Where I Stand — Craig Walton: Cronyism and ethics

Friday, Aug. 4, 2000 | 9:14 a.m.

Editor's note: In August Where I Stand is written by guest columnists. Today's guest, Craig Walton, is program coordinator of the Institute for Ethics and Policy Studies at UNLV.

IN THE NEXT few weeks, candidates for the 2001 Legislature will spell out their ideas for new and amended laws. So far, none has mentioned any need for any fresh work on the ethics in government statute. Is work needed?

Yes. The hot spot is at NRS 281.501/2-8. Though the words clearly forbid a public official using his or her office to benefit family members or business associates, ethics commissioners and others disagree about "cronyism." Is it OK, or not? What if my crony is not in my family and has no business dealings with me, but I am sure he can help me all sorts of ways later on, because he is powerful? Anything wrong with skewing my voting his way?

One side says yes: There is plenty wrong with cronyism, and the law contains enough language for an honest person to find guidance and steer clear of it. Section 421.1 (b) opens the whole topic by saying a public official must commit himself to avoiding any conflict between private interests and "those of the general public whom he serves." And 421.2 (b) says the whole point of the law is "to enhance the people's faith in the integrity and impartiality of public officers and employees." How could that be confusing? How could it be read as saying "OK" to cronyism?

But the other side brings in expensive criminal lawyers who tell us that we are now on the verge of depriving a wonderful person of his or her good name or office, so we must prove beyond a reasonable doubt that black-letter law has been willfully violated. If there is no explicit sentence forbidding some action, and no incontrovertible proof that the perpetrator meant to violate it, then it is unconstitutional for us to chastise or punish such a person.

Public morality and the ethics of office are reduced to the criminal code and the standards we use for felony prosecution. Ethics in government now means "no felonies allowed." If no felony is proven, then we must either leave the person there, or vote him out of office. The people's faith is now to be placed in the hands of those whose actions cannot be proven to violate criminal law.

From where I stand, we must make two changes in Section 501. First, we need to revise the phrase that forbids "commitment in a private capacity to the interests of others"; it should forbid "commitment in a personal capacity to the non-public interests of others." This change shifts the emphasis: It is not just the public official's private life vs. his public life that is at issue here, but also public life in the public interest vs. the use of public office for nonpublic interests (such as special interests).

The second change would be that Section 501.8 on "commitment in a private (or personal) capacity" needs help at 501.8 (e): after it tells us that these wrongful kinds of commitments include favoring one's household, a close blood relative, or one's employer or business partner (a, b, c and d), (e) then says we must also steer clear of "Any other commitment or relationship that is substantially similar to a commitment or relationship described in (a,b,c or d)."

But what is "substantially similar"? Some lawyers see this as equivocal, and so a loophole -- if cronyism isn't helping my boss, family or business partner, it is OK. So we need to say, in (e), that we mean "any other commitment or relationship which a reasonable person would see as replacing impartiality and independence of judgment with partiality or unwarranted preference to the interests of that commitment or relationship."

This sounds technical, and it is. It needs to be discussed. We are heading into a general election where, on recent performance, fewer than four of every 10 Nevada voters will come to the polls. One reason for the people's loss of faith in elections is this change from "trusted person" to "nonfelon," the criminalization of ethics in government. We need and deserve a more ethical, less criminal-law standard. One step toward getting that would be to make these changes in tone and wording so that cronyism will be harder to defend and easier to spot as a betrayal of the people's faith.