Ethics rulings baffling to legal advisers

Following legal advice on the subject of ethics has become risky for elected officials in recent months.

Even those being called upon to give that advice acknowledge they're baffled by a series of recent Nevada Ethics Commission rulings that have changed the way ethics laws are interpreted.

The ethics panel has raised the standard for disclosing and abstaining from matters to include close friends of elected officials. And in the process, according to insiders, it has created near-chaos within local governments.

On Monday -- amid a recent Ethics Commission ruling that hit City Councilman Gary Reese for not abstaining on a matter involving a friend -- the City Council put off its busy zoning and planning meeting because it was afraid of being second-guessed by the ethics panel.

A similar situation occurred at the Clark County Commission two months ago after two commissioners were rapped for not disclosing friendships before voting on airport concessions.

"I think we have reached a level of absurdity, where these people (the Ethics Commission) may shut down government as we know it," City Councilman Larry Brown said Monday, as the City Council voted to reschedule the zoning meeting next month.

Afterwards, City Councilman Arnie Adamsen echoed similar words.

"We're not being flippant, facetious or defiant," Adamsen said. "We just don't know how to proceed."

Adamsen said Deputy Attorney General Louis Ling, the Ethics Commission's legal counsel, told him over the weekend to take the advice of City Attorney Brad Jerbic when determining whether to disclose or abstain on a vote.

There's just one problem with that.

Jerbic said he's "absolutely confused" in the wake of the Reese decision.

"I feel there's a standard being applied after the effect, certainly to Gary, and I'd like to know what the standard is from this point on," he said.

The Ethics Commission ruled Aug. 14 that Reese had violated the law when he failed to abstain from a vote against a seafood restaurant after disclosing his friendship with an influential opponent of the project.

Reese, who had relied upon the advice of Jerbic and two of Jerbic's deputies, was shocked by the reprimand. He has vowed to fight it in court.

"I don't have any hidden agendas," Reese said. "You try to do what you're supposed to do, and that's what I did."

Added Jerbic: "When a person asks an honest question and gets an honest answer, it hardly seems right they should be held accountable for following that advice."

Clark County Counsel Mary Ann Miller, whose legal advice to county commissioners recently was questioned by the Ethics Commission, said she's just as confused as Jerbic.

"We thought Gary Reese did the right thing by seeking advice and taking a conservative approach." Miller said. "My advice would have been the same.

"When you don't have any obvious pecuniary interest in a vote and it's not something that would affect the judgment of a reasonable person, it seems that prudence says all you need to do is disclose. You shouldn't have to abstain."

In late June, two county commissioners, Yvonne Atkinson Gates and Lance Malone, were scolded by the ethics panel for not disclosing relationships to some of those seeking lucrative D Gate concessions at McCarran International Airport before voting to approve the concessions. The commissioners had relied on the advice of Miller during the selection process.

Both Jerbic and Miller said they have concerns now about how to counsel their clients in the future.

Ling said he believes much of the confusion will be cleared up when the panel issues its written opinion on Wednesday in the Gates-Malone case. The opinion is expected to establish disclosure guidelines.

"I think the Nevada Supreme Court has made it clear that the body that is supposed to interpret these ethics statutes is the Ethics Commission," Ling said. "Reviewing courts are supposed to give the Ethics Commission interpretations great deference."

But not everyone agrees with that assessment.

Even within the attorney general's office, there has been confusion over the ethics panel's actions.

Two years ago, the panel rapped Nevada Gaming Commission Chairman Bill Curran for not fully disclosing a professional conflict during the disciplinary proceedings involving former Horseshoe Club executive Ted Binion.

Curran, a lawyer, said the attorney general's office had advised him he didn't have to explain his conflict. So he didn't.

But the Ethics Commission disagreed with that advice and found that Curran, even though he removed himself from Binion case, had violated the law. Furthermore, the panel said Curran had an obligation to seek its advice before consulting with the attorney general's office.

Not surprisingly, that didn't go over to well with the attorney general's deputies assigned to the Gaming Commission.

"Lately, it seems as though we're being forced to sit around and wait for Ethics Commission opinions before giving advice," said one attorney on the public payroll. "It's making it hard for people trying to do their jobs."

Added another legal insider: "I think the Ethics Commission has raised the bar to a level of what it expects public official to do, not what a public official can do under the law."

Most agreed the Legislature, which created the ethics panel, may have sort things out next year.

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