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Carrigan and an Obligation to Seek Ethics Advice
Monday, October 3rd, 2011
Robert Wechsler
Yet another brief has been filed in the Carrigan v. Commission on
Ethics of the State of Nevada case, this time the EC's supplemental brief on remand to the Nevada Supreme Court.
The principal issue discussed in this brief is vagueness, which has stood in the background behind First Amendment issues of free speech and free association. The free speech arguments were put to rest by the U.S. Supreme Court, and the free association arguments were found not to have been originally raised, so they were dismissed.
In a blog post on the oral arguments before the U.S. Supreme Court, I discussed some of the issues raised in this brief, because they were discussed by the justices, even though their decision itself said nothing about vagueness, because the Nevada courts had not reached this issue. Now it will be discussed, and its discussion raises far more interesting and important issues than how the First Amendment applies to government ethics.
First, let me repeat the nutshell version of the Carrigan case. Carrigan is a member of the Sparks City, NV council. His close friend, campaign manager for three campaigns, and principal vendor of the campaigns became a consultant to a developer with a matter before the council. Carrigan asked the city attorney if he could participate in the matter, and the city attorney gave him the green light (as city attorneys so often do). Carrigan participated, someone filed an ethics complaint, and the state ethics commission, which has jurisdiction over local officials, found that Carrigan had violated a "catch-all" conflict provision in the state ethics code (Nevada Revised Statutes §281A.420.8(a)), which defines "commitment in a private capacity to the interests of others" (an unusual term) to include family and business relationships, as well as "any other commitment or relationship that is substantially similar to a commitment or relationship described in subparagraphs (1) to (4), inclusive, of this paragraph."
Vagueness
Most basic conflict provisions are vague, in the sense that it is not clear from the language of the code exactly which conduct with respect to which people is prohibited. No definition of "interest" or "benefit" can be completely clear. And many codes use the language of the "reasonable person" or "impaired judgment" or "influence." All of these terms are necessarily vague.
With vague terms such as these, how can a local government official get due process? If there was nothing but the language of ethics provisions and enforcement, it could well be argued that ethics provisions could not be enforced outside of a limited number of black-and-white situations.
An Obligation to Seek Advice
But there is something other than language and enforcement. There is advice. And there are advisory opinions that let officials know about past advice. As Justice Kagan said in the oral argument in Carrigan, "There was an advisory process that was set up by the Nevada commission here. ... Mr. Carrigan chose not to use it. But he could have gone to the commission, said: What do you think about this relationship? Does it fit or does it not fit?"
The EC brief cites U.S. Supreme Court decisions that have "held the availability of such mechanisms to be critically important to vagueness analysis. E.g., Letter Carriers, 413 U.S. at 580 ('It is [ ] important . . . that the Commission has established a procedure by which an employee in doubt about the validity of a proposed course of conduct may seek and obtain advice from the Commission and thereby remove any doubt there may be as to the meaning of the law'); Broadrick v. Oklahoma, 413 U.S. 601, 608 & n.7 (1973) (State Personnel Board can 'rule in advance on the permissibility of particular conduct')."
This view implies an obligation to seek advice, which in a well-designed ethics program may even be made express. By "well-designed" I mean that at least informal advice is available immediately or within a few days, and that everyone who is under the jurisdiction of an ethics commission has the right to obtain such advice.
Some ethics codes limit advice to officials and employees, but cover or affect others, such as candidates, contractors, and those who give gifts or seek permits or grants. This is wrong. Advice should be open to anyone under an ethics commission's jurisdiction, and even to those directly affected by ethics provisions, even if they may not be directly penalized (e.g., a contractor whose contract is subject to avoidance). It's useful to have everyone who deals with government get involved in an ethics program through its most important program, ethics advice. It's also useful to allow citizens and, especially, citizen groups to ask for advice in order to better ensure that ethics codes are followed. Even if officials and employees have an obligation to ask for advice, it is important that citizens be able to seek advice for those who manage their community when those officials fail to ask themselves.
The Importance of a Monopoly on Ethics Advice
Carrigan did something worse than fail to seek advice from the state ethics commission: he sought advice from the city attorney. By doing this, he made it seem as if he were being responsible. But he was not. And the city attorney should have told him this. And the city attorney should have explained to Carrigan that if he advised Carrigan that he could participate in the matter, it would be seen as forum shopping, that is, going to the person he believed would allow him to do what he wanted.
Ethics advice cannot be something you can seek from whomever you want. An ethics commission must have a monopoly on ethics advice in order to ensure consistency (equal protection) and in order to create a public body of advice on which other officials can rely. In the oral argument, Justices Kagan and Breyer noted that the recusal rules for judges were worked out over the years case by case, in a common law approach. When government attorneys, and others, give ethics advice confidentially, without any accountability or transparency, and with an interest more in their "client" than in maintaining the public trust, this seriously undermines this case-by-case approach, affecting not only advice but also, as is seen here, enforcement.
It is worth noting that Carrigan argued that the vagueness of an ethics provision led to its arbitrary enforcement by the ethics commission even though he had sought the advice of an individual who was not even part of the ethics program and could not be held to any consistent application of ethics laws since his advice was confidential. And how could an ethics program be expected to enforce laws against officials in a non-arbitrary manner when those officials can ask anyone for advice and thus, in effect arbitrarily, prevent the ethics commission's enforcement of the law?
The Line Between Advice and Enforcement
Requiring officials and employees to seek ethics advice would do more than deal with the issue of vagueness. It would remove the line between advice and enforcement that causes the many gray areas of government ethics to exist in a sort of limbo outside of the ethics process, where confusion and accusations undermine the public trust. By this I mean that the media, blogs, and complainants are constantly accusing officials of unethical conduct that either falls in a gray area or outside of government ethics altogether.
It might seem unfair to penalize an official for not withdrawing from a matter where the law did not clearly apply to the situation, but it is not unfair to advise an official to withdraw from participation in a matter where there is an appearance of impropriety, but the law does not clearly prohibit participation. If an official is required to seek advice regarding gray area matters, then an ethics officer or commission can create an increasingly clear interpretation of the law that will bring advice and enforcement together and eventually make enforcement all but unnecessary.
Requiring officials to seek advice would make it clear, in a way nothing else could, that government ethics is nothing like criminal enforcement, in fact, that government ethics is about advice, not enforcement. Only when officials fail to fulfill their obligation to seek advice regarding particular relationships and gifts would they be in violation of an ethics code. What clearer line could an official ask for?
Requiring officials to seek advice both clarifies ethics code language to the individual and to other officials, and clarifies an official's obligation to the public. It replaces a number of rules, which can be either vague or, in an attempt not to be vague, extensive and complex, with one clear rule: if the law isn't absolutely clear, ask. Since that is already the first rule of government ethics, this requirement is a perfect solution!
Unjustified Accusations
And raising advice above enforcement means that unjustified accusations can easily be seen for what they are: unjustified political attacks. Why? Because if they were justified, the critics would seek advice or demand that the official seek advice. When the ethics officer or commission said that the conduct is either acceptable or outside the commission's jurisdiction, this would put to rest the accusations, at least as ethics accusations. They could then be treated as what they are: either unjustified or political rather than ethical.
Doing this could also open up the usually confidential dismissal of complaints, whereby inappropriate and unjustified ethics complaints are dismissed, often without any explanation or knowledge, while the accusations continue in the media and on blogs, undermining the public trust without the ethics commission fulfilling its role as the responsible party in the discussion. Removing the line between advice and enforcement, such complaints could be treated just like a request for ethics advice, that is, the ethics commission's decision could be shared with other officials and the public for educational purposes and to further the creation of a common law of ethics in the jurisdiction. The result would likely be the increasing depoliticization of government ethics. This would make the ethics process far more respected and effective.
Another Problem with Ballot-Box Ethics Enforcement
Finally, I want to note one valuable observation in the brief that is unrelated to the above. Carrigan argued that disclosure of a conflict should be sufficient. This is an argument many officials raise when they want to undermine an ethics program. They always argue that enforcement should be done at the ballot box.
The EC notes that "the State’s interest in the integrity of the office does not belong just to a representative’s own constituents, but to all the people of the State. Cf. NEV. CONST. art. 15, § 2." (the oath of office provision).
This is something that is usually ignored when disclosure-only approaches are discussed. The ballot box is not only an ineffective way of enforcing an ethics code, but it ignores the fact that government integrity and the public trust are not the responsibility of voters, nor can voters be expected to provide protection for the rest of the public. When officials act unethically, it reflects on the entire government and on government in general, undermining the public trust beyond the official's specific area.
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959
The principal issue discussed in this brief is vagueness, which has stood in the background behind First Amendment issues of free speech and free association. The free speech arguments were put to rest by the U.S. Supreme Court, and the free association arguments were found not to have been originally raised, so they were dismissed.
In a blog post on the oral arguments before the U.S. Supreme Court, I discussed some of the issues raised in this brief, because they were discussed by the justices, even though their decision itself said nothing about vagueness, because the Nevada courts had not reached this issue. Now it will be discussed, and its discussion raises far more interesting and important issues than how the First Amendment applies to government ethics.
First, let me repeat the nutshell version of the Carrigan case. Carrigan is a member of the Sparks City, NV council. His close friend, campaign manager for three campaigns, and principal vendor of the campaigns became a consultant to a developer with a matter before the council. Carrigan asked the city attorney if he could participate in the matter, and the city attorney gave him the green light (as city attorneys so often do). Carrigan participated, someone filed an ethics complaint, and the state ethics commission, which has jurisdiction over local officials, found that Carrigan had violated a "catch-all" conflict provision in the state ethics code (Nevada Revised Statutes §281A.420.8(a)), which defines "commitment in a private capacity to the interests of others" (an unusual term) to include family and business relationships, as well as "any other commitment or relationship that is substantially similar to a commitment or relationship described in subparagraphs (1) to (4), inclusive, of this paragraph."
Vagueness
Most basic conflict provisions are vague, in the sense that it is not clear from the language of the code exactly which conduct with respect to which people is prohibited. No definition of "interest" or "benefit" can be completely clear. And many codes use the language of the "reasonable person" or "impaired judgment" or "influence." All of these terms are necessarily vague.
With vague terms such as these, how can a local government official get due process? If there was nothing but the language of ethics provisions and enforcement, it could well be argued that ethics provisions could not be enforced outside of a limited number of black-and-white situations.
An Obligation to Seek Advice
But there is something other than language and enforcement. There is advice. And there are advisory opinions that let officials know about past advice. As Justice Kagan said in the oral argument in Carrigan, "There was an advisory process that was set up by the Nevada commission here. ... Mr. Carrigan chose not to use it. But he could have gone to the commission, said: What do you think about this relationship? Does it fit or does it not fit?"
The EC brief cites U.S. Supreme Court decisions that have "held the availability of such mechanisms to be critically important to vagueness analysis. E.g., Letter Carriers, 413 U.S. at 580 ('It is [ ] important . . . that the Commission has established a procedure by which an employee in doubt about the validity of a proposed course of conduct may seek and obtain advice from the Commission and thereby remove any doubt there may be as to the meaning of the law'); Broadrick v. Oklahoma, 413 U.S. 601, 608 & n.7 (1973) (State Personnel Board can 'rule in advance on the permissibility of particular conduct')."
This view implies an obligation to seek advice, which in a well-designed ethics program may even be made express. By "well-designed" I mean that at least informal advice is available immediately or within a few days, and that everyone who is under the jurisdiction of an ethics commission has the right to obtain such advice.
Some ethics codes limit advice to officials and employees, but cover or affect others, such as candidates, contractors, and those who give gifts or seek permits or grants. This is wrong. Advice should be open to anyone under an ethics commission's jurisdiction, and even to those directly affected by ethics provisions, even if they may not be directly penalized (e.g., a contractor whose contract is subject to avoidance). It's useful to have everyone who deals with government get involved in an ethics program through its most important program, ethics advice. It's also useful to allow citizens and, especially, citizen groups to ask for advice in order to better ensure that ethics codes are followed. Even if officials and employees have an obligation to ask for advice, it is important that citizens be able to seek advice for those who manage their community when those officials fail to ask themselves.
The Importance of a Monopoly on Ethics Advice
Carrigan did something worse than fail to seek advice from the state ethics commission: he sought advice from the city attorney. By doing this, he made it seem as if he were being responsible. But he was not. And the city attorney should have told him this. And the city attorney should have explained to Carrigan that if he advised Carrigan that he could participate in the matter, it would be seen as forum shopping, that is, going to the person he believed would allow him to do what he wanted.
Ethics advice cannot be something you can seek from whomever you want. An ethics commission must have a monopoly on ethics advice in order to ensure consistency (equal protection) and in order to create a public body of advice on which other officials can rely. In the oral argument, Justices Kagan and Breyer noted that the recusal rules for judges were worked out over the years case by case, in a common law approach. When government attorneys, and others, give ethics advice confidentially, without any accountability or transparency, and with an interest more in their "client" than in maintaining the public trust, this seriously undermines this case-by-case approach, affecting not only advice but also, as is seen here, enforcement.
It is worth noting that Carrigan argued that the vagueness of an ethics provision led to its arbitrary enforcement by the ethics commission even though he had sought the advice of an individual who was not even part of the ethics program and could not be held to any consistent application of ethics laws since his advice was confidential. And how could an ethics program be expected to enforce laws against officials in a non-arbitrary manner when those officials can ask anyone for advice and thus, in effect arbitrarily, prevent the ethics commission's enforcement of the law?
The Line Between Advice and Enforcement
Requiring officials and employees to seek ethics advice would do more than deal with the issue of vagueness. It would remove the line between advice and enforcement that causes the many gray areas of government ethics to exist in a sort of limbo outside of the ethics process, where confusion and accusations undermine the public trust. By this I mean that the media, blogs, and complainants are constantly accusing officials of unethical conduct that either falls in a gray area or outside of government ethics altogether.
It might seem unfair to penalize an official for not withdrawing from a matter where the law did not clearly apply to the situation, but it is not unfair to advise an official to withdraw from participation in a matter where there is an appearance of impropriety, but the law does not clearly prohibit participation. If an official is required to seek advice regarding gray area matters, then an ethics officer or commission can create an increasingly clear interpretation of the law that will bring advice and enforcement together and eventually make enforcement all but unnecessary.
Requiring officials to seek advice would make it clear, in a way nothing else could, that government ethics is nothing like criminal enforcement, in fact, that government ethics is about advice, not enforcement. Only when officials fail to fulfill their obligation to seek advice regarding particular relationships and gifts would they be in violation of an ethics code. What clearer line could an official ask for?
Requiring officials to seek advice both clarifies ethics code language to the individual and to other officials, and clarifies an official's obligation to the public. It replaces a number of rules, which can be either vague or, in an attempt not to be vague, extensive and complex, with one clear rule: if the law isn't absolutely clear, ask. Since that is already the first rule of government ethics, this requirement is a perfect solution!
Unjustified Accusations
And raising advice above enforcement means that unjustified accusations can easily be seen for what they are: unjustified political attacks. Why? Because if they were justified, the critics would seek advice or demand that the official seek advice. When the ethics officer or commission said that the conduct is either acceptable or outside the commission's jurisdiction, this would put to rest the accusations, at least as ethics accusations. They could then be treated as what they are: either unjustified or political rather than ethical.
Doing this could also open up the usually confidential dismissal of complaints, whereby inappropriate and unjustified ethics complaints are dismissed, often without any explanation or knowledge, while the accusations continue in the media and on blogs, undermining the public trust without the ethics commission fulfilling its role as the responsible party in the discussion. Removing the line between advice and enforcement, such complaints could be treated just like a request for ethics advice, that is, the ethics commission's decision could be shared with other officials and the public for educational purposes and to further the creation of a common law of ethics in the jurisdiction. The result would likely be the increasing depoliticization of government ethics. This would make the ethics process far more respected and effective.
Another Problem with Ballot-Box Ethics Enforcement
Finally, I want to note one valuable observation in the brief that is unrelated to the above. Carrigan argued that disclosure of a conflict should be sufficient. This is an argument many officials raise when they want to undermine an ethics program. They always argue that enforcement should be done at the ballot box.
The EC notes that "the State’s interest in the integrity of the office does not belong just to a representative’s own constituents, but to all the people of the State. Cf. NEV. CONST. art. 15, § 2." (the oath of office provision).
This is something that is usually ignored when disclosure-only approaches are discussed. The ballot box is not only an ineffective way of enforcing an ethics code, but it ignores the fact that government integrity and the public trust are not the responsibility of voters, nor can voters be expected to provide protection for the rest of the public. When officials act unethically, it reflects on the entire government and on government in general, undermining the public trust beyond the official's specific area.
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959
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