The Willful Standard in Nevada's Ethics Enforcement
<br>
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 href="http://www.cityethics.org/node/452" target="”_blank”">a blog post</a> 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.<br>
<br>
In Nevada, where the <a href="http://ethics.nv.gov/" target="”_blank”">state ethics
commission</a> 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 <a href="http://www.cityethics.org/node/752" target="”_blank”">its legislative immunity
victory</a>.<br>
<br>
<span class="Empty">Nevada Revised Statutes <a href="http://www.leg.state.nv.us/NRS/NRS-281A.html#NRS281ASec170" target="”_blank”">Sect.
281A.170</a>
defined "willful violation" as where "the public officer or
employee knew or reasonably should have known that his
conduct violated this chapter." According to <a href="http://www.lasvegassun.com/news/2009/dec/20/state-law-loses-even-more-t…; target="”_blank”">an
article in Sunday's Las Vegas <i>Sun</i></a>, the legislature struck the
language about "reasonably should have known" and replaced it with
acting “intentionally and knowingly.”<br>
<br>
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 <i>Sun</i> 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."<br>
<br>
According to the <i>Sun</i> article, a city council member who is also
president of a labor union (see an earlier <a href="http://www.cityethics.org/node/660">blog post</a> on this case)
got away with ignoring the state ethics commission's advice when the
commission found that his actions were not "willful."<br>
<br>
According to <a href="http://www.lasvegassun.com/news/2009/dec/17/rory-reid-pledges-reform-if…; target="”_blank”">a
<i>Sun</i> article</a> last week, a gubernatorial candidate, Rory Reid, has
made four ethics pledges, including:<br>
<br>
<ul>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."<br>
</ul>
<br>
Truly a sight for sore eyes. But Rory Reid, U.S. Senator Harry Reid's
son, is behind in the polls.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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