Las Vegas Sun

March 28, 2023

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State law loses even more teeth to punish lawmakers’ lapses

Steve Ross

Steve Ross

Ignorance of the law is no excuse for breaking it, the old legal saw goes. But that is not the case when it comes to Nevada’s ethics laws.

Nevada politicians who violate ethics laws face no penalties if their acts are not deemed “willful.” It’s a crucial loophole in the rules that should ensure elected officials act in the public interest, according to ethics watchdogs.

The issue arose again last week when the Nevada Ethics Commission found Las Vegas Councilman Steve Ross, who is head of the Southern Nevada Construction and Building Trades Council, had violated ethics rules for a series of votes on the proposed city hall — a project that could benefit the union members he represents in his day job.

Ross had requested an opinion from the Ethics Commission in 2007, when he was first up for the union leadership post. At the time, the commission issued an advisory opinion saying Ross could take the job, but warning it would create many potential conflicts of interest with his elected position.

Despite its previous warnings, the commission, in finding last week that Ross’ city hall votes had violated ethics rules, determined the violations were not willful.

Ross maintains he is innocent, and that he followed the legal advice of the city attorney. When asked if he might appeal the ruling to District Court, he said he is considering “all options.”

Primary job ‘to teach’

Regardless, Ross’ case demonstrates what critics say is a shortcoming in Nevada law — namely, that even when elected officials violate ethics laws, they typically face neither penalties nor the potential to be removed from office.

That’s not by coincidence. The commission has decided that its primary job is to teach public officials about ethical conduct rather than punishing them, according to its executive director, Caren Jenkins.

Removing politicians from office, she said, is the job of voters.

“This commission is not interested in slamming doors and kicking people out of office,” Jenkins said. “Members want to give public officials the opportunity to follow the law.”

Nevada ethics watchers, however, complain that the willfulness provision eliminates any potential for real punishment.

Bill Flangas, a member of the Ethics Commission for eight years until his term ended in 2007, said politicians who argue their ethical breaches weren’t willful are akin to criminals who claim, “I didn’t know the gun was loaded.”

“Nevada ethics law is well written, well applied,” Flangas said. “But I think it’s totally diluted and compromised by this ‘willful’ business. It takes all the teeth out of the law.”

The board hardly ever found ethical violations to be willful during his years on the commission, Flangas said.

Clark County Commission Chairman Rory Reid, a Democrat running for governor, released proposed ethics reforms last week, noting that the requirement of a willful finding is “dubious and encourages citizen cynicism — not to mention violations.”

Reid proposed mandating ethics education for all state employees, officials and lobbyists. (Elected officials must sign a form saying they understand state ethics laws.)

Still, many elected officials are critical of the state’s ethics laws.

Most state offices, including city councils, county commissions and the Legislature, are part-time jobs. This encourages a citizen Legislature that is familiar with the experiences of average citizens. As a result, conflicts are inevitable, they say.

Ross maintains that he followed the advice of the city attorney, Brad Jerbic, and the ethics system is being manipulated by his political enemies.

“A person like me, certainly I consider myself to be man of character, of high moral values,” he said. “This is a challenge. It’s hard to get good citizens to run for political office when citizens on the opposite side use these tools for their own political gain.”

Law changed in 1991

Before the Legislature changed the state’s ethics laws in 1991, the commission was merely an advisory board. That year, penalties were added for cases in which the board found the violations were willful.

The only elected official to face impeachment for violating state ethics laws was the late Kathy Augustine. The Ethics Commission found she willfully violated ethics rules by using her public office to support her re-election campaign. The charges went to the state Senate, which censured her on one count, but allowed her to fulfill the remaining two years in her final term in office.

State law says that the first willful violation of an ethics law will be accompanied by a fine of up to $5,000; the second, up to $10,000; and third up to $25,000.

With the first and second willful violation, the commission can decide whether proceedings should be initiated to remove the elected official from office. With the third finding, it is mandatory that the process begin to remove an official from office — either in court or in the Legislature.

Law changed again

In the future, it will be more difficult to prove that a politician willfully violated ethics law because of a little-noticed change in the statute made during the 2009 Legislature.

At the urging of ethics commissioners, the Legislature in May clarified the law defining a “willful violation.” Instead defining it as something a public officer “knew or reasonably should have known,” the law now defines it as acting “intentionally and knowingly.”

This might seem like a fine legal point. But it in essence makes it harder to find a willful violation, according to Patty Cafferata, a longtime Nevada politician and past executive director of the commission.

“It certainly made it easier for elected and public officials to get off without a penalty,” said Cafferata, who retired from the board in June. “I think it’s unfortunate. I always believed that the Ethics Commission was the people’s protection of misconduct from elected and public officials. It’s the watchdog. And it’s not there to whitewash misconduct by public officials.”

Jenkins said the new language defining willfulness has to be interpreted by the Ethics Commission. Until then, it’s too soon to pass judgment on its potential effect.

But Flangas said he thinks the original provision requiring willful violations for punishment was placed in the law to protect politicians, not the public interest.

“I don’t want to paint the entire Legislature with that decision, but personally I believe it was put into the law to protect public officers, no matter what they did,” he said.

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