Jon Ralston on an ethics query with an obvious answer

By Jon Ralston

Friday, Feb. 8, 2008 | 2 a.m.

It’s a world where black is painted over with white, where the obvious is obscured by legalisms or spin. But some examples are so egregious that not even a talented spinmeister or barrister extraordinaire can fix them.

Consider this simple question: Should a member of the state Ethics Commission, whose job it is to sit in judgment of elected officials, lobby those elected officials on behalf of clients?

If your common sense has not taken a leave, the answer is obvious. In fact, many of you probably are wondering why such an inane question needs to be asked. The answer: because the issue has been raised by the state’s newest ethics commissioner, John Moran III, who recently lobbied the County Commission and the City Council on high-profile matters.

And of course, because it’s Nevada. Only here could ethics commissioners not only serve as lobbyists but actually be advised that they can do so by the panel’s staff. This despite a statute that, as the governor’s legal counsel, Josh Hicks, put it, yields a simple interpretation: “I don’t think an ethics commissioner should lobby.”

Ah, common sense from a government official. How refreshing.

The statute governing the Ethics Commission is plain on its face it says no one on the commission may: “communicate directly with a member of the legislative branch on behalf of someone other than himself or the commission, for compensation, to influence legislative action, while he is serving on the commission.”

In case you are wondering, the definition of a member of a legislative branch also is clear in the law it means “any member of the Legislature or any member of a board of county commissioners or governing body of a city or other political subdivision who performs a legislative function.”

You know, like a city council or a county commission.

Obvious, right? End of story, right? Not here, not now, not yet.

Patty Cafferata, executive director of the Ethics Commission, said commissioners for years have been told they can’t lobby the Legislature but they are free to lobby local governments, as some currently do. But how can that be, considering the plain language of that law?

“I concede it’s (the language) there,” said Cafferata, who came to the panel only a few months ago. “But nobody has interpreted it that way.”

The history, though, is not consistent. Ethics commissioners have resigned because they wanted to lobby local governments. And others have been cautioned that “legislative branch” also refers to local governments.

But Cafferata told Moran he could lobby local governments when they talked Jan. 28, right in the middle of a controversial zoning item the attorney was pushing for developer Stuart Apollo an item that was withdrawn Wednesday after overwhelming neighborhood opposition.

Others have tried to argue that another statute governing public employee behavior conflicts with the ethics commissioner lobbying prohibition because it says:

“A member of the legislative branch, or a member of the executive branch or public employee whose public service requires less than half of his time, may represent or counsel a private person before an agency in which he does not serve. Any other member of the executive branch or public employee shall not represent a client for compensation before any state agency of the executive or legislative branch of government.”

But that is a more general law and there is a Latin term for what should happen in such cases ex specialis derogat generali. That is, a specific law abrogates a general law. Or, as Hicks succinctly put it, “I would prefer that an ethics commissioner go by the Ethics Commission statute.”

Well, of course.

Again, a triumph of that elusive quality of common sense.

But all of this legal gobbledygook cannot obscure what should have been manifest to everyone involved: It is unethical for an ethics commissioner to lobby people he or she may have to judge.

Cafferata says the panel’s staff is researching the law and will reassess the advice they give to prospective commissioners. There’s a common-sense approach that will help future appointees, although it now appears to be moot with Moran.

This week Hicks talked to the newest ethics commissioner about lobbying and, he said, Moran “agreed that it’s best for him to do no lobbying whatsoever.”

It can be on holiday for a while but, even in government and politics, common sense has to return sometime.