The U.S. House and Senate use a similar model and 40 states have some form of legislative ethics committees through which lawmakers police themselves, according to the National Conference of State Legislatures.

But local ethics experts are skeptical that Nevada legislators will provide adequate oversight of their colleagues.

“I don’t have confidence they’ll adequately police themselves,” said Julie Tousa, president of the Nevada Center for Public Ethics. “I have no confidence they’ll separate personal relationships and make an unbiased decision on cases.”

Tousa has reviewed the language that created the Senate and Assembly ethics committees, and said it’s vague.

Because the committees have yet to meet, it’s unclear how complaints should be filed and handled. The rules provide no penalties for violations. It also appears the committees can’t meet when the Legislature is not in session, leaving it unclear how complaints would be heard in off years. (The constitution allows the Legislature to meets for 120 days in odd-numbered years. The current session ends in June.)

All committee proceedings would be confidential unless the legislator accused of a violation wants hearings held in public.

Lorne Malkowich, director of the Legislative Counsel Bureau, said no complaints against lawmakers have been filed this session.

Senate Majority Leader Steven Horsford, D-Las Vegas, defended the committees’ ability to provide oversight. Constituents will be allowed to file complaints, he added.

Asked whether members would be willing to risk the political consequences and personal relationships to police themselves, Horsford said he did not believe it would be a problem.

“It’s more important to preserve the public trust than to protect relationships,” he said.

Senate Minority Leader Bill Raggio, R-Reno, agreed that lawmakers could better police themselves.

In the 1970s Raggio helped create the Ethics Commission as a way for legislators and other public officials to get opinions on ethics issues. He worries it has evolved into a tool for political opponents to scar the reputation of lawmakers.

“I think the Ethics Commission was designed to be a horse but has become a camel,” he said. “It has evolved too far.”

He noted that the U.S. Senate and House of Representatives have oversight of their own members’ ethics.

“All I can tell you is that if it’s good enough for the Congress of the United States, it’s good enough for the state body,” Raggio said.

The case that brought the issue to a head involves Sen. Warren Hardy, R-Las Vegas, who is president of the Associated Builders and Contractors of Southern Nevada.

Multiple complaints were filed against Hardy with the state Ethics Commission over votes Hardy cast in the 2005 and 2007 legislatures on bills that affected contractors. A two-member panel of the Ethics Commission found there was enough evidence to go forward with only two of the complaints.

The full commission was to consider the case in December. But in November District Judge Bill Maddox ruled that the Ethics Commission had no oversight of legislators’ votes because it was part of the executive branch.

An attorney for the Ethics Commission argued that because the Legislature had passed the law creating the Ethics Commission and giving it oversight of public officials, the Legislature had waived that objection.

Before creation of the Ethics Commission, lawmakers were loath to bring up such complaints, said Patricia Cafferata, executive director of the Ethics Commission and a former state lawmaker.

“They didn’t want to sit in judgment of their own,” she said.

Since the commission’s creation, 19 findings or advisory opinions have been given to state lawmakers, she said.

Even so, the Ethics Commission’s standing has been dwindling for years. Judges have thrown out fines levied on public officials, and the Supreme Court has upheld those decisions. Most recently, the Supreme Court upheld a lower court’s decisions to throw out an ethics violation involving Las Vegas Mayor Oscar Goodman, according to Cafferata.

Those who question lawmakers’ ability to police their own cite the numerous potential conflicts that arise each session.

One situation that has raised eyebrows involves Assemblyman Mark Manendo, D-Las Vegas, who is employed as the marketing and public relations chief for a chain of Las Vegas auto body shops and is the author of a bill that critics say is meant to squelch competition from auto body shops run by insurance companies.

Manendo spoke with legislative counsel before disclosing his employment and voting on Assembly Bill 297, which passed out of the Assembly on Tuesday. Noting that other legislators vote on issues that affect their employment, Manendo said: “I have always disclosed. People in my district know what I do. I don’t hold back.”

The bill, Manendo acknowledged, is intended to prevent insurer Allstate, which owns Sterling Auto Body in North Las Vegas, from expanding its auto repair business in Nevada. But he said the bill will address “a conflict some see in an insurance company owning an auto body shop.”

Manendo claims Allstate tries to steer business to its auto repair shop, an allegation the insurance company calls “untrue.”

“It is a bad bill that is designed to stifle competition in the auto repair industry,” said Jim Haas, Southwest regional general counsel for Allstate.

Assemblyman Bernie Anderson, D-Sparks, and a retired high school government teacher, acknowledged it would be tricky for lawmakers in a citizen Legislature to identify potential ethical problems involving their colleagues and act on them.

“It’s kind of like obscenity,” he said. “I know it when I see it.”

Asked who, if not an independent Ethics Commission, would investigate potential conflicts, he pointed to the media.

“We expect the press to hold us up to the light of public criticism,” he said.

David McGrath Schwartz can be reached at (775) 687-4597 or at [email protected].