Wednesday, April 16, 2003 | 11:21 a.m.
By Launce Rake and
Erica D. Johnson
A district judge on Tuesday denied a local developer's request to prevent a Clark County commissioner from acting on an ordinance to restrict development near Red Rock Canyon.
Steve Morris, an attorney for developer Jim Rhodes, had asked District Judge Kathy Hardcastle to block Commissioner Mark James from introducing, discussing or voting for the proposed Red Rock Overlay District ordinance.
The ordinance would set development standards for private property in the conservation area and Blue Diamond Hill and would prevent high-density construction near the scenic canyon, which is a few miles outside Las Vegas.
Hardcastle said it was too soon for the court to intervene in the matter because there is no ordinance at this time and the issue has not come before the commission for a vote.
Attorneys for James and Rhodes dispute what happened before the commissioner was elected in November. James took office in January.
Morris argued that James' firm represented Rhodes prior to the election, and Morris said James had advised the developer on how to get zoning approval to build a residential development on the property.
James said he spoke to the developer only as a candidate and soon-to-be officeholder and that as an elected official he should not be barred from "doing the right thing."
Hardcastle agreed, saying that while an attorney has a duty to former clients to uphold attorney-client privilege, it doesn't mean the attorney can never take a political stance in opposition to the client's interest.
"It is not necessary for this court to engage in a preemptive strike," she said.
Mary Miller, assistant district attorney and county counsel, said Hardcastle's decision was appropriate because Rhodes has made no formal application to change the zoning on Blue Diamond Hill -- the land is still home to a gypsum mine and would now be allowed at most one home per two acres.
"Mr. Rhodes doesn't even have an application pending," Miller said. "If you did something different, you would have the court packed with speculative lawsuits. ... You would have anybody running to court."
Miller also said the county's position is that James and other commissioners can act on the ordinance -- and the district attorney will defend the right to act -- because unlike a zoning request, the law applies to anyone.
The issue has similarities to an issue that arose last year, when then-Commission Chairman Dario Herrera supported a billboard ordinance that might have benefited clients of his wife's company.
County counsel Rob Warhola said then that Herrera could participate in the discussion and vote on the issue. Herrera's support for the ordinance generated an ethics complaint by community activist Lisa Mayo-DeRiso, but the state ethics board ultimately threw out the complaint.
This time, Mayo-De Riso, who supported James' campaign and supports efforts to restrict development near Red Rock, is on the other side, arguing that there is not an ethical issue.
The difference, she said, is that James does not stand to gain anything from his support of the overlay district, which would hurt his one-time client.
Miller noted that the rules governing the behavior of an elected official are not the same rules governing an attorney. An elected official needs the flexibility to consider the laws that work best for the community, Miller said.
"What we're seeing in this particular lawsuit is a mixing of Supreme Court rules governing attorneys and statutes governing public officials," she said. "They don't always mix well. One doesn't necessarily preempt the other."
But James said that is not an issue. He said he never advised Rhodes, who did not attend the hearing, on any legal matters and that his position on zoning near the canyon never changed.
"I'm glad the court saw this for what it was-- an attempt to stop me from doing what I was elected to do," he said. "Now I'll go on with doing my job."
James said he would introduce the ordinance at today's commission meeting as planned.
Morris on Tuesday had argued that he was not attempting to prevent the commission from voting on the matter, but that James should abstain from the introduction, discussion or vote on the ordinance.
He said James gave Rhodes advice on a number of issues and vowed that he would support Rhodes' development at the canyon, a venture James now publicly opposes.
"The Clark County Commission can do what it wishes, but Mark James can't be a part of the process," he said.
"You can't disregard or throw away the obligations you have to a client by virtue of having successfully run for public office. You can't wear two hats."
Defense Attorney Don Campbell denied that his client ever advised Rhodes on development at Red Rock Canyon, or any other matter.
"That premise is absolutely and unequivocally false," he said.
If Rhodes is dissatisfied with James' ethical practices as an attorney, he can file a complaint to the State Bar Disciplinary Commission or a grievance with the State Ethics Commission, he said.
"If you have a beef with Mr. James, there's an avenue of relief," he said. "File a complaint, Mr. Morris."
The U.S. Supreme Court has ruled that a judiciary cannot enjoin activities of an elected public official, Campbell said.
Attorneys for James said his vote on the ordinance is vital because it could be the deciding factor in the commission's decision to approve or deny the ordinance.
They maintain that Rhodes has also hired the law firms of Commissioners Bruce Woodbury and Rory Reid and the land-use firm of Commissioner Chip Maxfield in an effort to block their votes as well.
Morris said he would consider filing a complaint with the state Ethics Commission if James votes on the issue.
Morris also said he would renew the motion for a restraining order if the commission formally introduces the ordinance.
"This is not over," he said.
The hearing came after Rhodes filed suit against James, alleging the commissioner provided advice on how to secure zoning needed for the development of more than 2,000 acres on Blue Diamond Hill, which Rhodes bought last month for $54 million.
Proposals to develop the property have sparked opposition from Red Rock enthusiasts and residents of the small village of Blue Diamond. Representatives of Rhodes, however, argue that development would be better than allowing the active gypsum mining to continue.
David Fott, an associate professor of political science at the University of Nevada at Las Vegas, said the concern for most people will not be the conflict of interest allegations, but instead a desire to see an appropriate law in place.
"Rhodes should be more concerned with showing why his proposal would be a good idea," said Fott, who has studied and written on ethical issues. "If James was speaking as a candidate or lawyer, it seems that he could give advice. What's to prevent him from getting on the commission, looking at the issue more thoroughly, and deciding how he would vote?
"Unless I see some ethical misconduct on his part, I'm more concerned with James making the right decision on the issue."
Craig Walton, coordinator of UNLV's Ethics and Policy Studies Program, said one big question is the issue of when James gave advice to Rhodes, and how the advice was given -- as a lawyer, or as a prospective or sitting public official.
Until that question is answered, the ethical question is "a mess," Walton said.
"This is a touchy area," he said. "If you called five guys in legal ethics, you would get five different answers."
But even if the answer is that James had a fiduciary responsibility to Rhodes, the commissioners still has a responsibility to the voters of Clark County, he said.
"The oaths to uphold the law of the United States and the state of Nevada are still binding, but the obligation to you and I are deeper," Walton said. "He has to already know, or find out, what is best for all of us. He is our person. He is our elected representative."
Ted Jelen, chairman of the UNLV political science department, said such questions of conflict are inherent when commissioners or other public officials are officially part-time employees, with full-time outside jobs.
"You can have stricter (ethics) rules if you have full-time employees, but I don't see that happening," in Clark County, Jelen said.
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