The Public's Right to a Public-Interested Representative

Anonymous

Wed, 07/28/2010 - 05:52

City Related

Update: January 11, 2011 (see below) 
 
According to a July 2 unpublished opinion by Judge Flanagan of the Washoe County (NV)
district court, Carrigan v. Commission on Ethics of the State of Nevada
(attached; see below), a
city council member has a first amendment free speech right to vote
where
there is not "an actual, existing conflict of interest." (p. 13) 
 
Due process also comes into play in the opinion: "In the
absence of an actual, existing conflict of interest, this Court finds
it at odds with the aims of due process to deprive the citizens of the
Fourth Ward of their representative voice on issues pertaining to the
Project, effectively silencing their vote at the ballot box..." (p. 13) 
 
The opinion's conclusion only mentions the first amendment, not due
process, but the court does call the state ethics commission's
unanimous opinion "based on an improper purpose" and "arbitrary and
capricious" due to its violation of the council member's first
amendment rights. 
 
I think it is important to consider the court's arguments in this case, particularly the extent to which conflict of interest
laws deprive constituents of their voices. It's also important to
understand the limits of the opinion, both in terms of the odd Nevada
conflict language and the facts of the case.

A Peculiar Situation That Has Little Applicability to Other Situations 
Fortunately, the specific situation, both the facts and the law, are
peculiar enough that this opinion should be interpreted very narrowly
and the facts should be easily distinguished. The facts, discussed at
the end of this blog post, are in a light gray area in terms of
conflicts of interest. I can't imagine any EC finding a violation based
on these facts. But this case does not involve the finding of a
violation. It involves an advisory opinion. 
 
In terms of law, a court would have to agree with the Washoe County court that
it has the right to question an EC's advice when a conflict is in a
gray area. And then, if it did find that there was no such conflict, a court would have to decide whether an official's
right to vote, which is actually the public's right to be represented,
takes precedence over what the Washoe County court correctly recognizes as the EC's
"interest in ensuring that the Petitioner faithfully discharges his
obligations to his constituents." 
 
Complementary Values 
In its balancing process, the court makes a noble attempt to present the values involved in an
official's right to vote and in a recusal provision as complementary rather
than conflicting. If the many courts
who have recently treated legislative immunity
as an absolute value, in conflict with government ethics, had made this
attempt, their cases might have been decided differently. Here's what the
court wrote (pp. 12 and 13):<ul>
A case like this is very difficult because the interests of the parties
are complimentary [sic] to each other. There is no doubt that the
Petitioner has a protectable First Amendment interest in voting on
matters that come before the Sparks City Council; faithfully
discharging his obligation to represent the will of his constituency.
The State, by and through the Commission, also has an interest in
ensuring that the Petitioner faithfully discharges his obligations to
his constituents. [and] 
 
Nevada has elected to use a representative form of government "to aid in
the conduct of the people's business." ... Complimentary [sic] to that
goal, the purpose of the Nevada Ethics in Government Law is ensuring
that the voice of the people is not drowned out by a self-interested
elected representative.</ul>
The reason I say that this is a noble attempt rather than a success is that I don't think the
council member's interest is a first amendment interest. The court was
closer when it spoke of a council member's obligation to represent the
will of his constituency, but even that is only partially true.
Representatives often vote against the will of the majority. What they
are not supposed to do is vote, or appear to vote, to further their
personal interests or
the personal interests of their family and business associates. This is
why government ethics and legislative immunity have complementary
values: they both seek to protect the public's right to have a
representative acting in the public interest. The second paragraph, that is, the second statement of
the complementary nature of these values, is much more accurate, but unfortunately the court based its argument and conclusions on the first statement. 
 
The EC Advisory Opinion 
The reason that the court found that there was not "an actual, existing
conflict of interest" was that the EC's advisory opinion was based on the council
member's "inability to
deny that a conflict will arise in the future" (pp. 13-14). But that is
not actually the basis of what is admittedly <a href="http://ethics.nv.gov/Ncoe%20Website/OPINIONS%20-%20TEXT/2009/Opinion.Ca…; target="”_blank”">a
questionable
EC
opinion</a>. Here is the essential language of the EC
opinion:<ul>
The abstention requirement does not look at a momentary relationship
but rather at a relationship that exists over a period of time. It
looks back in time, as well as forward. Abstention is about the public
officer's independence of judgment at the time he is called upon to
exercise it.</ul>
Recall
that the EC's statement was made not in enforcement of the state conflict law with
respect to past votes, but rather as advice to a council member who had
sought the EC's advice with respect to future votes. In its finding,
the court does not acknowledge the future-oriented context of the
advice. This, I think, was wrong, and undermines the opinion's
conclusion. 
 
Due Process 
The opinion's case for due process is also problematic. It takes two forms.
The first form involves the
ethics law's protection of the due process rights of citizens to, it
appears, have their representative represent them (p. 13). I
don't believe this is a due process right at all, any more than it is a
first amendment right. It is a right central to the democratic process
and the state constitution, without any need, I believe, for any rights
stated in the bill of rights to be applied. In fact, the court's argument here is effectively a legislative immunity argument based not, as is common, on separation of powers, but rather on the first amendment. This is one reason why I have looked at it so carefully. 
 
The second form of due process in the opinion involves the vagueness of the statutory language
(p. 7), which seems appropriate. The statutory language is admittedly
odd. <a href="http://leg.state.nv.us/nrs/NRS-281A.html#NRS281ASec420" target="”_blank”">Nevada
Revised
Statutes §281A.420</a>.8(a) defines an unusual term,
"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." 
 
For the purpose of enforcement, I would argue that this part of the
definition would not be considered fair, because it is impossible to
predict what relationships would be considered "substantially similar."
But for the purpose of advice with respect to future conduct,
especially where the same advice had been given before in slightly
different circumstances, I don't see a fairness issue. (By the way, an
appeal of the first advice is currently before the state supreme court,
so there might soon be another Nevada opinion on the same topic,
although with slightly different facts.) But the court
did not distinguish between advice and enforcement. 
 
In my blog, I have emphasized the importance of local government
officials dealing responsibly with their possible conflicts of
interest. There is no doubt that the council member had a possible
conflict of interest, and by seeking an advisory opinion from the EC he
acted responsibly. And then he appealed the advice because he didn't
like it, after appealing similar advice before. 
 
An Attempt to Cure the Conflict 
And that is not all he did, or at least all that happened to change the
circumstances of his conflict. His campaign manager for his prior three
election cycles (and possibly the next one), as well as his close
friend and confidant, was involved in a development project that had
to be approved by the council on multiple occasions. Between the two instances of EC advice,
the developer took the campaign manager
off the project, but continued to employ his services on other projects. 
 
Assuming that the council member was involved with having his friend
taken off the project, this was a responsible step in dealing with his
conflict. And his friend certainly made a serious sacrifice. It is
understandable that the council member would feel that this change
would make a difference to his ability to vote on the project. 
 
But since the campaign manager is still in the developer's employ,
there is still a strong possibility that approval of the project would
help the campaign manager. Therefore, the attempt to cure the problem
was only partially successful. 
 
What Deprives Constituents of Their Voice? 
It's interesting to see how the council member dealt with a conflict
issue
back in 2007, when a completely different project involving the
campaign manager came before the council. Here's an excerpt from the
minutes of the September 10 council meeting:<ul>
Council Member Carrigan disclosed that he had asked for an advisory
legal opinion because a friend of his, Carlos Vasquez, is a paid
consultant with Tanamera, the applicant for this agenda item. Mr.
Carrigan said he was disclosing his friendship with Mr. Vasquez under
NRS 281A.501.4 and that he would not be abstaining on the vote for this
item, stating that a public official is dissuaded from abstaining for
four reasons: 
1. Abstention deprives the public, and specifically an elected
official’s constituents, of a voice in matters which come before public
officers and employees. 
2. Public officers and employees should have an opportunity to perform
the duties for which they were elected or appointed, except where
objective evidence exists that private commitments would materially
affect one’s independent judg[ment]. 
3. There are no private commitments, materially or otherwise. 
4. And our City Attorney, who has been giving him outstanding advice,
contrary to what was said earlier, told him that when looking at
abstaining, go to <a href="http://ethics.nv.gov/OPINIONS%20-%20TEXT/1999/99-56.htm" target="”_blank”">the Commission on Ethics' Woodbury opinion</a> [which says that, for an official to abstain, his commitments must have a material effect on the independence of his judgment]. The
burden is on him as a public official, and he will be voting on and
discussing this issue.</ul>
The council member's reasoning behind his decision to vote despite an
apparent conflict is interesting. He first raises the issue of his
constituents' voice, but he does not accurately say what would deprive
his constituents of their voice. It is not abstention that is at fault,
but rather the cause of
the abstention. And the cause of the abstention is the
conflict of interest. 
 
Being deprived of one vote is pretty minor, hardly a loss of voice. An
officials' constituents significantly lose their voice only when the
person they elect has multiple conflicts of interest, or one conflict
that keeps reappearing. For example, the applications of the campaign manager's
employers. 
 
The campaign manager and close friend is involved in numerous projects
and with companies that are involved in even more projects.
When an official runs for office knowing that he has frequent conflicts
due to close relationships with an employee or multiple local developers or
contractors, he must expect to have to recuse himself often and, to be
fair to his constituents, he should let them know this before they
elect them. 
 
The court considered it important that this council member, when he ran, said he was in
favor of the particular
development in question, but conflicts exist separately from an
official's stated position on an issue. Just because an official's
ideology coincides with the personal interest of his campaign manager
does not mean that he doesn't have to responsibly handle the conflict
of interest. 
 
This council member did not give his constituents the
opportunity to reject him due to his frequent conflicts. That, not the
ethics law, is the cause for his having to deprive his constituents of
their
voice on the council. In addition, he could have chosen a different campaign
manager, or he could have chosen a city position that would not involve
voting for or against developments. Either choice would have given his
constituents a full voice. His many choices are more the problem here than the ethics commission's advice. 
 
Thus, not only must an elected official deal responsibly with his
conflicts when they arise, he has an obligation not to put his
constituents in the situation of losing their voice via multiple
abstentions, and he also has an obligation not to blame the EC for a
situation he himself created. 
 
Advice vs. Enforcement 
Outside of the theories of democracy and government ethics, the fact is
that most people believe that officials are swayed by
their relationships, certainly those with their family members and
business associates. They feel the same way about an official's close
friends, but this is very difficult to define, which is why friends and
lovers are usually left out of ethics codes. But they should not be
left out of ethics advice. No one could possibly believe that an
official's judgment is not affected by, for example, a lover
working for a city contractor. Whatever the law says, everyone knows
it's wrong to vote on a contract that involves a close friend or lover. 
 
And this is why a responsible ethics adviser would say not to vote on
the contract. But the same individual or body would not find a
violation if the vote were made, because it can only enforce the
language of the law. This is an important peculiarity of government
ethics, and the opinion in this matter is weaker for having failed to
acknowledge it. 
 
Update: January 11, 2011 
This case was dismissed on appeal by the Nevada Supreme Court on grounds of mootness. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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