Carrigan and an Obligation to Seek Ethics Advice

Anonymous

Mon, 10/03/2011 - 07:29

City Related

Yet another brief has been filed in the Carrigan v. Commission on
Ethics of the State of Nevada case, this time <a href="http://caseinfo.nvsupremecourt.us/document/view.do?csNameID=19690&csIID…; target="”_blank”">the EC's supplemental brief on remand to the Nevada Supreme Court</a>. 
 
The principal issue discussed in this brief is vagueness, which has
stood in the background behind First Amendment issues of free speech
and free association. The free speech arguments were <a href="http://www.cityethics.org/content/supreme-courts-local-government-recus…; target="”_blank”">put to rest by the U.S. Supreme Court</a>, and the free association
arguments were found not to have been originally raised, so they
were dismissed. 
 
In <a href="http://www.cityethics.org/content/carrigan-oral-argument-how-deal-vague…; target="”_blank”">a
blog post on the oral argument</a>s before the U.S. Supreme Court,
I discussed some of the issues raised in this brief, because they
were discussed by the justices, even though their decision itself
said nothing about vagueness, because the Nevada courts had not reached this issue.
Now it will be discussed, and its discussion raises far more interesting and
important issues than how the First Amendment applies to government
ethics.

First, let me repeat the nutshell version of the Carrigan case.
Carrigan is a member of the Sparks
City, NV council. His close friend, campaign manager for three
campaigns, and principal vendor of the campaigns became a consultant
to
a
developer with a matter before the council. Carrigan asked the city
attorney if he could participate in the matter, and the city
attorney
gave him the green light (as city attorneys so often do). Carrigan
participated, someone filed an ethics
complaint, and the state ethics commission, which has jurisdiction
over
local officials, found that Carrigan had violated a "catch-all"
conflict provision in the state ethics code (<a href="http://leg.state.nv.us/nrs/NRS-281A.html#NRS281ASec420">Nevada
Revised
Statutes §281A.420.8(a)</a>), which defines "commitment in a
private capacity to the interests
of others" (an unusual term) 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." 
 
Vagueness 
Most basic conflict provisions are vague, in the sense that it is
not clear from the language of the code exactly which conduct with
respect to which people is prohibited. No definition of "interest"
or "benefit" can be completely clear. And many codes use the
language of the "reasonable person" or "impaired judgment" or
"influence." All of these terms are necessarily vague. 
 
With vague terms such as these, how can a local government official
get due process? If there was nothing but the language of ethics
provisions and enforcement, it could well be argued that ethics
provisions could not be enforced outside of a limited number of
black-and-white situations. 
 
An Obligation to Seek Advice 
But there is something other than language and enforcement. There is
advice. And there are advisory opinions that let officials know about past advice. As
Justice Kagan said in the oral argument in Carrigan, "There was an
advisory process that was set up by the Nevada commission here. ...
Mr.
Carrigan chose not to use it. But he could have gone to the
commission, said: What do you think about this relationship? Does it
fit or does it not fit?" 
 
The EC brief cites U.S. Supreme Court decisions that have "held the
availability of such mechanisms to be critically important to
vagueness analysis. E.g., <a href="http://supreme.justia.com/us/413/548/case.html#580" target="”_blank”">Letter Carriers, 413 U.S. at 580</a> ('It is [
] important . . . that the Commission has established a procedure by
which an employee in doubt about the validity of a proposed course
of conduct may seek and obtain advice from the Commission and
thereby remove any doubt there may be as to the meaning of the
law'); <a href="http://supreme.justia.com/us/413/601/case.html#608" target="”_blank”">Broadrick v. Oklahoma, 413 U.S. 601, 608 & n.7 (1973)</a>
(State Personnel Board can 'rule in advance on the permissibility of
particular conduct')." 
 
This view implies an obligation to seek advice, which in a
well-designed ethics program may even be made express. By
"well-designed" I mean that at least informal advice is available
immediately or within a few days, and that everyone who is under the
jurisdiction of an ethics commission has the right to obtain such
advice. 
 
Some ethics codes limit advice to officials and employees, but cover or affect
others, such as candidates, contractors, and those who give gifts or
seek permits or grants. This is wrong. Advice should be open to
anyone under an ethics commission's jurisdiction, and even to those
directly affected by ethics provisions, even if they may not be
directly penalized (e.g., a contractor whose contract is subject to
avoidance). It's useful to have everyone who deals with government get involved in an ethics program through its most important program, ethics advice. It's also useful to allow citizens and, especially,
citizen groups to ask for advice in order to better ensure that
ethics codes are followed. Even if officials and employees have an
obligation to ask for advice, it is important that citizens be able
to seek advice for those who manage their community when those
officials fail to ask themselves. 
 
The Importance of a Monopoly on Ethics Advice 
Carrigan did something worse than fail to seek advice from the state
ethics commission: he sought advice from the city attorney. By
doing this, he made it seem as if he were being responsible. But he
was not. And the city attorney should have told him this. And the city attorney should have explained to Carrigan that if he advised Carrigan that he could participate in the matter, it would be seen as forum
shopping, that is, going to the person he believed would allow him
to do what he wanted. 
 
Ethics advice cannot be something you can seek from whomever you
want. An ethics commission must have a monopoly on ethics advice in
order to ensure consistency (equal protection) and in order to
create a public body of advice on which other officials can rely. In
the oral argument, Justices Kagan and Breyer noted that the
recusal rules for judges were worked out over the years case by
case, in a common law approach. When government attorneys, and
others, give ethics advice confidentially, without any
accountability or transparency, and with an interest more in their
"client" than in maintaining the public trust, this seriously
undermines this case-by-case approach, affecting not only advice but
also, as is seen here, enforcement. 
 
It is worth noting that Carrigan argued that the vagueness of an
ethics provision led to its arbitrary enforcement by the ethics
commission even though he had sought the advice of an individual who was
not even part of the ethics program and could not be held to any consistent application of ethics laws since his advice was confidential. And how could an ethics program be expected to
enforce laws against officials in a non-arbitrary manner when those
officials can ask anyone for advice and thus, in effect arbitrarily,
prevent the ethics commission's enforcement of the law? 
 
The Line Between Advice and Enforcement 
Requiring officials and employees to seek ethics advice would do
more than deal with the issue of vagueness. It would remove the line
between advice and enforcement that causes the many gray areas of
government ethics to exist in a sort of limbo outside of the ethics
process, where confusion and accusations undermine the public trust.
By this I mean that the media, blogs, and complainants are
constantly accusing officials of unethical conduct that either falls
in a gray area or outside of government ethics altogether. 
 
It might
seem unfair to penalize an official for not withdrawing from a
matter where the law did not clearly apply to the situation, but it
is not unfair to advise an official to withdraw from participation in a matter where there is an appearance of impropriety, but the law does not clearly prohibit participation. If
an official is required to seek advice regarding gray area matters,
then an ethics officer or commission can create an increasingly clear interpretation of
the law that will bring advice and enforcement together and
eventually make enforcement all but unnecessary. 
 
Requiring officials to seek advice would make it clear, in a way
nothing else could, that government ethics is nothing like criminal
enforcement, in fact, that government ethics is about advice, not
enforcement. Only when officials fail to fulfill their obligation to
seek advice regarding particular relationships and gifts would they
be in violation of an ethics code. What clearer line could an
official ask for? 
 
Requiring officials to seek advice both clarifies ethics code
language to the individual and to other officials, and clarifies an
official's obligation to the public. It replaces a number of rules,
which can be either vague or, in an attempt not to be vague,
extensive and complex, with one clear rule: if the law isn't
absolutely clear, ask. Since that is already the first rule of government ethics, this requirement is a perfect solution! 
 
Unjustified Accusations 
And raising advice above enforcement means that unjustified
accusations can easily be seen for what they are: unjustified
political attacks. Why? Because if they were justified, the critics
would seek advice or demand that the official seek advice. When the
ethics officer or commission said that the conduct is either
acceptable or outside the commission's jurisdiction, this would put
to rest the accusations, at least as ethics accusations. They could
then be treated as what they are: either unjustified or
political rather than ethical. 
 
Doing this could also open up the usually confidential dismissal of
complaints, whereby inappropriate and unjustified ethics complaints
are dismissed, often without any explanation or knowledge, while the
accusations continue in the media and on blogs, undermining the
public trust without the ethics commission fulfilling its role as
the responsible party in the discussion. Removing the line between advice and enforcement, such complaints could be treated just like a request for ethics advice, that is, the ethics commission's decision could be shared with other officials and the public for educational purposes and to further the creation of a common law of ethics in the jurisdiction. The result would likely be the increasing depoliticization of government ethics. This would make the ethics process far more respected and effective. 
 
Another Problem with Ballot-Box Ethics Enforcement 
Finally, I want to note one valuable observation in the brief that
is unrelated to the above. Carrigan argued that disclosure of a
conflict should be sufficient. This is an argument many officials
raise when they want to undermine an ethics program. They always
argue that enforcement should be done at the ballot box. 
 
The EC notes that "the State’s interest in the integrity of the
office does not belong just to a representative’s own constituents,
but to all the people of the State. Cf. <a href="http://www.leg.state.nv.us/const/nvconst.html#Art15Sec2">NEV. CONST. art. 15, §
2."</a> (the oath of office provision). 
 
This is something that is usually ignored when disclosure-only approaches
are discussed. The ballot box is not only an ineffective way of
enforcing an ethics code, but it ignores the fact that government
integrity and the public trust are not the responsibility of voters,
nor can voters be expected to provide protection for the rest of the
public. When officials
act unethically, it reflects on the entire government and on government in general, undermining
the public trust beyond the official's specific area. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
203-859-1959

Search

Carrigan and an Obligation to Seek Ethics Advice

Tags

Share This Page