Expanded ethics panel passing test

Friday, March 2, 2001 | 1:32 a.m.

"Bigger," "faster" and "more efficient" have been used by proponents to describe the Nevada Ethics Commission since it underwent a major face lift less than two years ago.

Commissioners have nothing but praise for changes from the 1999 Nevada Legislature that increased membership of the ethics body from six to eight, accelerated the hearing process and stiffened penalties for statutory infractions.

"It has provided better balance on the commission and eliminated confusion," Commission Vice Chairman Todd Russell of Carson City said. "Giving the commission its own full-time executive director and legal counsel has also been helpful in terms of providing uniformity in opinions.

"It's not that the people on the commission in the past did a bad job. But we're operating faster," he said.

The new rules are being put to the test this year by high-profile cases that involved the likes of Las Vegas City Councilman Michael McDonald and Clark County Commissioner Erin Kenny. McDonald was found guilty last month of violating ethics laws, but was not fined. Kenny will appear before the commission April 19 to answer allegations that she used her position to seek or accept favors.

But outsiders say the commission still has major drawbacks, and some question whether it can ever be truly effective in ridding government of corruption.

"If the Ethics Commission got 'sunsetted,' Nevada politics would go unchanged," said Eric Herzik, political science professor at the University of Nevada, Reno. "Has politics changed because of stiffer ethics penalties?

"What is dirty politics in one person's eye may not be dirty politics to another, and I don't think turning politics over to a quasi-judicial body has worked."

The Ethics Commission was created in 1975 as part of "good government" reforms that swept the nation after the Watergate scandal. But through most of its existence, the commission had been little more than a toothless tiger with limited authority and funds. It fined only one public official -- former Mineral County Clerk-Treasurer Steven Bowles -- in its first 22 years of operation.

It wasn't until the mid-1990s that the commission found itself besieged by an endless string of high-profile cases. But rules and regulations were often confusing to participants, and some cases dragged on for months.

Commission Chairman Peter Bernhard, a Las Vegas attorney, recalled problems when he defended public officials before the ethics body.

"It was very difficult for the public officials because there were so many issues that weren't clarified," Bernhard said. "It took cases a while to work through the system -- longer than the public officials wanted."

Gov. Kenny Guinn, elected in November 1998, vowed as one of his campaign planks to strengthen the commission and the ethics laws. In 1999 he signed legislation that added two commissioners, a full-time executive director and legal counsel. The budget, $360,384 this fiscal year, is more than triple the $107,500 earmarked for fiscal 1997.

Part of the commission's face lift involved its personnel. Only one of the eight members -- former state Sen. and Assemblyman R. Hal Smith of Henderson -- joined the commission before 1999. Its new executive director, Polly Hamilton, has only been on board since December. The result is a lack of institutional memory, which Hamilton said is not necessarily bad.

"It's neutral because of the new laws," Hamilton said. "Since we have new faces dealing with the new laws, I'd call it a wash."

The commission also has entered the Information Age, having established a website at ethics.state.nv.us that includes ethics laws and prior opinions.

The commissioners, who serve part time for four-year terms and are paid $80 a meeting, conduct hearings as necessary in Las Vegas, Reno and Carson City. By law, there are four Republicans and four Democrats; four members are from Clark County and four from Northern Nevada. Four are gubernatorial appointees and four are appointed by the Legislative Commission. The intent is to achieve political and geographic balance.

Two-tier process

By expanding the commission to members, the 1999 revisions created a two-tier review process to handle complaints from the public or requests for opinions from public officials. Hamilton, or a contracted investigator if necessary, reviews complaints and requests for opinions and makes recommendations.

"When I started out on the commission (in 1997), a case would take up eight inches of paper in a folder, including news reports that were not germane to the case at hand," Smith said. "Now we have concise files that pertain to the issue."

Two commissioners, selected on a rotating basis, have up to 45 days to review a complaint and up to 45 additional days to determine whether there should be a full hearing. Those hearings are conducted by the other six members, who have up to 60 days to hear the case and reach a decision. That means a case should be resolved within 60 to 150 days.

Tight timetables

"It has given us tight timetables to make sure these decisions are reached," Bernhard said. "But the other factor that has helped us process these cases more expeditiously is our staff and legal counsel."

Fines for willful ethical violations were increased from $5,000 to $25,000 under the 1999 legislation. But the commission has maintained a high threshold for levying fines.

Last month, for instance, the commission found that McDonald violated ethics laws by advocating that the city purchase Las Vegas Sportspark to help bail his boss, Larry Scheffler, out of a bad investment. But McDonald avoided a fine when the commission split 3-3 on whether his behavior was willful.

The commission can recommend to the state attorney general's office that it pursue a felony prosecution, which could result in an official's removal. But the commission doesn't have the power to remove an official. Nor should it, Smith said.

"We're not looking for things to bring people down," he said. "Our power is just to inform the public about what we find. The electors have to make their decisions based on what they know."

That is why the worst thing that usually happens to officials found guilty of violating state ethics laws is that they are voted out of office when they come up for re-election.

Former Las Vegas City Councilman Frank Hawkins is an example. He lost to McDonald in 1995 after the commission found that he breached ethics laws by profiting from a golf tournament whose participants included individuals who did business with the city.

Damning allegations

But Las Vegas attorney Frank Cremen, a legal adviser to the Las Vegas Ethics Commission, said the flip side is that an official can be tarnished by an alleged violation even if the charges prove false. That's what he said happened to his client, former County Commissioner Paul Christensen, when the latter was brought before the Ethics Commission in 1996 for what turned out to be state fictitious charges.

Even though the charges were dismissed, Cremen blamed them for Christensen's defeat to Lance Malone in November 1996.

"For years you could file an anonymous complaint with the commission," Cremen said. "We found that the person who complained about Paul Christensen did not exist. It was a completely bogus complaint, but Christensen had to go before the commission to deny the complaint. That's how undisciplined the whole thing was."

The commission no longer accepts anonymous complaints, another result of the 1999 revisions. The complaints must now be sworn by the individual who contacts the commission. The result is that the commission was not used as a political tool during the 2000 elections as it was in the past.

"If you look at the new law, there are sanctions against filing improper complaints," Russell said.

Questions remain about the purpose of the commission itself, however. Professor Ted Jelen, UNLV's Political Science Department chairman, said he does not think the commission has made politics "more ethical." He said lawmakers cannot keep up with the ability of public officials to circumvent ethics laws.

People dissuaded

"One of the main effects of the Ethics Commission is that it dissuades people who would otherwise seek public office from doing so," Jelen said. "A lot of people who are not necessarily unethical or sleazy don't want to expose themselves to the scrutiny of an organization like the commission."

Las Vegas attorney Richard Wright, who represents McDonald, said there is also unnecessary duplication between the state and municipal ethics commissions that also were authorized by the Legislature. McDonald went before both the Las Vegas and Nevada panel on similar charges, although the outcomes were somewhat different.

"It seems like double jeopardy," Wright said. "There's also the additional legal expense. My simple solution would be to do away with the local ethics boards."

Then there is the media. Cremen said the press tends to run stories on complaints that have been filed with the commission, even if there is no proof that the allegations are true.

"There is no law constitutionally that can be written to stop that," Cremen said. "Responsible news media have to exercise self-restraint."

But Cremen said about the only change he would make with the commission is to have it do a better job explaining why a particular complaint should go to a full hearing.

Just cause

Cremen said the commission merely has to show that there is just cause to proceed without having to explain why they believe the law may have been violated. In his defense of Kenny, Cremen asked the commission last month to clarify what she was accused of doing that violated ethics laws. But Bernhard said the full commission was not privy to information considered by the two-member review panel that suggested the case go forward.

It so happens that the commission has submitted a bill draft for the current legislative session aimed at clarifying portions of the ethics laws. But do not expect any major changes this session, Bernhard said.

"Most of them are cleanup changes where we have found slight inconsistencies in the statutes," he said.

archive