making local government more ethical

The Carrigan Oral Argument: How to Deal with Vagueness

Needless to say, last week's oral argument before the U.S. Supreme Court in the Carrigan v. Nevada Commission on Ethics case, which I have been following over the past year, was the last oral argument of the term. Was this putting local government ethics in the caboose or saving the best for last?

In the oral argument, there is a great deal of interest for those interested in local government ethics.  Topics include the application of First Amendment free speech and association protections to conflict and withdrawal provisions, whether legislators may apply vague standards to themselves and their local government colleagues and, most important, the use of advisory opinions and EC decisions to interpret otherwise vague provisions and thereby make them enforceable.

Here's the story in a nutshell. 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."

Council Member Advocacy Outside of Council
One piece of good news is that most of the justices who spoke did not seem to feel that a legislative vote is protected by the First Amendment. Counsel for the Nevada EC put it well:
    Neutral laws requiring official recusal for conflict of interest do not abridge free speech because a legislator's vote, however expressive, is not protected speech. It is, rather, a legally binding exercise of State power that he wields as an incident of public office.
The EC's counsel also made another interesting point on this topic:  "since the earliest days of the Republic recusal rules have been understood to serve important interests unrelated to any views a legislator may want to express... ."

However, withdrawal from participation also includes advocating for or against a matter, which is more clearly speech than a vote is. But it is not the speech of an ordinary individual that must be protected from government interference, but rather the speech of an extraordinary individual representing ordinary individuals and required to represent their interests, not the representative's personal interests.

What was disconcerting in this part of the argument was the EC's attorney's response to Justice Kennedy's question, "[Recusal] doesn't apply to outside advocacy?" The attorney answered, "Absolutely. It does not apply to advocacy as a citizen outside the legislature."

This is not usually the case. Withdrawal from participation does include all communications concerning a matter, both in the legislature and outside of it. The appearance of impropriety would not be any different if a council member went around the community giving speeches and bargaining with his fellow council members to help his business associate get a contract than if he gave the same speech and made the same arguments during the council session on the matter.

In any event, can a council member ever advocate as a citizen relating to matters before his council? Is there a button she can push to go from representative mode to cititzen mode, and back again?

This sort of problem often arises when ethics matters are brought before a court. Often, it appears that neither counsel nor judge truly understands government ethics, so they are willing to concede issues that most government ethics professionals would not think of conceding.

If the court's decision makes a distinction between advocacy inside and outside of council proceedings, this could have a serious long-term effect on the definition of withdrawal. It would be a crime, since the matter was not well argued and its effects would most likely not be taken into account. It would also open a hole in the issue of whether government officials have obligations that lessen their First Amendment rights, which could lead to their being granted further rights because, in the midst of First Amendment arguments, their obligations are too often ignored by the courts.

Once you get past the First Amendment issues (see below for a section of freedom of association), which are, I believe, irrelevant, the most important issue is the vagueness of the "catch-all" provision. I argued earlier that it is too vague for enforcement, but a good, although poorly worded, aspirational provision. The oral argument to some extent changed my mind.

Counsel for the EC defended the Nevada provision by pointing out that there are other broad, vague conflict provisions. He mentioned two sorts of provision. New Jersey's conflict provision requires only "a direct or indirect financial or personal involvement."

Seattle's conflict provision applies "whenever it could appear to a reasonable person having knowledge of the relevant circumstances that the covered individual's judgment is impaired because of either a personal or business relationship not covered under subsection A or B above," which lists the covered relationships, "or a transaction or activity engaged in by the covered individual." I oppose both "reasonable person" standards and "impairment of judgment" language in enforceable ethics provisions.

These examples seem to have had an effect on the justices. The odd Nevada provision is at least not alone in being vague. The justices ran with this idea, looking at both congressional and judicial ethics provisions that are vague, and considering the way that they are handled and why it is acceptable.

Justice Scalia led the way: "The first Congress adopted a rule that, quote, 'No member shall vote on any question in the event of which he is immediately and particularly interested.' I don't consider that very precise. And the rules adopted by Thomas Jefferson for the Senate, 'Where the private interests of a member are concerned in a bill or question, he is to withdraw. 'The private interests,' what does that mean? 'And where such an interest has appeared, his voice is disallowed, even after a division.'"

Justice Scalia took this a step further a bit later in the oral argument: "if it's vague for Mr. Carrigan in this case, it's vague for everybody else as well. ... And so it's sort of a self-regulating mechanism." In other words, it's up to the legislature to determine how it operates, as long as its rules are not discriminatory. Of course, here the state legislature regulated how local legislatures, and other officials, operate, but local governments are creatures of the state, so this is acceptable in our governmental system.

During the argument of Carrigan's counsel, Justice Scalia raised the fact that "judges are subject to ethical rules which prohibit their participating if there would be, quote, 'an appearance of impropriety.' If there's anything vaguer than that I can't imagine what it might be. Can I get out of all that stuff?" The latter comment is a reference to calls for Justice Scalia to recuse himself with respect to Vice President Dick Cheney, and another situation, I believe.

Carrigan's counsel tried to distinguish the situations by arguing that judges are not supposed to have political loyalties, whereas legislators are. But Carrigan's relationship was not a purely political relationship, so the argument did not go over well.

Late in the oral argument, Carrigan's counsel had an exchange with Chief Justice Roberts, in which counsel agreed that vagueness, presumably pursuant to a due process argument, can be separated from the First Amendment issues. I agree that this should be decided solely as a due process issue.

Creating a Common Law Relating to Conflicts
Justices Breyer and Kagan ran with Justice Scalia's idea about vague conflict rules, recognizing that the recusal rules for judges have been worked out over the years case by case. Justice Breyer asked, "Why is it impermissible for the Executive Branch or the Legislative Branch also to use a common law, case-by-case method of elucidating through example what a general ... provision means?"

To which Carrigan's counsel responded, "the candidate and the volunteer [meaning the campaign manager/friend/vendor, hardly a "volunteer"] have to know ex ante [that is, before they enter into the relationship] whether to engage in this relationship or not."

Justice Kagan said, "But why do they have to know ex ante? 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?"

In short, the justices recognized that any ethics rules are going to be somewhat vague, and that it is the job of an EC to elucidate their boundaries by means of advisory opinions and decisions on complaints.

This is a mature approach, which recognizes, effectively, how important it is to seek advice and how important advice is in informing others about what is required by ethics provisions.

This approach has made me think differently about a matter I've talked about a good deal: the difference between aspirational and enforceable ethics provisions. I have taken the position that relationships that are difficult to define, such as with "friends," should be in the aspirational section of an ethics code, so they provide guidance in dealing responsibly with appearances of impropriety, if they cannot be enforced. This means that an EC might advise an official to withdraw from a matter due to a relationship even though, were a complaint to be filed alleging an ethics violation for failure to withdraw under the same circumstances, the same EC would not find a violation.

In other words, the irresponsible handling of a conflict situation is not always enforceable.

But Justices Breyer and Kagan effectively took a different position. They seem to feel that such an ethics provision is enforceable, and that, to prevent enforcement, an official should seek advice from the EC, possibly first consulting the EC's advisory opinions and decisions. To the extent that an EC creates a common law of advice and decisions that interpret the provision, even vague language will become clear in terms of what it applies to and what it does not apply to.

If there was a quick and professional advisory system in place, I agree that this would be the best way to deal with government ethics enforcement. I hope that this approach appears in the Supreme Court's opinion.

Freedom of Association
Carrigan's counsel raised a new issue in the case, which was discussed in the oral argument:  that the First Amendment right to freedom of association between candidate and campaign workers was impinged by forcing candidates to decide in advance whether a campaign worker's interests might force the candidate to withdraw from a matter in the future. It would be an interesting issue if campaign workers' interests were actually taken into account by ethics codes and commissions, but they are not, even in the Carrigan case, where he was far more than the campaign worker Carriagan's counsel tried to pass him off as.

Counsel for the EC argued that there would be a negligible effect on association, because it would not happen very often. "In order for the recusal statute to apply, two circumstances have to be simultaneously met. First, there has to be a qualifying relationship which is close and ongoing, and simultaneously ... the third party must have a private, usually pecuniary, interest before that same legislator."

Counsel for Carrigan led off his argument with a statement that applied to association and sounded like something out of a libertarian blog:
    an unelected commission has arrogated to itself essentially the right to invalidate an election result and to do it in a way that treats core political association as corrupting. If the police of political purity are going to tell an elected official that he cannot cast the vote that he ran on and was elected to cast, they have to do it clearly, they have to do it prospectively, and they have to do it for an important reason.
In fact, the election result would not have been invalidated by the council member's withdrawal, nor does the requirement of withdrawal mean that an official's relationship with his campaign manager is corrupting. First of all, the relationship was not merely political, but also a close friendship and a business relationship, since the campaigns' principal vendor was the campaign manager's company. Second, the relationship does not have to be corrupting to mean that it is inappropriate to participate; the relationship only needs to create the appearance of corruption, which undoubtedly exists in this case.

Robert Wechsler
Director of Research, City Ethics

Wayne Barnett (not verified) says:

One thing that I wish had been clarified in the oral argument is that under Seattle's Ethics Code, the "appearance of impropriety" is grounds for disclosure, not recusal. The Nevada law at issue requires recusal. In Seattle, so long as the facts are disclosed there is no violation.

I expect Seattle's approach to be validated, given this exchange between Carrigan's attorney and the Chief Justice at oral argument:

CHIEF JUSTICE ROBERTS: Here we're talking about penalty for participating. What -- what if it's a disclosure rule saying, you know, you can participate, you can vote, you can advocate, you just have to disclose interest of this sort.
CHIEF JUSTICE ROBERTS: Is that problematic under -
MR. ROSENKRANZ: Not at all, Your Honor. That's perfectly appropriate. That is in fact what Mr. Carrigan did right at the outset of -
CHIEF JUSTICE ROBERTS: Right. Well, doesn't that burden his First Amendment rights?
MR. ROSENKRANZ: A lot, yes; but a lot less so. And this Court has -- is very comfortable with disclosure when you're talking about public officials as lighter medicine, less severe medicine than an outright ban or a punishment for that association. That's the way it should work in the political process. Everyone in this election was aware of Vasquez's role. It was front page news when the hearing was going on. And so for a commission -

Robert Wechsler says:

There's no doubt that this decision will not affect disclosure requirements. Carrigan's relationship was front page news, and he had sought advice from the city attorney (although not the ethics commission), so disclosure wasn't an issue here.

Disclosure has not generally (or not yet) been attacked by those seeking to undermine government ethics, especially the campaign finance part. My problem with a disclosure only rule is that it doesn't seem better for the public's trust in government to disclose an official's conflicts or contributions from, say, government contractors when the public knows that those with the conflicts or who receive the contributions will still be free to help themselves, their family, their business associates, and their large contributors by advocating and voting for their contracts, developments, etc.

Disclosure is better than nothing, because transparency allows discussion and because officials take a greater risk when they participate in matters where they have a conflict. But disclosure-only rules place the enforcement power primarily in the hands of voters, who cannot keep track of conflicts and contributions, have limited information or memory when they go to the polls, and do not understand many of the issues involved. And most irresponsible handling of conflicts does not deserve being thrown out of office.

Wayne Barnett (not verified) says:

I don't want to pat ourselves on the back too much, Rob, but Seattle does take a bifurcated approach to conflicts. We're certainly not disclosure only. City officers and employees are required to recuse themselves from participating in matters in which they themselves, an immediate family member, a housemate, a business or non-profit that they serve as anything other than a volunteer, or a business with which they are seeking employment, has a financial interest. In those cases, disclosure won't cut it. But if it is your best friend, a business for which you used to work, etc., then we require disclosure. It's not perfect, but it does provide the public with information while avoiding the problems that the Court identified with requiring public officials to recuse themselves whenever there is an appearance of impropriety.

Robert Wechsler says:

That's not a bad way to do it all. That's a good compromise between enforcing immediate conflicts and having an aspirational provision regarding appearance of impropriety, and enforcing a general provision that, as two of the justices suggested, could be defined by advisory opinions and decisions, and then enforced.

I think it's worth a pat on the back!

Carla (not verified) says:

Brilliant summary, Rob. I am passing it on to our General Counsel's office. You do a great service in summarizing this for the website.

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