According to a July 2 unpublished opinion by Judge Flanagan of the Washoe County (NV) district court, Carrigan v. Commission on Ethics of the State of Nevada (attached; see below), a city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 Poor Approach to Being Ethical
It's great when candidates talk up acting ethically. But it's going too far, and setting a bad precedent, when a candidate takes a lie-detector test in which he says that he never engaged in unethical activities in private- or public-sector work, as reported in the Moultrie (GA) Observer.

On Independence Day weekend, it's worth remembering that independence does not come cheap, and that there are some things that are more important than independence.

One of those things is the public trust. There is a serious cost to our society when government officials place their independence from ethics enforcement above the public trust, that is, when government officials insist on legislative immunity. And there is a cost to officials, too:  their trial not by a neutral body in a formal proceeding that the public can have trust in, but rather by partisan accusations and media coverage based on the manipulation of limited facts and a limited understanding of the issues involved.

According to an article in the Providence Journal, a Rhode Island state senator has been indicted on federal charges that he falsified documents to get mortgages and an auto loan worth more than $1.5 million. This same senator sponsored an unsuccessful resolution to let the legislature regulate its own ethics. The legislature failed to pass a resolution to let the people of Rhode Island decide whether to let the state ethics commission have full jurisdiction over legislators, so effectively they do regulate their own ethics.

After the indictment, Common Cause is calling for the legislature to reconvene and allow a referendum on this issue.

Read the WHOLE story

Update: June 7, 2010 (see below)

There is some very good news out of Rhode Island, even if it is over a month old. The house majority leader, now the speaker of the house, Gordon Fox, has introduced a bill seeking a referendum in November on a constitutional amendment that would return to the state ethics commission its jurisdiction over legislators, which had been taken away by a state supreme court decision last year (see blog post on the decision). The governor has supported the bill, and Senator Lenihan and others have filed the same bill in the senate.

This year, the Rhode Island ethics commission, which has jurisdiction over local governments, has been bouncing around the issue of conflicts of interest relating to local officials' involvement in  negotiations with a union, where they or their spouse is a member of a different local union that shares the same umbrella union and, often, the same negotiators and some of the same funds. The public statements on this issue, from representatives of unions and good government organizations, and the quandaries of EC members make valuable reading.