The Carrigan Oral Argument: How to Deal with Vagueness

Anonymous

Wed, 05/04/2011 - 07:57

City Related

Needless to say, <a href="http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-568…; target="”_blank”">last
week's
oral
argument before the U.S. Supreme Court</a> in the Carrigan v.
Nevada Commission on Ethics case, which <a href="http://www.cityethics.org/search/node/carrigan" target="”_blank”">I have been
following</a> over the past year, was the last oral argument of the
term. Was this putting local government ethics in the caboose or saving
the best for last? 
 
In the oral argument, there is a great deal of interest for those
interested in local
government ethics. Topics include the application of First
Amendment free speech and association protections to conflict and
withdrawal provisions, whether legislators may apply vague standards to
themselves and their local government colleagues and, most important, the use of advisory opinions and EC
decisions to interpret otherwise vague provisions and thereby make them enforceable.

Here's the story in a nutshell. 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" target="”_blank”">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." 
 
Council Member Advocacy Outside of Council 
One piece of good news is that most of the justices who spoke did not
seem to
feel that a legislative vote is protected by the First Amendment.
Counsel for the Nevada EC put it well:<ul>

Neutral laws requiring official recusal for conflict of interest do
not abridge free speech because a legislator's vote, however
expressive, is not protected speech. It is, rather, a legally binding
exercise of State power that he wields as an incident of public office.</ul>

The EC's counsel also made another interesting point on this
topic: "since
the earliest days of the Republic recusal rules have been
understood to serve important interests unrelated to any views a
legislator may want to express... ." 
 
However, withdrawal from participation also includes advocating for or
against a matter,
which is more clearly speech than a vote is. But it is not the speech
of an
ordinary individual that must be protected from government
interference, but
rather the speech of an extraordinary individual representing ordinary
individuals and required to represent their interests, not the
representative's personal interests. 
 
What was disconcerting in this part of the argument was the EC's
attorney's response to Justice Kennedy's question, "[Recusal] doesn't
apply to outside
advocacy?" The attorney answered, "Absolutely. It does not apply to
advocacy as a citizen outside the
legislature." 
 
This is not usually the case. Withdrawal from participation does
include all communications concerning
a matter, both in the legislature and outside of it. The appearance of
impropriety would not be any different if a council member went around
the community giving speeches and bargaining with his fellow council
members to help his business associate get a contract than if
he gave the same speech and made the same arguments during the council
session on the matter. 
 
In
any event, can a council member ever advocate as a citizen relating to
matters before his council? Is there a button she can push to go from representative mode to cititzen mode, and back again? 
 
This sort of problem often arises when ethics matters are brought
before a court.
Often, it appears that neither counsel nor judge truly understands
government ethics, so they are willing to concede issues that most
government ethics professionals would not think of conceding. 
 
If the court's decision makes a distinction between advocacy inside and
outside of council proceedings, this could have a serious long-term
effect on the
definition of withdrawal. It would be a crime, since the matter was not
well argued and its effects would most likely not be taken into
account. It would also open a hole in the issue of whether government
officials have obligations that lessen their First Amendment rights,
which could lead to their being granted further rights because, in the midst of First Amendment arguments, their
obligations are too often ignored by the courts. 
 
Vagueness 
Once you get past the First Amendment issues (see below for a section
of freedom of association), which are, I believe,
irrelevant, the most important issue is the vagueness of the
"catch-all" provision. I argued earlier that it is too vague for
enforcement, but a good, although poorly worded, aspirational
provision. The oral argument to some extent changed my mind. 
 
Counsel for the EC defended the Nevada provision by pointing out that
there are other broad, vague conflict
provisions. He mentioned two sorts of provision. New Jersey's conflict
provision requires only "a direct
or indirect financial or personal involvement." 
 
Seattle's conflict provision applies "whenever it could appear
to a reasonable person
having knowledge of the relevant circumstances that the covered
individual's judgment is impaired because of either a personal or
business relationship not covered under subsection A or B above," which
lists the covered relationships, "or a transaction or activity engaged
in by the covered individual." I oppose both "reasonable person"
standards and "impairment of judgment" language in enforceable ethics
provisions. 
 
These examples seem to have had an effect on the justices. The odd Nevada
provision is at least not alone in being vague. The justices ran with
this idea, looking at both
congressional and judicial ethics provisions that are vague, and
considering the
way that they are handled and why it is acceptable. 
 
Justice Scalia led the way: "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? 'And where such an interest has appeared, his voice is
disallowed, even after a division.'" 
 
Justice Scalia took this a step further a bit later in the oral
argument: "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 legislatures, and other
officials, operate,
but local governments are creatures of the state, so this is acceptable
in our governmental system. 
 
During the argument of Carrigan's counsel, Justice Scalia raised the
fact that "judges are subject to ethical rules which prohibit
their participating if there would be, quote, 'an appearance of
impropriety.' If there's anything vaguer than that I can't imagine what
it might be. Can I get out of all that stuff?" The latter comment is a
reference to calls for Justice Scalia to recuse himself with respect to
Vice President Dick Cheney, and another situation, I believe. 
 
Carrigan's counsel tried to distinguish the situations by arguing that
judges are not supposed to
have political loyalties, whereas legislators are. But Carrigan's
relationship was
not a purely political relationship, so the argument did not go over
well. 
 
Late in the oral argument, Carrigan's counsel had an exchange with
Chief Justice Roberts, in which counsel agreed that vagueness,
presumably pursuant to a due process argument, can be separated from
the First Amendment issues. I agree that this should be decided solely
as a due process issue. 
 
Creating a Common Law Relating to Conflicts 
Justices Breyer and Kagan ran with Justice Scalia's idea about vague
conflict rules, recognizing that the
recusal rules for judges have been worked out over the years case by
case.
Justice Breyer asked, "Why is it impermissible for the Executive Branch
or the
Legislative Branch also to use a common law, case-by-case method of
elucidating through example what a general ... provision
means?" 
 
To which Carrigan's counsel responded, "the candidate
and the volunteer [meaning the campaign manager/friend/vendor, hardly a
"volunteer"] have to
know ex ante [that is, before they enter into the relationship] whether
to
engage in this relationship or not." 
 
Justice Kagan said, "But why do they have to know ex ante? 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?" 
 
In short, the justices recognized that any ethics rules are going to be
somewhat vague, and that it is the job of an EC to elucidate their
boundaries by means of advisory opinions and decisions on complaints. 
 
This is a mature approach, which recognizes, effectively, how important
it is to seek advice and how important advice is in informing others
about what is required by ethics provisions. 
 
This approach has made me think differently about a matter I've talked
about a good deal: the difference between aspirational and enforceable
ethics provisions. I have taken the position that relationships that are difficult to define, such as with "friends,"
should be in the aspirational section of an ethics code, so they provide guidance in dealing responsibly with appearances of impropriety, if they cannot be enforced. This means
that an EC might advise an official to withdraw from a matter due to a
relationship even
though, were a complaint to be filed alleging an ethics violation for
failure to withdraw under the same circumstances, the same EC would not
find
a violation. 
 
In other words, the irresponsible handling of a conflict situation is not
always enforceable. 
 
But Justices Breyer and Kagan effectively took a different position.
They seem to feel that such an
ethics provision is enforceable, and that, to prevent enforcement, an
official should seek advice from the EC, possibly first consulting the
EC's advisory opinions and decisions. To the extent that an EC creates
a
common law of advice and decisions that interpret the provision, even
vague language will become clear in terms of what it applies to and
what it does not apply to. 
 
If there was a quick and professional advisory system in place, I agree
that this would be the best way to deal with government ethics
enforcement. I hope that this approach appears in the Supreme Court's
opinion. 
 
Freedom of Association 
Carrigan's counsel raised a new issue in the case, which was discussed
in the oral
argument: that the First Amendment right to freedom of
association between candidate and campaign workers was impinged by
forcing candidates to decide in advance whether a campaign worker's
interests might force the candidate to withdraw from a matter in the
future. It would be an interesting issue if campaign workers' interests
were actually taken into account by ethics codes and commissions, but
they are not, even in the Carrigan case, where he was far more than the
campaign worker Carriagan's counsel tried to pass him off as. 
 
Counsel for the EC argued that there would be a negligible effect on
association, because it would not happen very often. "In order for the
recusal
statute to apply, two circumstances have to be simultaneously met.
First, there has to be a qualifying relationship which is close and
ongoing, and simultaneously ... the third
party must have a private, usually pecuniary, interest before that same
legislator." 
 
Counsel for Carrigan led off his argument with a statement that applied to
association and sounded like something out of a libertarian blog:<ul>

an unelected commission has arrogated to itself essentially the
right to invalidate an election result and to do it in a way that
treats core political association as corrupting. If the police of
political purity are going to tell an elected official that he cannot
cast the vote that he ran on and was elected to cast, they have to do
it clearly, they have to do it prospectively, and they have to do it
for an important reason.</ul>

In fact, the election result would not have been invalidated by the
council member's withdrawal, nor does the requirement of withdrawal
mean that an official's relationship with his campaign manager is
corrupting. First of all, the relationship was not merely political,
but also a close friendship and a business relationship, since the
campaigns' principal vendor was the campaign manager's company. Second,
the relationship does not have to be corrupting to mean that it is
inappropriate to participate; the relationship only needs to create the
appearance of corruption, which undoubtedly exists in this case. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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The Carrigan Oral Argument: How to Deal with Vagueness

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