Columnist Jon Ralston: Mack’s constituents must decide

Friday, Oct. 26, 2001 | 4:52 a.m.

Jon Ralston hosts the public affairs program "Face to Face" on Las Vegas ONE and also publishes the Ralston Report. His column for the Sun appears on Sundays and Wednesdays. Ralston can be reached at 870-7997 or through e-mail at ralston@vegas.com

IN NEARLY ALL of the high-profile ethics cases involving Southern Nevada elected officials, the question of whether the behavior was abhorrent has had an obvious answer.

When part-time councilmen or commissioners have allowed their private interests to sway their public duties, you don't need the media or an ethics panel to decree that they behaved unethically. The official in question is either guilty of incredible stupidity or amazing venality -- or somewhere in-between. That's the easy part.

The more difficult question through the years has been what the proper punishment should be for such transgressions and whether, apropos of a second case this year involving a Las Vegas city councilman, such misdeeds should ever cause the politician to be thrown out of office.

In March District Judge Jim Mahan decided that City Councilman Michael McDonald's use of his public position to help his employer extricate himself from a debt did not rise to the level of malfeasance, which would have caused the councilman to be stripped of his elected title.

Now District Judge Sally Loehrer has ruled that McDonald's colleague, Michael Mack, may have pawned his ethical compass, but should not be thrown out of office for accepting money (about $60,000) from a city supplicant and then voting to quash a rival's car dealership application.

Loehrer's decision is both thoughtful and bizarre. It is thoughtful in that the judge accepts the weight of her responsibility and carefully considers when an elected official should be tossed from his public perch. But it is bizarre in that she strongly implies that an elected official can only be bribed if the payment is given in direct proximity to the vote -- i.e., the night before. In Mack's case, because he received the money from Courtesy mogul Joe Scala a few months before the vote, he is not guilty of malfeasance but, in Loehrer's words, "incredibly unethical" and guilty of "a lapse or even a void in judgment."

That memorable phrase should stick to Mack like a scarlet letter, forever branding him as someone who is not to be trusted, who is bereft of common sense and who forever will have his judgment, or lack thereof, questioned in all aspects of his public duties.

That is the wise part of Loehrer's decision. And clearly she was mindful of the Solomonic duty she had to perform. Her seven-page decision aptly quotes state Supreme Court Justice Pat McCarran, who wrote in 1918 of the malfeasance statute:

"The law, in my judgment, contains nothing which recommends itself to the spirit of democracy. It partakes of none of the progressive inspiration which gave rise to the historic scene at Runnymede," a reference to the English meadow upon which the seminal democratic document, the Magna Carta, was signed in the 13th Century.

Indeed, McCarran, as Loehrer realized, was dead-on. It is anti-democratic to have a law that removes the will of the people from determining their elected servant's future and reposes that authority in a judge. It is, McCarran wrote, "an extreme and extraordinary measure, intended only for extreme and extraordinary occasions."

Loehrer also cites a 1950 malfeasance case to define the word as essentially displaying corrupt, willful or evil intent, not simply "a mere error of judgment either as to the law or fact."

Then, alas, her logic collapses and is, to borrow a phrase, void of judgment. She suggests there is no malfeasance because "there is no allegation that Mack accepted money from Scala on the eve of the vote, to cause him to change his position and vote against (rival John Staluppi)."

If the judge believes the loan was tantamount to a bribe to influence Mack's vote, then why should it matter that it was given a few months before the council action? If the loan were given long ago or even before Mack was appointed to the council, there might be some argument. But the loan was not paid back yet (although the recency of the transaction actually makes that irrelevant), so the indebtedness -- literally and perhaps figuratively -- still existed.

Even if the judge reached the right conclusion, she did it for the wrong reasons. The malfeasance statute may be an anachronism; but if it's there, either use it or lose it.

But perhaps Loehrer's decision makes a greater point, whether she intended it to or not: It's not up to a judge to decide whether an elected official who is void of judgment should remain in office. Perhaps, she is saying, that's up to his constituents.

Mack's problems are far from over -- his convenient amnesia, his serial dissembling, his inability to tell a credible or consistent story have raised questions that only a law enforcement agency or an ethics tribunal (a week from Monday) and an aggressive attorney (such as Staluppi advocate Tony Sgro) can answer.

For the councilman, the real question is whether the voters will remember his void in judgment until 2005, when he is up for re-election, or whether the void will result in another lapse or two before the people have their say.