Ethics law too vague when ‘willful’ intent must be determined by courts

Thomas Mitchell

Thomas Mitchell

Imagine if the traffic laws were written in the same manner as Nevada’s public ethics law — using a “reasonable person” standard.
Thus the speed limit would be what a “reasonable person” would perceive it to be depending on traffic and road conditions. You might think 85 mph reasonable but the trooper who pulls you over is thinking 55 is more reasonable.
Don’t fret, if your speeding was not “willful,” you don’t have to pay a fine.
That’s one way to look at the recent 5-2 Nevada Supreme Court ruling in the case of Sparks City Councilman Michael Carrigan. Carrigan had his wrists slapped by the Nevada Ethics Commission because he voted to approve the Lazy 8 hotel and casino project, which was being lobbied for by Carrigan’s campaign manager, Carlos Vasquez.
At the same time Vasquez was receiving a $10,000-a-month retainer from the Lazy 8’s principals, Red Hawk Land Company and/or soon-to-be-jailed lobbyist Harvey Whittemore, he was serving as Carrigan’s campaign manager for free and placing campaign ads at cost.
Carrigan testified in the case that the Sparks city attorney advised him that his relationship with Vasquez was not a conflict of interest because Carrigan would not personally benefit from the Lazy 8 project. Carrigan could have asked the Ethics Commission for an advisory opinion but chose not to.
The ethics law states that a “public office is a public trust and shall be held for the sole benefit of the people,” and that an elected public officer “must commit himself to avoid conflicts between his private interests and those of the general public whom he serves.”
It goes on to say “a public officer shall not vote upon … a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by … [h]is commitment in a private capacity to the interests of others.” These include voting on matters concerning relatives by blood or marriage and any substantial business relationship.

The majority opinion, penned by Chief Justice Kris Pickering, found that, while the “reasonable-person standard in tort law” might require case-by-case evaluation, “they do not call for the wholly subjective, unreviewable judgments that invite seriously discriminatory enforcement, in violation of the due process clause” found in the Fifth and 14th amendments.

Though five Supreme Court justices upheld the Ethics Commission censure of Carrigan, which carries no civil penalty or fine since the act was not deemed willful, two justices dissented, finding the ethics law too vague to withstand constitutional scrutiny and the argument upholding the law as written is illogical and self-defeating.

Justice Michael Douglas wrote the dissent, with which Justice Michael Cherry agreed.

Justice Douglas delivered a syllogistic slam dunk against the majority’s conclusion that the law is not too vague, because Carrigan could have obtained an advisory opinion from the Ethics Commission.

“As the majority indicates, a law is impermissibly vague ‘if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited. …”’ Douglas writes. “Here, in determining that Carrigan’s violation was not willful, the Commission inescapably concluded that he did not know and should not have reasonably known that his conduct would violate (the law). In this lies the dispositive contradiction: the constitution requires that laws be of a nature that a person reasonably should know what is prohibited; yet, here, the Commission concluded that Carrigan should not have reasonably known that his conduct was prohibited. Thus, the Commission’s determination that Carrigan did not willfully violate the statute equates to a legal conclusion that (the law) is vague as applied to Carrigan. Accordingly, this court should vacate the Commission’s censure of Carrigan.”

While the availability of an advisory opinion reduces vagueness concerns, Douglas found, he criticized the majority for treating that as though it disposes of vagueness entirely.

Now, while it might be tempting to use that nonwillful argument when you get your next speeding ticket, I’d think twice if I were you. There is nothing vague about a speed limit sign or the readout of a radar gun. Ethics is another matter entirely.

Thomas Mitchell is a longtime Nevada newspaper columnist. You may email him at thomasmnv@yahoo.com. Read additional musings on his blog at http://4thst8.wordpress.com/.

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