Friday, May 2, 2003 | 5:08 a.m.
WEEKEND EDITION: May 4, 2003
How many Clark County commissioners does it take to make a majority?
With a seven-member board, the answer should be obvious. But with absences and abstentions from votes, the question has turned into a debate that is anything but simple.
State Sen. Terry Care, D-Las Vegas, thought a bill he successfully sponsored two years ago made it quite easy. In Clark County, he says, "you have to get four" votes for any action.
His bill was intended to ensure that county commissioners and city council members throughout Southern Nevada would be accountable to the voters and do the job they were elected to do, Care says.
But in practice for Clark County or Las Vegas, the two biggest local jurisdictions in the state, little has changed. The problem is that as part-time elected officials they have to make a living, they say.
Their work will bring with it inherent conflicts. Rather than face ethics allegations, legal tangles or voters' wrath, they have to sometimes bow out.
Add to the mix the fact that politicians, like anyone, get sick or have personal reasons for missing business, and the result is that some high-profile decisions in recent years have been decided by a fraction of the total board.
The issue also has taken on additional importance this year for the commission, as at least four commissioners could abstain because of conflicts from a popular proposal to limit development near Red Rock Canyon. All four have indicated they support the ordinance but may have to abstain on the issue.
Developer Jim Rhodes, who has hired four commissioners for various legal and land-use work over the years, is fighting a proposal that would limit his development options on 2,400 acres atop Blue Diamond Hill, on property surrounded on three sides by the Red Rock Canyon National Conservation Area.
Rhodes already has filed a lawsuit, so far unsuccessful, to block Commissioner Mark James from introducing the Red Rock Overlay, which would keep high-density residential or commercial development off the property Rhodes purchased last month for $54 million.
And Rhodes' representatives have suggested that they would like James and Commissioners Rory Reid, Bruce Woodbury and Chip Maxfield to abstain from the commission discussion and vote on the overlay. All four have worked for Rhodes -- or work for firms that have worked for the developer -- but all four have supported the overlay ordinance that Rhodes strongly opposes.
The issue has a familiar ring to those who have watched the County Commission over the years.
The 2001 Spring Valley casino vote, championed by former Commissioner Erin Kenny, led Care to successfully propose a bill requiring at least four affirmative votes to pass anything. (A specially created state board ultimately found the casino approval violated a state law limiting new neighborhood casinos and threw the decision out.)
That commission vote was the impetus for Care's bill. Care argued that too often the concerns and needs of residents have been abrogated by elected officials bowing out of important decisions. The 2001 Legislature agreed, passing a law that said only a real majority of local commissions or councils could pass a law or decide a zoning issue.
Care said his intent was to close the possibility of abstentions or absences affecting the final decision.
But ambiguities in his 2001 reform has Care pushing for another law. The same ambiguities -- a question of the interpretation of his 2001 effort -- has also thrown the issue of a contentious land-use reform bill affecting the Red Rock Canyon area into a governmental morass.
"Elected officials are elected to represent the voters on the issues that come before them," Care said. "Last session, the bill was real simple. It just said if you have an elected body, then nothing can happen unless a majority of the members vote in the affirmative."
Any observer will see that fewer than four commissioners frequently make final decisions on such issues, however.
Both the state Legislative Council Bureau and the district attorney's office have interpreted the new majority rule to exclude abstentions. When a commissioner abstains from an issue because of a self-described ethical conflict, "the board shrinks," legislative counsel Brenda Erdoes explained.
Care said the problem was an error in the way the original majority-reform bill was written. It left intact other provisions that referred to the impact of ethical abstentions on the size of the board.
He has proposed a new bill -- Senate Bill 16 -- in this session to correct the oversight. Originally, the bill would have eliminated the possibility of abstentions "shrinking" the size of the board: Four commissioners would be needed on the County Commission for any decision.
But under pressure from other legislators, that proposal was modified to say that the only abstentions that would count would be by those commissioners who had received written approval from the county counsel beforehand, agreeing there was an ethical conflict.
"It's not what I wanted, but after all this is a sausage factory up here," Care said from Carson City. "If this is what we have to have, then so be it.
"A verbal abstention won't do it anymore."
The bill passed the Senate 20-1 on April 7, and is now in the Assembly's Government Affairs Committee.
Paul Brown, Southern Nevada director of the Progressive Leadership Alliance of Nevada, said he agrees with Care's legislation. He believes abstentions by public board members are not always justified.
"It does seem to me that people use abstentions to either advance their client's cause or to cover their own tails," he said.
Brown also is aware that if a member of a county commission or city council has an ethical conflict and votes anyway, that can land the member in hot water.
More than a half-dozen councilmen and commissioners have been accused of ethical conflicts in the last four years. While most of those charges have ultimately been dropped, they have left public officials leery of potential conflicts.
"We don't need anyone to tell us that it is our obligation to vote whenever possible, but the same Legislature has passed laws that require us to abstain in some situations," Woodbury said. "You're damned if you do and damned if you don't, depending on what side of an issue the person's on."
Woodbury and Reid warned that Care's bill, if passed, could throw the commission into disarray.
"I share Terry's concern because I believe we shouldn't use the ethics laws as a shield," Reid said. "The problem is, as a practical matter, I just don't think it's possible.
"At a typical meeting we will have hundreds of items. It would put a completely unworkable burden on the district attorney's office to do this."
Not all local officials share those fears.
"I think it's a good middle-ground approach," said Brad Jerbic, Las Vegas city attorney. "If we learn about a conflict at the last minute, it might be inconvenient but not impossible to do it."
A review of city records shows only one or two abstentions on most issues. The same applies to the county. But several commissioners abstain more frequently than others.
Reid, Woodbury and Maxfield, particularly, have had to abstain because their firms have connections to people before the commission. Often the connection is peripheral.
Reid, for example, has abstained when someone has business before the commission and also works with his firm -- Lionel Sawyer & Collins, Nevada's largest firm, with 85 attorneys. Reid rarely works directly on the issue before him, but still abstains if his firm is connected to the issue.
The issue affecting James on the Rhodes-Red Rock issue is, to some, even more distant. James said he never gave direct advice as Rhodes' attorney on Red Rock, just that he discussed the issue in general terms as a political candidate for the commission seat -- a distinction that Rhodes' lawyers don't agree with.
James, however, also represented the developer in a recent divorce. For Rhodes' lawyers, that should be enough to force the commissioner to step away from an issue.
The Red Rock issue is a rarity. Instead of an ethical conflict involving potential approval of an issue, the developer wants to keep commissioners from voting because they would limit his development options on Blue Diamond Hill.
Most agree that, in some situations, elected officials must abstain because of ethical conflicts. Jerbic said the important thing is that Care's new legislation allows the board to shrink if there is an abstention for ethical reasons.
Without that, some votes would truly be impossible, he said.
But Reid said requiring the district attorney to flag and write opinions on potentially dozens of issues would bring the county commission's work to a grinding halt.
The county counsel for the commission's land-use work -- which already routinely takes two full days a month -- shares at least some of those concerns. Assistant District Attorney Rob Warhola said he also has concerns that the bill would put his office in the position of being an arbitrator, helping to decide who votes.
But that is already a role that Warhola and his colleagues are likely to play in any upcoming vote on Rhodes' development proposal near Red Rock Canyon.
So far, Warhola has argued that the commissioners can participate in the vote. But the issue is still being studied. If the board shrinks because of ethical conflict, then three commissioners would decide one of the county's hottest political issues.
It could be a virtual rerun of the Spring Valley casino decision that sparked the reform issue in the first place.
Care said he hopes such a vote on the Rhodes issue or any other issue does not come to such a scenario. He argued that it could ultimately undermine the concept that county commissioners are part-time officials with outside jobs.
In representative democracy, he said, the voters expect the commissioners to be able to participate. "Conflicting out" the majority of the board means that voters aren't fully represented, Care said.
"That makes a mockery of the process."
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