The Willful Standard in Nevada's Ethics Enforcement

Standard of proof is a big issue in ethics enforcement, as it is in any enforcement. A year and a half ago, I wrote a blog post on the mishmash of standards of proof in local ethics codes and in the codes of states that have jurisdiction over local government ethics. In many codes there is no stated standard or a worthlessly ambiguous standard. In others, the standard is clear, but a serious obstacle to enforcement.

In Nevada, where the state ethics commission has jurisdiction over local government ethics, the commission has to show that officials' acts are "willful" in order to penalize them. This burden has actually become a political issue. The principal reason is that the state legislature redefined willfulness in May, clearly part of its attempt to emasculate ethics enforcement after its legislative immunity victory.

Nevada Revised Statutes Sect. 281A.170 defined "willful violation" as where "the public officer or employee knew or reasonably should have known that his conduct violated this chapter." According to an article in Sunday's Las Vegas Sun, the legislature struck the language about "reasonably should have known" and replaced it with acting “intentionally and knowingly.”

This is hard to prove. It essentially means that a local or state official can say he or she didn't know about the rule or the possible conflict, or just acted negligently, and not be penalized for violating the state's ethics code. As the Sun said, "Ignorance of the law is no excuse for breaking it, the old legal saw goes. But that is not the case when it comes to Nevada’s ethics laws."

According to the Sun article, a city council member who is also president of a labor union (see an earlier blog post on this case) got away with ignoring the state ethics commission's advice when the commission found that his actions were not "willful."

According to a Sun article last week, a gubernatorial candidate, Rory Reid, has made four ethics pledges, including:

Increase funding for the Nevada Ethics Commission, and eliminate rules that allow public officials who violate ethics laws to get off without a penalty if the commission finds that the violations are "non-willful."

Truly a sight for sore eyes. But Rory Reid, U.S. Senator Harry Reid's son, is behind in the polls.

Robert Wechsler
Director of Research-Retired, City Ethics

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