Ethics or expression

On Aug. 23, 2006, the Sparks City Council rejected the proposed Lazy 8 casino, planned for construction in a north Sparks neighborhood.

From that acorn of a vote, a tree of First Amendment contention has grown. The U.S. Supreme Court this week heard arguments on whether one of the City Council members had a right to vote.

The proposed casino was in the City Council ward of Councilmember Mike Carrigan, and Carrigan voted to approve the project. He had no financial links to the project. But he had a friend and associate, Carlos Vasquez, who was a consultant to the Lazy 8—which was being proposed by a corporation called Red Hawk—and in advance of the vote he asked the city attorney whether he should vote. He, and other council members and the mayor, were told that under Nevada law, “simple personal connections and friendships” are not enough to relieve them of the duty of voting, so long as the conflict was disclosed.

Before casting his vote, Carrigan said, “I have to disclose for the record … that Carlos Vazquez, a consultant for Red Hawk … is a personal friend. He’s also my campaign manager. I’d like to disclose that as a public official, I do not stand to reap either financial or personal gain or loss as a result of any action I take tonight. Therefore, according to [Nevada Revised Statute 281A.420] I believe that this disclosure of information is sufficient and that I will be participating in the discussion and voting on this issue.”

The Council rejection did not kill the Lazy 8, which was being developed by lobbyist Harvey Whittemore. The casino project was opposed by many of the residents of the neighborhood, but the fiercest opposition came from people who lived outside the city in unincorporated Washoe County territory. It was one of those hot issues that quickly becomes overheated, taking on the trappings of a battle between good and evil, with some players questioning the good intentions and motives of their opponents. In this case, the Sparks Nugget was helping to fan the flames from behind the scenes in order to prevent a competitor from taking root.

One of Carrigan’s opponents in the upcoming election, James Valline, had filed a complaint with the Nevada Ethics Commission in an effort to prevent Carrigan’s vote. “I am not doing anything unethical or illegal,” Carrigan told the Sparks Tribune. “Just because this guy is a friend of mine does not recuse me from a vote.”

Valline’s complaint was later joined by others filed by Jeannie Adams, Shirley Bertschinger, Janae Maher, and Mary Odom. In a recent brief in the legal case, the Commission seemed to be put out with Carrigan for seeking advice from the city attorney instead of itself: “He was … aware that he could have obtained an advisory opinion from the Commission on whether abstention was required. Carrigan instead sought the advice of the Sparks city attorney, who told him that his obligations under the law could be discharged by publicly disclosing the relationship before voting on the Lazy 8 matter.” In subsequent months, the Ethics Commission advised Carrigan not to vote on succeeding matters involving the Lazy 8, and he did abstain on later votes.

The voters of the ward itself made themselves heard in an election six weeks after the Lazy 8 vote when feelings and memories were still strong. Lazy 8 was nearly the only issue, making the election virtually a referendum on the project. (Some called it a battle between the Nugget and the Lazy 8.) Residents reelected Carrigan with 63 percent of the vote.

A year later, on Aug. 29, 2007, the Ethics Commission—after a good deal of additional machinations in the Lazy 8 case—rendered a finding “that a preponderance of the evidence shows that Councilman Carrigan should have abstained from the vote on the Lazy 8 matter on August 23rd, 2006.” The ethics commissioners then voted that Carrigan’s action was “not willful.” No penalty was imposed.

It was the gentlest of admonitions—by contrast, Carrigan’s more conflicted colleague Phil Salerno was fined $5,000—but Carrigan did a slow burn for several weeks and then went to court to overturn the finding. In May 2008, District Judge William Maddox ruled against him on grounds that state interest in an ethical government overcame Carrigan’s right to vote. But on July 29, 2010, the Nevada Supreme Court ruled on a 5 to 1 vote in his favor.

That ruling changed the character of the dispute completely from ethics to freedom of expression.

It has long been recognized that the political arena has greater speech protections than, say, commerce. For instance, television stations can demand changes in merchants’ commercials for reasons of taste or misleading claims or whatever. But they are required by law to use candidates’ commercials unchanged.

The Nevada Supreme Court found that in its grant of authority to the Ethics Commission, the Nevada Legislature had been too sweeping and had damaged the ability of elected officers to express their opinions through their official votes.

The Nevada law the legislature enacted says that “a public officer … shall not approve, disapprove, vote, abstain from voting or otherwise act upon a matter” that involves someone who is a member of his household, who employs him or a member of his household, or with whom he has a “substantial and continuing” relationship. But then there is also a fourth group listed. It says the officer should also not vote on a matter involving “any other commitment or relationship that is substantially similar to a commitment or relationship described” by the first three categories.

This highly subjective language was too broad for the Nevada Supreme Court, which called it a “catchall”—and, indeed, the ethics commissioners themselves had been uncertain where Carrigan’s relationship with Vazquez fit. Was it analogous to a household relationship or a “substantial and continuing” relationship? They differed. Given that an officeholder’s right to express his views through his votes is entitled to great deference, the court found that the language in the law was imprecise and could suppress too much.

“This catchall language fails to adequately limit the statute’s potential reach and does not inform or guide public officers as to what relationships require recusal,” the court’s opinion said. “Thus, the statute has a chilling effect on the exercise of protected speech, for it threatens punishment for noncompliance.”

The case would likely have rested there, but just as Carrigan’s resentment led him into court, an unexpected development kept it there. A federal appeal is an expensive undertaking, something the Ethics Commission probably could not have afforded, but it got an offer of free legal assistance. Attorneys general from other states—particularly Virginia—were seeking a vehicle for their own purposes, a court case that would clarify the issues raised in Nevada that also arise around the country. So the Nevada Ethics Commission is being represented by the University of Virginia Law School. (Some ethics scholars say public agencies should not accept assistance from outside organizations with their own agendas.)

In an effort to dispel the notion that the case is a First Amendment issue, the brief submitted on behalf of the Nevada Ethics Commission to the U.S. Supreme Court makes much of the fact that the first U.S. Congress in 1789 adopted a rule against members voting on their own interests but that no members of that Congress found a First Amendment problem with the rule. “There is no indication that those serving in Congress at the time understood legislative recusal rules even to implicate the First Amendment, let alone to offend it,” reads the Ethics Commission brief.

That may be because there was no First Amendment then. It was the first Congress that approved the Bill of Rights and sent it to the states for ratification, but its members were hardly the ones to consult on its meaning. For one thing, that first Congress opposed having a Bill of Rights. It had to be dragged kicking and screaming into adopting one (a letter from President Washington helped produce the necessary votes) and many congressmembers believed, after the job was done, that the first 10 amendments were insignificant and had little effect. George Washington University constitutional scholar Kenneth R. Bowling has written, “Many law clerks and scholars have searched in vain through the congressional debate over the first 10 amendments for comment on their constitutional or philosophical implications.” Small wonder the Nevada Ethics Commission could find little comment on the First Amendment. It would be left to later generations to invest the Amendment with its force.

But even that first Congress’s rule against self-interested votes left it to the members themselves to decide when a conflict existed. Congress did not attempt to direct the members not to vote—or to penalize them when they did.

The Ethics Commission brief also trivializes the importance of public officials missing individual votes through abstentions—“there is no reason to believe their constituents will suffer any cognizable, let alone ‘severe,’ burden.”

Not everyone agrees. Some elected officials have disagreed with abstention as a remedy for a conflict of interest. For instance, during his two terms as a state assemblymember and one term as a state senator, Charles Joerg of Carson City argued that public officials should disclose their conflicts, then go ahead and vote and leave to voters—rather than unelected administrative bodies—the judgment of whether they had acted properly.

In what is seemingly a demonstration of that concept, Ethics Commission member Rick Hsu declared a conflict at one point in the Carrigan case but participated in it, anyway. He said that he had been involved as an attorney in litigation with Carlos Vasquez and did not believe it would affect his judgment.

Joerg once said, “I think it’s worse to leave the voters unrepresented,” even on minor votes. In the Carrigan case, the vote at issue was not just a routine vote on a minor matter, but a vote of great moment that the whole community was watching.

But political scientist Fred Lokken argues that Nevada politics is so in the grip of corporate money and power, such as that wielded by gambling and mining interests, that it needs the Ethics Commission to stop some officials from voting. In fact, he says, Nevada’s ethics policing is primitive compared to other states and should be beefed up.

“We have behavior going on that, if voters fully comprehended just how much dark influence and distorted influence is operating in state government, they would be shocked and cynical,” he said.

Carrigan said that while state law requires abstention in some cases, it also requires officials to vote whenever possible.

One of the consequences of officials not voting was seen in a May 11, 2009, vote on Lazy 8. Carrigan and Phil Salerno both abstained, and Councilmember Julie Ratti voted against the project. That meant that the Lazy 8 was approved by a 2 to 1 vote—that it was approved by a minority of the 5-member council.

The U.S. Supreme Court brief written by Carrigan’s lawyers is pretty free-swinging and informal and reads at times like a campaign leaflet or political novel (“Mr. Carrigan Launches a Grass Roots Campaign and Wins”), not the kind of formal language one expects in a U.S. Supreme Court case. It argues that Carrigan worked to change the nature of the Lazy 8, getting developers to reduce the gambling space in favor of a family-style entertainment center. And by interpreting the state ethics law to prevent Carrigan from voting, the ethics commission “muzzled him from advocating on the proposal that he had spent over a year crafting—just because an interested party hired Vaquez long after Councilmember Carrigan had taken a public stand on the request.”

A number of “friend of the court” briefs have also been filed in the U.S. Supreme Court case. A brief filed on behalf of the Nevada Legislature came as a surprise to lawmakers when they were questioned about it. It was actually filed by the Legislative Counsel Bureau, the staff arm of the Nevada Legislature. It supports the Ethics Commission. Interestingly, the Reporters Committee for Freedom of the Press filed a brief opposing the application of the First Amendment to the case.

Legal officials in 14 states and the Public Citizen organization founded by Ralph Nader also supported the Commission.

The James Madison Center for Free Speech, the Center for Competitive Politics and the International Municipal Lawyers Association filed briefs supporting Carrigan.

Meanwhile, back in Nevada, some officials, observers and political hangers-on are watching the case with interest. Some compare it to Attorney General Frankie Sue Del Papa’s attempt in 1995 to penalize two Lincoln County commissioners and five Caliente City Council members by removing them from office for taking a position on the proposed Yucca Mountain nuclear waste dump that differed from the state government’s policy. Others say if the Ethics Commission wins, “The people who turn to the Commission for advice is going to go through the floor,” as one municipal official put it.

Asked why he kept pushing the case even though he was not fined or otherwise penalized by the Commission, Carrigan said, “That’s what everybody said, but my answer was, I listened to my city attorney, I followed his advice to the letter, the Ethics Commission chided me for doing it, and I didn’t think it was right, because I still—to this day—contend that I never did anything unethical.”

He also said he’s frequently asked why he fought the case—including by members of the Ethics Commission.