Carrigan Decision: Seeking Ethics Advice Is Due Process

The long-running Carrigan case (Carrigan I, that is) may have finally come to an end. And it's a very good end. After the U.S. Supreme Court threw out Carrigan's absurd argument that a council member has a First Amendment free speech right to vote on legislative matters where he is conflicted, the Nevada Supreme Court concluded that, if a council member chooses not to seek ethics advice and votes on a matter involving someone with whom he has a special relationship, he cannot say that the conflict provision was unconstitutionally vague with respect to due process.

Here's the story in a nutshell. Carrigan, a Sparks, NV council member, voted on a matter involving his close friend and campaign manager in 2006, the first court decision in the case was reached in 2010, the U.S. Supreme Court decision came in June 2011, and on the day before this Thanksgiving, the Nevada Supreme Court determined, in a 5-2 decision (with the two dissenting only with respect to the penalty), that Carrigan should have abstained from voting, and that the state provision he was found by the state ethics commission to have violated is constitutional (to see the entire backstory, from my blog posts, click here).

The Nevada Supreme Court originally determined that the council member's vote was protected free speech and, therefore, he was not required to have abstained. The U.S. Supreme Court, almost unanimously (there were two concurring opinions), disagreed. It said that a council member's vote is not protected free speech, but rather that "a legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it."

Two of Carrigan's arguments still remained for determination by the Nevada Supreme Court:  (1) whether the conflict provision Carrigan was found to have violated is unconstitutionally vague with respect to Fifth and Fourteenth Amendment due process, and (2) whether Carrigan's First Amendment freedom of association was limited by a determination of violation based on Carrigan's relationship with his former campaign manager. The latter argument was quickly dismissed by the Nevada Supreme Court, and will not be dealt with here.

The Nevada Conflict Provision
I have felt all along that the only real issue in Carrigan I was the vagueness of the Nevada conflict provision. I felt that some of the language in the conflict provision was overly vague, but that the dissenting Nevada Supreme Court justice, who wrote the majority opinion this week, made a good argument that the provision was not unconstitutionally vague. I feel even better about the new majority opinion, but with an important caveat that goes to a fundamental problem of local government ethics programs in the U.S.

The Nevada conflict provision's language is unusual. Nevada Revised Statutes §281A.420.8(a) defines a term I've never seen used anywhere else, "a 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." This last language is a catchall, which requires that the ethics commission determine which relationships are "substantially similar."

The preceding language is, "a public officer shall not vote upon. . . a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by ..." Thus, withdrawal from participation is limited to voting (not a best practice), and there are two additional elements that I feel have no place in a conflict provision, except possibly to explain why conflicts are problematic:  "independence of judgment" and "reasonable person." But neither of these elements was contested in this case.

Different Views of Vagueness
The State Ethics Commission: In this case, the state ethics commission determined that "commitment in a private capacity to the interests of others" includes "close relationships which rise to such a level of commitment to another person's interest that the independence of judgment of a reasonable person in the public officer's position would be affected." The ethics commission further said that "[a] reasonable person in Councilman Carrigan's position would not be able to remain objective on matters brought before the Council by his close personal friend, confidant and campaign manager, who was instrumental in getting Councilman Carrigan elected three times."

The U.S. Supreme Court: In the U.S. Supreme Court oral argument, Justice Scalia said that vagueness is typical of conflict provisions. He said, "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?"

He also talked about the non-discriminatory and self-regulatory nature of the conflict provision: "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 legislators, and other officials, operate, but local governments are creatures of the state, so this is considered acceptable in our governmental system.

The Nevada Supreme Court:  The Nevada Supreme Court takes a different approach. It says that the catchall "does not sweep in entirely new types of relationships. Rather, it closes potential loopholes in the Ethics Law by giving the Commission the flexibility to address relationships that technically fall outside the four categories enumerated in paragraphs 8(a)-(d) yet implicate the same concerns and are substantially similar to them, such as a relationship with a domestic partner or fiancée."

The court also calls terms in the conflict provision, including "reasonable" and "substantially similar," "objective." Therefore, it says, they "do not require the kind of 'untethered subjective judgments'—such as whether a defendant's conduct was 'annoying' or 'indecent'—that the Supreme Court has invalidated as unconstitutionally vague."

I don't agree that these terms are objective, at least in the sense that they provide sufficient guidance to allow an official to make a decision on his own. They do, however, provide sufficient guidance for an ethics officer or commission to interpret the provision and define the terms through a series of advisory opinions.

The court finds in the legislative history that when a state senator asked governor's counsel how campaign managers fit into the statute, he was given the answer, that if "the same person ran your campaign time, after time, after time, and you had a substantial and continuing relationship, yes, you probably ought to disclose and abstain in cases involving that particular person." This applies directly to Carrigan.

And the Nevada Supreme Court quotes the U.S. Supreme Court in its Carrigan opinion, "The Nevada Supreme Court and Carrigan have not cited a single decision invalidating a generally applicable conflict-of-interest rule—and such rules have been commonplace for over 200 years." In other words, even though there is vague language in nearly every ethics code, no court has invalidated this language as vague with respect to Fifth and Fourteenth Amendment due process.

The Nevada Supreme Court concludes, "We are disinclined to invalidate a civil statute addressing conflicts of interest by public officials on the grounds that, in some cases, it poses problems of application that require case-by-case elaboration, in common law fashion."

The Nevada Dissent:  The dissent in this case takes yet another approach to the concept of vagueness. It argues that a law is impermissibly vague "if it 'fails to provide a person of ordinary intelligence fair notice of what is prohibited.'" State v. Castaneda, 126 Nev. ____, ____, 243 P. 3d 550, 553 (2010). The two dissenting justices add, "While acknowledging that the U.S. Supreme Court has suggested that an advisory opinion option diminishes vagueness concerns, here, the majority treats it as though it disposes of them entirely."

However, this approach is applied solely to the penalty portion of the enforcement proceeding (the censuring of Carrigan by the ethics commission), not to the finding of an ethics violation.

Drafting a Conflict Provision:  Consider the vagueness issue in terms of drafting a conflict provision. The Nevada Supreme Court says, quoting another decision, "Vagueness challenges are normally evaluated in light of the particular facts of the case, not in general." Thus, when one is drafting a conflict provision, court decisions on vagueness provide little guidance. One would have to consider a wide range of scenarios in order to ensure that conflict provision language is adequately clear. Therefore, the best solution would be a catchall and a clear requirement that officials who have a special relationship with someone involved in a matter either withdraw or seek ethics advice.

The Due Process of Seeking Ethics Advice
For the purpose of enforcement, I have argued that the "substantially similar" catchall part of the provision is not fair, because it is impossible for an official to predict which of his relationships are "substantially similar." But for the purpose of advice with respect to future conduct, I don't see a fairness issue. In this case, the two come together due to the court's position that seeking ethics advice is the process due to officials.

The Nevada Supreme Court spoke to two important aspects of ethics advice. First, it recognized that Carrigan could have sought ethics advice from the ethics commission and chose not to. Quoting Bauer v. Shepard, 620 F.3d 704, 716 (7th Cir. 2010), the court says, "When a statute is accompanied by an administrative system that can flesh out details, the due process clause permits those details to be left to that system." In other words, seeking ethics advice is the process that is due to an official faced with a conflict situation. This is an extremely important message for all government ethics programs to get across to those under their jurisdiction.

Also important is the court's recognition that Carrigan's seeking of advice from the Sparks city attorney was insufficient. When one raises a violation of due process, one must have followed the process that the law provides, which is seeking advice from the ethics commission, not from the city attorney, one's private attorney, or anyone else. This too needs to be communicated clearly by government ethics programs.

Together, these two aspects of the court's decision effectively create a requirement to seek ethics advice and an EC's monopoly on ethics advice. If one does not seek ethics advice and does not abstain from voting when one has a special relationship with someone involved in a matter, one has no defense against an allegation of having wrongfully voted. Essentially, the standard for providing advice, which is broader than the standard for enforcing against ethics violations, can be applied in an enforcement proceeding because the respondent did not seek advice.

This is so important that I will repeat this again in other language. I have argued that ethics advice should go beyond the law and consider such things as the appearance of impropriety. For example, it is impossible for a conflict provision to provide a clear definition of "close friend" or "lover," and yet voting on a contract that would go to a close friend or lover would create a serious appearance of impropriety. Therefore, an official faced with a conflict situation involving a close friend should be told by an ethics officer that, although a close friend is not in the law's list of relationships that require withdrawal, she should withdraw from this matter involving her close friend. However, if she does not seek advice and participates in the matter, an allegation that she violated the conflict provision should be dismissed, because she did not have a relationship that appeared in the conflict provision. The standards are different.

The Nevada conflict provision includes in its list of relationships just the sort of catchall that an ethics officer should consider in providing ethics advice even if there is no catchall provision. The catchall provision extends the advice standard into enforcement. Although this seems unfair to me at first blush, it is fair if it is made clear to all officials that they must either withdraw or seek ethics advice whenever they have a special relationship with someone involved in a matter, whether or not the relationship is listed in the conflict provision. If this requirement to seek advice is made clear and the advice is available on a timely basis, then the vagueness does not lead to unfairness or a lack of due process.

The Availability of Ethics Advice
The second part of this "if" is a big problem. The fact is that timely, independent ethics advice is available in very few local jurisdictions in the U.S. Even in Nevada, the state ethics commission has up to 45 days to provide advice. In the Carrigan case, this was sufficient. But in most cases, it is not. It is especially insufficient when an ethics code goes beyond Nevada's inadequate abstention requirement, to require total withdrawal from participation in a matter.

To make the Carrigan decision work, ethics programs need to provide timely, independent ethics advice through a part-time or full-time ethics officer. An ethics program cannot depend on the advice of a city or county attorney, nor can it expect officials to wait until the ethics commission next meets. Officials need and deserve timely advice. This is the ultimate lesson to be learned from the Carrigan decision.

Robert Wechsler
Director of Research-Retired, City Ethics

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