An ethical makeover: Additions to panel aim for more efficiency, clout

Sunday, Oct. 17, 1999 | 10:41 a.m.

To shake its image as a toothless tiger the Nevada Ethics Commission is undergoing a makeover intended to give it more bite.

But while there is hope that a new executive director and full-time attorney will help make the commission more efficient, lawmakers say they wouldn't be surprised if the state Legislature took another stab at ethics laws in 2001. State Sen. Ann O'Connell, R-Las Vegas, is one of the legislators taking a wait-and-see approach.

"I want to see whether what we did this year works first," O'Connell said. "We need to see what needs to be tinkered with after they have a two-year track record."

The commission's face-lift, effective Oct. 1, was the result of legislation pushed earlier this year by Gov. Kenny Guinn, who championed ethics reform during his 1998 campaign. The commission, formed in 1977, had long been saddled with lack of funds and a reputation for drawn-out, confrontational hearings.

One individual who won't be around to see those changes is Bill Bible, who abruptly resigned last week as commission chairman to become president of the Nevada Resort Association. His resignation was one reason a commission meeting scheduled Friday in Las Vegas was canceled.

With Guinn now faced with having to appoint a new member, the commission may hold off naming a new chairman until its Nov. 18 meeting in Reno. But Bible's resignation should have little impact, given the fact he was chairman for less than three months.

The real impact will be caused by the new law, which resulted in the hiring of executive director Kenneth Rohrs, former dean of the National Judicial College in Reno, and staff attorney Nancy Varnum. They replaced a full-time clerk and a deputy attorney general who worked for the commission part time.

Former Commissioner and Assemblyman Scott Scherer, now Guinn's legal adviser, said the new two-member staff should be better equipped to screen complaints about public officials.

"When I was on the commission there were cases that didn't sound quite right but there wasn't enough evidence to find a violation," Scherer said. "With better investigations they'll be able to prove evidence up front. We're definitely going to have speedier hearings and our staff will give us more thorough investigations."

The new staff will work with a commission that also has been expanded to eight part-time members from six. The commissioners -- four appointed by the governor and four by the Legislative Commission -- will take turns sitting on two-member panels that will screen complaints to determine whether there is cause to proceed with a full hearing.

The smaller panel will have up to 45 days to investigate the complaint and up to 45 additional days to determine whether there is cause to proceed to a full hearing. If approved, the remaining six commissioners will have up to 60 days to conduct the hearing and render a decision. Cases are designed to last 60 to 150 days.

"The only way this will work is if we don't take every case to a full hearing," Scherer said. "If there isn't merit, the case should be thrown out."

Past commission hearings, by contrast, had inconsistent time frames. Some dragged on for more than a year. And the commission frequently got bogged down in marginal complaints that ended up going nowhere. The most notable victim was former Las Vegas Mayor Jan Laverty Jones, who was hauled before the commission nine times and cleared each time.

Commissioner Hal Smith of Henderson, a former state senator, said he is looking forward to the streamlined process.

"All of these things are going to be beneficial," Smith said. "We are going to be able to handle cases faster with the new procedures in place. The fact that we will have our own attorney will also be beneficial."

An ethics manual that explains state law will also be published and distributed to all public officials.

"Part of our new mission will be to educate the legal advisers to the county commissions and city governments," Smith said.

The commission still doesn't have the power to remove someone from office on its own. But certain ethical breaches are now considered felonies instead of misdemeanors. If the commission so recommends, the state attorney general's office could pursue a felony prosecution that could result in an official's removal. Potential fines for ethical breaches also have increased from $5,000 to $25,000.

The commission also has a budget of $390,264 this fiscal year, almost quadruple the $107,500 earmarked in fiscal 1997. Some of the added funds will help pay for computers and software as well as staff salaries. The investigations budget also has climbed to $47,086 from a paltry $1,500 over the same period.

This is not to say that Nevada has suddenly become the nation's model for ethics legislation. To the contrary, recent high-profile cases have shown there is still considerable debate over Nevada's ethics laws and doubts as to whether the commission has any real impact. For instance:

Clark County Commissioner Yvonne Atkinson Gates, found to have violated ethics laws in the awarding of McCarran International Airport concessions to friends, sued the commission and got a district judge to toss the ruling. Washoe County Judge Jerome Polaha ruled last month that the ethics laws as they relate to friendships are vague. The commission has decided to appeal Polaha's ruling.

Assemblyman Bob Beers, R-Las Vegas, was fined $5,000 for distributing campaign fliers against a 1998 political opponent that the commission argued contained false information. Beers, who defended the fliers, challenged the commission's ruling by filing a federal civil rights suit that is pending before U.S. District Judge Philip Pro.

The commission slapped then-Las Vegas Constable Bob Nolen with ethics violations and a $5,000 fine in 1997 for allegedly failing to show up at the office and for using taxpayer equipment such as a fax machine and cellular telephone for personal use. Nolen was still found to have committed ethical breaches when he took his case to court. But District Judge Mark Gibbons ruled that his violations weren't willful. The fine eventually was dropped and Nolen retained his right to run for office again.

Consequently, some lawmakers and other observers argue that more needs to be done to strengthen ethics laws and clarify the commission's role. Getting everyone to agree on such changes will be difficult, however.

Assemblywoman Chris Giunchigliani, D-Las Vegas, still believes the commission shouldn't even get involved in complaints regarding political campaigns. Instead, she believes disputes over campaign truthfulness should be handled by the courts, such as through libel actions.

But her bill this year to eliminate campaign disputes from the commission's authority was watered down by the state Senate. The commission's power in that area was kept intact.

"I still believe that's unconstitutional," Giunchigliani said. "Unfortunately negative campaigning works. That's why it is used."

UNLV ethics Professor Craig Walton meantime has argued that the state should create a separate commission to consider campaign disputes.

"Take it out of the ethics commission," he said. "A number of other states have done this."

Walton, Scherer, and others are also concerned about the ramifications of Gates' lawsuit. Scherer and the commission believe the statute regarding friendship is clear and that Gates broke the law.

"If the Nevada Supreme Court says I'm wrong, then we'll be prepared to go back to the Legislature and fix it," Scherer said.

Walton said part of the problem is that defense attorneys for Gates and other politicians hit with ethics complaints have argued that ethics violations should be proved beyond a reasonable doubt, similar to criminal proceedings. The professor, however, said the public might be better served if the threshold was similar to the preponderance of evidence standard used in civil litigation.

He said he would also like to see the commission distribute an ethics pamphlet to the public that explains the law in plain English and spells out the procedure to file a complaint.

"One of the biggest controversies in the law is what counts as a conflict of interest," Walton said. "Your family is covered. Your business associates are covered. And the law says anyone else in a 'similar situation' is covered, but what does 'similar situation' mean?"

O'Connell also said she thinks ethics laws could be improved by requiring the commission to base decisions on specific criteria.

"There shouldn't be any doubt in anyone's mind about what is the law and what isn't," O'Connell said.

She said the Legislature also might be wise to expand the commission from eight to 15 members. Among her arguments is that the commission could then break up into smaller groups that could hear cases throughout rural Nevada. She said the commission currently schedules hearings only in Las Vegas, Reno and Carson City, forcing many rural Nevadans to travel long distances.

Some, like former Assemblyman Larry Spitler of Las Vegas, would like to see the Legislature review ethics laws each session. Spitler, former chairman of a Clark County ethics task force, also believes ethics is a topic that should be discussed in orientation meetings for lawmakers before each legislative session.

But others such as Beers aren't convinced that it is even necessary to have an ethics commission. He said the commission has added to public cynicism about government rather than the reverse because of inconsistencies in what it considers ethics violations. But he's hopeful the beefed up commission will be better than its predecessors.

"It certainly couldn't have gotten any worse so this is probably a move toward the better," he said.

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