Where I Stand — Guest columnist Gary Peck: A fair way to screen

Thursday, Aug. 15, 2002 | 8:34 a.m.

Editor's note: In August the Where I Stand column is written by guest writers. Today's columnist is Gary Peck, executive director of the American Civil Liberties Union of Nevada.

THE NEVADA Gaming Commission, through its enforcement arm, the Gaming Control Board, has been considering changes to state gaming card regulation that are in some regards encouraging but are in others troubling. The Control Board has held hearings on the subject pursuant to a law passed last legislative session requiring consolidation of the statewide system. These proceedings have attracted the interest of the ACLU and other advocates who are determined that any new scheme be constitutional and fair.

Under current state law, anyone seeking employment in a hands-on gaming job must undergo a police background check and get a gaming card. The issues raised during the Control Board's deliberations are profound. They conjure up troubling questions involving core constitutional values and the limits of government authority to investigate peoples' backgrounds, its obligation to protect their privacy, and its ability to deny them the opportunity to work in gaming in Nevada.

The Control Board is following the Legislature's mandate by crafting revised regulations that would make administration of the gaming card system uniform and less cumbersome throughout Nevada. With these laudable goals in mind, it has sensibly sought input from law enforcement, the gaming industry, civil liberties organizations and worker rights groups to help ensure that whatever integrated scheme they adopt will best serve all affected parties. In important ways, the process has been a model of how to foster public participation in government policymaking.

We at the ACLU applaud the Gaming Commission and the Control Board for their openness and for attempting to simplify the gaming card system. Unlike the old rules, the new ones being proposed would allow gaming cards obtained in one jurisdiction to be used statewide. They also would end local law enforcement's ability to deny temporary cards to applicants who've merely been charged with disqualifying crimes but not been convicted. And they include some provisions stating that, contrary to past practices, information gathered in the application process should be used solely to administer gaming card regulations and not for other police purposes.

These changes are welcome, but there remain problems that demand attention. Concerning privacy, the regulations must include additional language clarifying precisely how local agencies and the Gaming Commission may use applicant data.

In Southern Nevada, we've learned from experience that personal information collected for limited work card purposes was not always properly handled. Instead, law enforcement co-mingled this information with other criminal history data and may have improperly used it to launch investigations. Given the possibility of this type of problem reoccurring and of agencies improperly sharing information with outsiders, it is imperative that the commission's guidelines be thoroughly spelled out and its oversight be exacting.

Thus far, the Control Board members who've addressed these matters have suggested they lack the authority to exercise the tight control we've requested. We disagree, since any local gaming card investigations would be conducted under powers delegated by the Gaming Commission and would therefore be subject to its supervision.

Relatedly, the proposed gaming card application form contains a blanket waiver exempting the commission and all other government agencies from any legal liability when personal information is misused. The consequences of malfeasance can be disastrous for applicants. Official mistakes made in good faith oughtn't be grounds for liability, but those made negligently or intentionally don't warrant the same immunity.

Perhaps the most unsettling drawback of the latest proposals is one that requires the Gaming Commission to go beyond present deliberations to consider related regulatory topics. For although the recommended rule changes would prudently limit initial local investigations to applicants' criminal histories and permit denials to temporary cards only to those with conviction records, the commission claims that applicable Nevada statutes give it sweeping authority to subsequently investigate whatever it wants and to base denials or revocations of permanent cards on anything it deems reasonable. This kind of unbridled discretion is unwise and unconstitutional.

The Gaming Commission must implement written policies defining the limits of its power, when it will be used to broaden inquiries, and exactly what criteria will be employed to withhold or revoke cards. Confining the scope of inquiry to criminal histories and prohibiting denials of temporary cards based on arrests and other irrelevant factors at the point of application would ultimately be meaningless if the agency isn't prevented from later delving into other areas of applicants' backgrounds and withholding gaming cards on virtually any grounds it likes.

In America, people are presumed innocent until proven guilty in a court of law. Neither the police, prosecutor, nor Gaming Commissioners have the ability or legitimate authority to adjudicate such matters. Nor should the commission be allowed to pry into details of applicants' backgrounds that are none of its business.

Where do the inquiries stop? Are marital infidelities, sexual orientation, and mental health status fair game? Commission and Control Board members say no. They say trust us, we're the government, and we're reasonable. Our Founding Fathers were too smart for that. They insisted on checks-and-balances limiting government's power. So should we.

We should insist that peoples' lives not be open books, and that those who haven't been proven guilty not be treated like criminals when trying to earn an honest living.