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Carrigan v. Commission on Ethics of State

Supreme Court of Nevada

November 27, 2013

Michael A. CARRIGAN, Fourth Ward City Council Member of the City of Sparks, Appellant,
v.
The COMMISSION ON ETHICS OF the STATE of Nevada, Respondent.

Page 881

Griffin, Rowe & Nave LLP and John W. Griffin and Matthew M. Griffin, Reno; Orrick, Herrington & Sutcliffe LLP and Rachel M. McKenzie and Mark S. Davies, Washington, D.C., for Appellant.

Nevada Commission on Ethics and Yvonne M. Nevarez-Goodson, Carson City; Vinson & Elkins, LLP, and Jeremy C. Marwell, Washington, D.C., for Respondent.

BEFORE THE COURT EN BANC.[1]

OPINION

PICKERING, C.J.:

This case returns to us from the United States Supreme Court, Nev. Comm'n on Ethics v. Carrigan, 564 U.S. __, 131 S.Ct. 2343, 180 L.Ed.2d 150 (2011), which reversed our decision in Carrigan v. Comm'n on Ethics, 126 Nev. ----, 236 P.3d 616 (2010) (5-1). Where we held that Sparks City Councilman Michael Carrigan's vote on the Lazy 8 hotel/casino project constituted protected speech under the First Amendment, 126 Nev. at __, 236 P.3d at 621, the Supreme Court held the opposite. 564 U.S. at __, 131 S.Ct. at 2347. " [T]he act of voting" by an elected official on a local land-use matter, the Supreme Court held, " symbolizes nothing" ; it is " nonsymbolic conduct engaged in

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for an independent governmental purpose." Id. at __, 131 S.Ct. at 2350-51. Since Carrigan's vote on the Lazy 8 project did not constitute protected speech, the Supreme Court reversed our decision that the First Amendment overbreadth doctrine invalidated the conflict-of-interest recusal provision in Nevada's Ethics in Government Law. Id.

On remand, Carrigan makes two additional arguments. First, he contends that the conflict-of-interest recusal provision in Nevada's Ethics in Government Law is unconstitutionally vague, violating the Due Process Clauses of the Fifth and Fourteenth Amendments; second, that it unconstitutionally burdens the First Amendment freedom-of-association rights shared by Nevada's elected officials and their supporters. Because Carrigan did not raise these arguments in his brief in opposition to the Commission's petition for a writ of certiorari, the Supreme Court did not address them. 564 U.S. at __, 131 S.Ct. at 2351. We do so now.

I.

A.

This proceeding challenges the constitutional validity of NRS 281A.420(2)(c) and NRS 281A.420(8), the core conflict-of-interest recusal provisions in Nevada's Ethics in Government Law.[2] The lead-in section to the Ethics Law reminds us that " [a] public office is a public trust and shall be held for the sole benefit of the people." NRS 281A.020(1)(a). And it emphasizes that an elected public officer " must commit himself to avoid conflicts between his private interests and those of the general public whom he serves." NRS 281A.020(1)(b).

NRS 281A.420(2)(c) prohibits public officers from voting on matters as to which they have a conflict of interest. It states that " 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," inter alia, " [h]is commitment in a private capacity to the interests of others." A disqualifying " commitment in a private capacity to the interests of others" means a " commitment to a person" who is a member of the officer's household; is related to the officer by blood, adoption, or marriage; employs the officer or a member of his household; or has a substantial and continuing business relationship with the officer. NRS 281A.420(8)(a)-(d). Paragraph (e) adds a loophole-closing catchall: " Any other commitment or relationship that is substantially similar" to one of those listed in the preceding paragraphs (a)-(d).

The Ethics in Government Law offers an advisory opinion option. Under NRS 281A.440(1), a public officer may request and receive an Ethics Commission opinion regarding " the propriety of his own past, present or future conduct as an officer," including, specifically, whether a conflict of interest exists that requires the officer to abstain from voting on a matter, NRS 281A.460. The Ethics Commission must render an advisory opinion " as soon as practicable or within 45 days after receiving a request, whichever is sooner." NRS 281A.440(1). The request is confidential, NRS 281A.440(5), and the advisory opinion final and authoritative. See NRS 281A.440(1).

Nevada's Ethics Law distinguishes between willful and nonwillful violations. The distinction does not affect the determination of whether a violation has occurred, only the sanction to be imposed. If the Commission deems the violation willful, it " may " but is not required to " impose ... civil penalties" of up to $5,000 for a first violation, together with attorney fees and costs, NRS 281A.480(1) & (2) (emphasis added). If the Commission believes the violation may also constitute a crime, it must refer the matter to the Attorney General or the district attorney " for a determination of whether a crime has been committed that warrants prosecution." NRS 281A.480(7).

NRS 281A.170 defines " [w]illful violation" to mean " the public officer or employee knew or reasonably should have known that his conduct violated" the Ethics Law. By law,

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the Commission cannot deem a violation willful if the public officer

... establishes by sufficient evidence that he satisfied all of the following requirements:
(a) He relied in good faith upon the advice of the legal counsel retained by the public body which the ...

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