making local government more ethical

The Public's Right to a Public-Interested Representative

Update: January 11, 2011 (see below)

According to a July 2 unpublished opinion by Judge Flanagan of the Washoe County (NV) district court, Carrigan v. Commission on Ethics of the State of Nevada (attached; see below), a city council member has a first amendment free speech right to vote where there is not "an actual, existing conflict of interest." (p. 13)

Due process also comes into play in the opinion:  "In the absence of an actual, existing conflict of interest, this Court finds it at odds with the aims of due process to deprive the citizens of the Fourth Ward of their representative voice on issues pertaining to the Project, effectively silencing their vote at the ballot box..." (p. 13)

The opinion's conclusion only mentions the first amendment, not due process, but the court does call the state ethics commission's unanimous opinion "based on an improper purpose" and "arbitrary and capricious" due to its violation of the council member's first amendment rights.

I think it is important to consider the court's arguments in this case, particularly the extent to which conflict of interest laws deprive constituents of their voices. It's also important to understand the limits of the opinion, both in terms of the odd Nevada conflict language and the facts of the case.

A Peculiar Situation That Has Little Applicability to Other Situations
Fortunately, the specific situation, both the facts and the law, are peculiar enough that this opinion should be interpreted very narrowly and the facts should be easily distinguished. The facts, discussed at the end of this blog post, are in a light gray area in terms of conflicts of interest. I can't imagine any EC finding a violation based on these facts. But this case does not involve the finding of a violation. It involves an advisory opinion.

In terms of law, a court would have to agree with the Washoe County court that it has the right to question an EC's advice when a conflict is in a gray area. And then, if it did find that there was no such conflict, a court would have to decide whether an official's right to vote, which is actually the public's right to be represented, takes precedence over what the Washoe County court correctly recognizes as the EC's "interest in ensuring that the Petitioner faithfully discharges his obligations to his constituents."

Complementary Values
In its balancing process, the court makes a noble attempt to present the values involved in an official's right to vote and in a recusal provision as complementary rather than conflicting. If the many courts who have recently treated legislative immunity as an absolute value, in conflict with government ethics, had made this attempt, their cases might have been decided differently. Here's what the court wrote (pp. 12 and 13):
    A case like this is very difficult because the interests of the parties are complimentary [sic] to each other. There is no doubt that the Petitioner has a protectable First Amendment interest in voting on matters that come before the Sparks City Council; faithfully discharging his obligation to represent the will of his constituency. The State, by and through the Commission, also has an interest in ensuring that the Petitioner faithfully discharges his obligations to his constituents. [and]

    Nevada has elected to use a representative form of government "to aid in the conduct of the people's business." ... Complimentary [sic] to that goal, the purpose of the Nevada Ethics in Government Law is ensuring that the voice of the people is not drowned out by a self-interested elected representative.
The reason I say that this is a noble attempt rather than a success is that I don't think the council member's interest is a first amendment interest. The court was closer when it spoke of a council member's obligation to represent the will of his constituency, but even that is only partially true. Representatives often vote against the will of the majority. What they are not supposed to do is vote, or appear to vote, to further their personal interests or the personal interests of their family and business associates. This is why government ethics and legislative immunity have complementary values:  they both seek to protect the public's right to have a representative acting in the public interest. The second paragraph, that is, the second statement of the complementary nature of these values, is much more accurate, but unfortunately the court based its argument and conclusions on the first statement.

The EC Advisory Opinion
The reason that the court found that there was not "an actual, existing conflict of interest" was that the EC's advisory opinion was based on the council member's "inability to deny that a conflict will arise in the future" (pp. 13-14). But that is not actually the basis of what is admittedly a questionable EC opinion. Here is the essential language of the EC opinion:
    The abstention requirement does not look at a momentary relationship but rather at a relationship that exists over a period of time. It looks back in time, as well as forward. Abstention is about the public officer's independence of judgment at the time he is called upon to exercise it.
Recall that the EC's statement was made not in enforcement of the state conflict law with respect to past votes, but rather as advice to a council member who had sought the EC's advice with respect to future votes. In its finding, the court does not acknowledge the future-oriented context of the advice. This, I think, was wrong, and undermines the opinion's conclusion.

Due Process
The opinion's case for due process is also problematic. It takes two forms. The first form involves the ethics law's protection of the due process rights of citizens to, it appears, have their representative represent them (p. 13). I don't believe this is a due process right at all, any more than it is a first amendment right. It is a right central to the democratic process and the state constitution, without any need, I believe, for any rights stated in the bill of rights to be applied. In fact, the court's argument here is effectively a legislative immunity argument based not, as is common, on separation of powers, but rather on the first amendment. This is one reason why I have looked at it so carefully.

The second form of due process in the opinion involves the vagueness of the statutory language (p. 7), which seems appropriate. The statutory language is admittedly odd. Nevada Revised Statutes §281A.420.8(a) defines an unusual term, "commitment in a private capacity to the interests of others," 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."

For the purpose of enforcement, I would argue that this part of the definition would not be considered fair, because it is impossible to predict what relationships would be considered "substantially similar." But for the purpose of advice with respect to future conduct, especially where the same advice had been given before in slightly different circumstances, I don't see a fairness issue. (By the way, an appeal of the first advice is currently before the state supreme court, so there might soon be another Nevada opinion on the same topic, although with slightly different facts.) But the court did not distinguish between advice and enforcement.

In my blog, I have emphasized the importance of local government officials dealing responsibly with their possible conflicts of interest. There is no doubt that the council member had a possible conflict of interest, and by seeking an advisory opinion from the EC he acted responsibly. And then he appealed the advice because he didn't like it, after appealing similar advice before.

An Attempt to Cure the Conflict
And that is not all he did, or at least all that happened to change the circumstances of his conflict. His campaign manager for his prior three election cycles (and possibly the next one), as well as his close friend and confidant, was involved in a development project that had to be approved by the council on multiple occasions. Between the two instances of EC advice, the developer took the campaign manager off the project, but continued to employ his services on other projects.

Assuming that the council member was involved with having his friend taken off the project, this was a responsible step in dealing with his conflict. And his friend certainly made a serious sacrifice. It is understandable that the council member would feel that this change would make a difference to his ability to vote on the project.

But since the campaign manager is still in the developer's employ, there is still a strong possibility that approval of the project would help the campaign manager. Therefore, the attempt to cure the problem was only partially successful.

What Deprives Constituents of Their Voice?
It's interesting to see how the council member dealt with a conflict issue back in 2007, when a completely different project involving the campaign manager came before the council. Here's an excerpt from the minutes of the September 10 council meeting:
    Council Member Carrigan disclosed that he had asked for an advisory legal opinion because a friend of his, Carlos Vasquez, is a paid consultant with Tanamera, the applicant for this agenda item. Mr. Carrigan said he was disclosing his friendship with Mr. Vasquez under NRS 281A.501.4 and that he would not be abstaining on the vote for this item, stating that a public official is dissuaded from abstaining for four reasons:
    1. Abstention deprives the public, and specifically an elected official’s constituents, of a voice in matters which come before public officers and employees.
    2. Public officers and employees should have an opportunity to perform the duties for which they were elected or appointed, except where objective evidence exists that private commitments would materially affect one’s independent judg[ment].
    3. There are no private commitments, materially or otherwise.
    4. And our City Attorney, who has been giving him outstanding advice, contrary to what was said earlier, told him that when looking at abstaining, go to the Commission on Ethics' Woodbury opinion [which says that, for an official to abstain, his commitments must have a material effect on the independence of his judgment]. The burden is on him as a public official, and he will be voting on and discussing this issue.
The council member's reasoning behind his decision to vote despite an apparent conflict is interesting. He first raises the issue of his constituents' voice, but he does not accurately say what would deprive his constituents of their voice. It is not abstention that is at fault, but rather the cause of the abstention. And the cause of the abstention is the conflict of interest.

Being deprived of one vote is pretty minor, hardly a loss of voice. An officials' constituents significantly lose their voice only when the person they elect has multiple conflicts of interest, or one conflict that keeps reappearing. For example, the applications of the campaign manager's employers.

The campaign manager and close friend is involved in numerous projects and with companies that are involved in even more projects. When an official runs for office knowing that he has frequent conflicts due to close relationships with an employee or multiple local developers or contractors, he must expect to have to recuse himself often and, to be fair to his constituents, he should let them know this before they elect them.

The court considered it important that this council member, when he ran, said he was in favor of the particular development in question, but conflicts exist separately from an official's stated position on an issue. Just because an official's ideology coincides with the personal interest of his campaign manager does not mean that he doesn't have to responsibly handle the conflict of interest.

This council member did not give his constituents the opportunity to reject him due to his frequent conflicts. That, not the ethics law, is the cause for his having to deprive his constituents of their voice on the council. In addition, he could have chosen a different campaign manager, or he could have chosen a city position that would not involve voting for or against developments. Either choice would have given his constituents a full voice. His many choices are more the problem here than the ethics commission's advice.

Thus, not only must an elected official deal responsibly with his conflicts when they arise, he has an obligation not to put his constituents in the situation of losing their voice via multiple abstentions, and he also has an obligation not to blame the EC for a situation he himself created.

Advice vs. Enforcement
Outside of the theories of democracy and government ethics, the fact is that most people believe that officials are swayed by their relationships, certainly those with their family members and business associates. They feel the same way about an official's close friends, but this is very difficult to define, which is why friends and lovers are usually left out of ethics codes. But they should not be left out of ethics advice. No one could possibly believe that an official's judgment is not affected by, for example, a lover working for a city contractor. Whatever the law says, everyone knows it's wrong to vote on a contract that involves a close friend or lover.

And this is why a responsible ethics adviser would say not to vote on the contract. But the same individual or body would not find a violation if the vote were made, because it can only enforce the language of the law. This is an important peculiarity of government ethics, and the opinion in this matter is weaker for having failed to acknowledge it.

Update: January 11, 2011
This case was dismissed on appeal by the Nevada Supreme Court on grounds of mootness.

Robert Wechsler
Director of Research, City Ethics