State law backs three-person Strip vote

Fairness wasn't a question when less than half of the seven elected members of the county commission voted to award a controversial $33 million golf course project to a Las Vegas developer this week.

Fair or not, the commissioners had state law on their side. Tuesday's 3-0 vote with four abstentions by the Clark County Commission awarded the project to golf course developer and sports gambler Billy Walters.

"I can't address the issue of fairness -- all I can say is that the law is what it is," said Jan Needham, a state attorney who advises the Legislature.

"Laws pretty much are made by looking at all of the possibilities that can happen. But people can go to the Legislator to try to change them."

Two state laws were used to determine a quorum in the golf course case, which has come under much scrutiny because high-powered individuals were behind all three applications -- some of whom were longtime friends of some of the commissioners.

Three of the abstentions -- Commissioners Bruce Woodbury, Mary Kincaid and Lance Malone -- were because of current or former connections with applicants. Had they voted, they could have been dragged before the Nevada State Ethics Commission for discipline hearings.

One of the state laws in question dates back to 1865 -- the year the Civil War ended -- and defines a quorum for county commissioners as "a majority of the board ... for the transaction of business."

Simply put, the seven-member commission needs just four members to conduct business. That's where the second law -- one that is just 21 years old -- comes in.

When ethics laws were enacted in 1977, state lawmakers felt a need to address what would happen if elected officials declared they would abstain from voting to avoid ethical conflicts.

Lawmakers came up with this: "If a member of the legislative branch declares to the legislative body ... in which the vote is to be taken that he will abstain from voting because of (conflicts of interest) the quorum to act upon (the matter) is reduced as though the member abstaining were not a member of the body."

Simply put, the board shrinks and so does the quorum. So, a quorum for four or five members is three -- the number of commissioners that voted Tuesday.

Interestingly enough, if six of the commissioners had abstained from voting for conflict reasons, it would have left a board and quorum of one -- one very powerful individual as far as that agenda item would be concerned.

In neighboring Arizona, that would not occur because commissioners there need only declare their conflicts -- even substantial ones -- and may still vote.

"Our ethics commission was abolished at least 20 years ago and replaced with statutes, which list every conceivable remote conflict of interest," said Dean Wolcott, deputy Maricopa County Attorney, who is counsel for the Maricopa Board of Supervisors. "Anything not listed is a substantial conflict."

If three of the five Maricopa board members declared remote or substantial conflicts of interest at least one of them would have to vote, and all three of them could vote if they wished, Wolcott said.

"Our law recognizes that the business of running the county is far more important (than a potential conflict)," Wolcott said.

Woodbury has suggested that elected Nevada officials should only be required to declare their conflicts and then be allowed to vote.

A local parliamentarian also has trouble with the fact that the state allows less than 50 percent of a panel to rule.

"I think that three of seven (commissioners) should not be a quorum," said Phyllis Silvestri, a Las Vegas parliamentarian since 1968 who has served in that capacity for the Clark County School Board and many other groups.

"State law naturally supersedes Roberts Rules, but this (three of seven members voting) would not have been a quorum under any parliamentary authority. However, if you can't get a quorum, you can't do business."

The National Association of Counties won't touch the issue of quorums.

"It would be unfair for us to address quorums because there are big differences in counties from state to state," said Tom Goodman, spokesman for the Washington D.C.-based organization. "Boards are different sizes and have different responsibilities.

"There is a county in Wisconsin that has 30 members on its board. Many boards of supervisors in California have five members.

"In some counties in New Jersey they have an elected executive administrator who has veto power over the board. Some boards of legislators in New York counties have the power to override vetoes. There are just so many variations."

Goodman said, however, he believes it would be more unfair for a commissioner with a conflict to vote than it would be for the fate of a project to ride on less than half the commissioners who have no conflicts.

"Certainly, an elected official who feels he has a conflict should excuse himself," Goodman said.

Walters, who owns the Desert Pines golf course, will develop 155 acres of publicly-owned land on the Strip south of Russell Road into a 27-hole course.

He got that blessing from eligible voting members Erin Kenny, Myrna Williams and Yvonne Atkinson Gates. For reasons other than conflict, Commissioner Lorraine Hunt abstained.

The losing proposals were the Gary Player Design Group and Club Corp. of America, which had as one of its partners tennis star Andre Agassi, and the US/GP-LV Partnership that wanted to build a 2.9-mile auto racetrack, which was backed by longtime political consultant Sig Rogich.

Rogich, a longtime friend of Woodbury, offered to donate his financial interest to charity and in effect pull out to give his group's proposal a chance to pass.

Kincaid said she was friends with representatives of all three applicants -- a situation she maintains eliminated the conflict -- and Malone abstained because his father once worked for Walters at one of Walters' courses.

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