Panel’s value questioned

Friday, Sept. 6, 2002 | 5:40 a.m.

WEEKEND EDITION: Sept. 8, 2002

Last month's acquittal of Las Vegas Councilman Michael Mack on charges of ethics violations has once again brought attention -- mostly unfavorable -- to the Las Vegas Ethics Review Board.

Every time the board has ruled on high-profile cases, such as those involving Mack, fellow Councilman Michael McDonald and former Councilman Frank Hawkins -- all cases that ended with board findings of ethical violations but no penalties -- critics have said the board either should be scrapped or the city's ethics codes should be rewritten.

Although thoughts vary on what should be done, nobody who has opinions on the subject thinks that the board is working well.

That fact was not lost on the Las Vegas City Council, which decided Wednesday to give the city manager's office 30 days to determine whether the board is necessary. The council also postponed reappointments of board members, including chairman Earle White Jr.

There are those who say that the board should be eliminated because it is redundant as long as the Nevada Ethics Commission exists to oversee the ethical conduct of all state, county and city elected officials and public employees.

And there are those who say that there should be a separate city ethics board, but its members should be selected differently and its powers should be radically altered.

The board's history can be traced back to the Watergate scandal that led to President Richard Nixon's resignation. States such as Nevada responded by adopting ethics laws for public officials and bureaucrats and forming commissions to enforce the legislation. The Nevada Legislature subsequently permitted cities and counties to form their own ethics panels, which Las Vegas did.

The City Council initially appointed five citizens to an ethics committee in 1992 to serve in an advisory capacity. A year later, the council adopted an ethics code and formed the ethics board to give the code teeth. But the board has constantly struggled to interpret the code. Even its author, City Attorney Brad Jerbic, once asked for clarification in a case involving a street in his neighborhood.

Confusion abounded. The board complained that it couldn't launch certain probes. A councilman who requested a hearing in front of the board was a no-show. Council members argued that the code prevented them from attending charities and political events because of a cap on gifts.

Jerbic declined repeated requests for an interview on the subject and White could not be reached for comment.

But University of Nevada, Las Vegas ethics professor Craig Walton, who believes the board doesn't work, said one reason is that there has never been a community-wide discussion on the level of ethics citizens wish public officials to uphold. Instead, ethics have been defined by the public officials who are covered by the code.

"We don't have much of a public spirit in our valley," Walton said. "There are a lot of people here who don't have roots yet. Some people came here because they thought it was lawless. We need more active citizenship. More ought to be done to seek out public opinion so we can set standards on what we want in government and where to draw the line."

There is a school of thought that the city board should simply be eliminated.

One of the board's harshest critics is Las Vegas attorney Richard Wright, who successfully defended Mack and McDonald in separate city ethics disputes that landed in court. Wright said the board should be eliminated because it is an unnecessary duplication of the Nevada Ethics Commission.

The state commission can levy fines against public officials but can't charge them with a misdemeanor, while the city board can make a misdemeanor charge but can't issue fines.

"It's needless duplication to have two ethics review boards and it leads to confusion and contradictory rulings when you have two boards that can rule on the same ethical conduct," Wright said. "In Michael McDonald's case the city found his conduct not ethical and the state found the same conduct to be ethical.

"The state appropriately applies an objective standard -- that is, would a reasonable person, given his interests, believe he would be affected by a decision? At the city level it's a subjective standard. In order to violate the city code, it's required that the public official or employee knowingly had an interest in the matter. 'Knowingly' is subjective, not objective."

Wright said the state ethics law takes into account varying degrees of a potential conflict of interest, what he termed "graduated interest."

"If something might affect a reasonable man, he's required to disclose what that is," Wright said. "But the city code has no graduated interest. In the city you either have a prohibited interest or you don't. There's no middle ground."

Even Las Vegas attorney Frank Cremen, who was appointed by the city board to prosecute McDonald, conceded he was not sold on the purpose of the board beyond its capacity to give advice to public officials.

"It's nice to have ethical guidance but I don't even know why we have a board," Cremen said. "I'm more libertarian and believe the fewer boards and commissions you have the better life is."

Others believe that the city ethics board should continue to exist as long as changes are made, such as:

Walton feels strongly that the city could do a better job selecting the board's seven members.

The ethics code permits each councilman and the mayor to appoint a citizen to a four-year term. But Walton said those selections raise the possibility that councilmen appoint friends to the board, making it difficult to render independent judgments when council members are involved in ethics disputes.

Instead, Walton said a better way would be to have the city manager select a blue ribbon panel of citizens who would solicit nominations from the public. The panel would then narrow the list down, with the council making the appointments. Walton said he believes that system would make for more independently minded board members.

"It's good to have an ethics board in the city because the state commission is a long way away," Walton said. "But I think we should have more to say about the people who are appointed to the city board. They shouldn't have ties to the council. You want people who are beyond influence. Otherwise, people won't respect the board."

Most city ethics commission members in the country are selected by their mayors and councilmen, said Robert Stern, president of the nonprofit Center for Governmental Studies in Los Angeles.

"Elected officials should do the appointing because you can then hold them responsible," Stern said. "It sounds like the board in Las Vegas is independent of the City Council because they're bringing actions against city officials."

But Stern joins Walton and a growing list of other critics who say that the Las Vegas ethics board is far from perfect.

Those critics say that if the board is to remain intact, it should be revamped to do one of the following:

Dropping penalties

Some critics, such as Walton and Wright, said they don't believe the ethics code should contain criminal provisions. They would like to eliminate a provision that makes it a misdemeanor to violate ethics laws, with the crime resulting in removal from office upon conviction in court.

Some crimes that involve ethical lapses, such as bribery, were on the books long before ethics laws existed. Bribery is a felony with prison time for convictions. But Walton and Wright said they do not believe ethics codes should contain misdemeanor provisions for violations not already covered in the state criminal code.

"I'm puzzled about the question of criminal prosecution," Walton said. "What it really is a betrayal of office. It's more a matter of citizenship than a crime. We have to go back to the code and rewrite it. You're trying to fit ethical violations in criminal law but it doesn't fit."

Wright said the city overstepped state law by allowing the ethics board to initiate criminal prosecutions, rather than simply give advisory opinions. He had planned to argue that point in court had Mack been found guilty of an alleged conflict of interest in a series of votes last year involving a car dealership.

Steve Gross, executive director of the Seattle Ethics and Elections Committee, agreed that ethics laws and criminal provisions don't mix. His committee can levy fines but Seattle's ethics code has no criminal provisions.

"The philosophy is that there is a difference between a violation of ethics and breaking criminal law," Gross said.

Las Vegas attorney John Graves Jr., who was hired by the board to prosecute Mack, said he had mixed feelings as to whether public officials should be prosecuted criminally for ethics violations. He made his feelings known on Thursday in an interview on "Face to Face with Jon Ralston" on Las Vegas ONE, a partnership of the Las Vegas Sun, Cox Communications and KLAS-TV.

"It's good that we've got politicians that would be amenable to the criminal process," Graves said. "However, it could make for rather tepid politicians in one sense. They're worried at City Hall after this prosecution that this could happen to them."

The problem, Graves said, is that the ethics board does not have proper procedures in place to review potential criminal violations.

"Before you drift into criminal court, I think you need to probably have some review procedures to make sure that you're walking on the beam before this thing gets prosecuted," he told Ralston.

Choosing prosecutors

One controversial aspect of the city code is the power it gives the board to hire a special prosector in proceedings against city officials in cases where the city attorney has a conflict of interest. The board appointed special prosecutors in the cases involving McDonald and Mack because Jerbic said he had a conflict of interest as an adviser to council members.

McDonald's case ultimately involved a civil proceeding in which no criminal charges were filed.

But the board, for the first time ever, decided in February to proceed with misdemeanor charges against Mack in a case filed in Las Vegas Municipal Court. The board charged that Mack had a conflict when he voted last year to delay and then deny plans by businessman John Staluppi Jr. to open a car dealership without the councilman disclosing that he had borrowed money from rival automobile dealer Joseph Scala.

Municipal Judge Bert Brown last month dismissed the complaint against Mack, stating that special prosecutor Graves had not proved beyond a reasonable doubt that the councilman knowingly broke the law. Mack had argued that he didn't know he still owed money to Scala.

Graves was criticized by Wright for the quality of his prosecution, including the failure to subpoena bank records that could have shown whether Mack signed checks to Scala prior to the controversial votes. Graves was also criticized for failing to get Scala to appear in court to testify.

But Graves told Ralston he did not subpoena Mack's bank accounts because "we had no clue that Michael Mack was signing his own checks." Graves based that belief on the fact that Mack's First Class Pawn & Jewelry store used certified public accountants and bookkeepers.

Graves conceded he was "astonished" when Mack assistant Hattie Baker testified in court that the councilman signed a check to Scala. He gave Wright credit for convincing the judge that the prosecution failed to produce the evidence that Mack had signed such a check.

Graves also said he could not get Scala to appear in court because Scala was in Europe. Even if he could have gotten Scala to appear, Graves said he was told by one of Scala's attorneys that he would have taken the Fifth Amendment and refused to testify unless granted immunity.

"We must have tried eight to 10 times to get him under subpoena and we could not," Graves told Ralston. "He was out of the country."

After the show, Wright said he agreed with Las Vegas Mayor Oscar Goodman, a criminal defense lawyer, who suggested after Mack's acquittal that prosecution of public officials for ethics violations be turned over to the district attorney or attorney general.

Wright said that because Graves does not prosecute crimes for a living, he does not have the experience that a full-time prosecutor has when it comes to gathering evidence and compelling witnesses to appear in criminal cases. Wright said a full-time prosecutor from the district attorney's office would have subpoenaed Mack's bank records and found a way to get Scala into court.

"Whenever someone says they would take the Fifth, that's just a lawyer posturing," Wright said. "Scala has been litigating the city over this for two years. You can't sue and then take the Fifth at the same time.

"If you make your living prosecuting crimes, you don't get caught short on evidence and witnesses that are available."

But Wright also said that he didn't believe a public prosecutor would have taken on the Mack case because there was no chance to prove that the councilman was guilty beyond a reasonable doubt. Wright based his opinion in part on Mack's testimony that he used to sign blank checks for his business. That meant it would have been possible for an accountant or bookkeeper to have completed a check to Scala without Mack knowing about it, Wright said.

The selection process can be hit or miss when it comes to special prosecutors. Cremen has considerable experience as both a special prosecutor and in representing clients before the Nevada Ethics Commission. Cremen was the special prosecutor when the state Judicial Discipline Commission removed North Las Vegas Municipal Judge Gary Davis from office in 1995 for judicial misconduct.

In contrast, Graves has concentrated in other areas of law, including employment as an administrative hearing officer in cases involving state employees.

Las Vegas attorney Kathleen England, first chairwoman of the Las Vegas ethics board, said she also agrees with Goodman when it comes to prosecuting ethics cases. She said that allowing the board to prosecute criminal cases raises constitutional issues because it is outside the judiciary.

"The suggestion that the prosecutorial function should be turned over to those who know how to do prosecutions is correct," England said. "The board serves a very important function because it brings things to light. But when you start getting into criminal prosecution you have constitutional questions such as the standard of 'beyond reasonable doubt' and facing your accusers. I don't think a lay board should be adjudicating people of crimes."

Nevada's ethics commission can petition a court to have a public official removed from office. But if the commission finds that an ethics violation also involves a possible criminal offense, the prosecution must be handled under law by a district attorney or the attorney general.

A spot check of other city commissions in the West revealed that the Las Vegas board's hiring of its own prosecutors is highly unusual.

In San Diego, Seattle and Honolulu criminal matters are referred to a public prosecutor without the board being able to select the prosecutor.

"We can only bring administrative actions," Charles Walker, executive director of the San Diego Ethics Commission, said. "If it's something I think is criminal, I can refer it to the appropriate investigative or prosecutorial agency to pursue it criminally.

"The public integrity section of our city attorney's office can enforce misdemeanors against city officials."

Los Angeles has a provision for a special prosecutor but has never used it and instead has forwarded criminal cases to a public prosecutor.

"We usually do administrative hearings where we levy fines," Barbara Freeman, spokeswoman for the Los Angeles City Ethics Commission, said. "If it rises to the level of a criminal case, we refer it to the city attorney or district attorney."

Levying fines

Stern said he has no problem with an ethics code that contains criminal penalties. But he said a major flaw in the Las Vegas code is that it does not also contain the potential for fines against public officials.

"Under your code you're either a criminal or not, and that's too bad," Stern said. "It would be good to add civil and administrative penalties as well."

Stern, former general counsel for the California Fair Political Practices Commission and co-author of that state's ethics laws, said the Las Vegas code is the only one he knows of that contains only criminal penalties for public officials. He said the advantage of a fine is that it requires only a preponderance of evidence rather than the tougher "reasonable doubt" standard of proof required in criminal law.

He also estimated that 95 percent of ethics violations committed by public officials do not rise to the level of a criminal offense, another argument for including fines as an option. A fine is also something that could be levied by the board, whereas a misdemeanor conviction requires trying a case in court, something the city has done with no success.

Stern said the irony of the Las Vegas code is that it allows for fines of up to $1,000 but only against individuals who file ethics complaints "in bad faith or for vexatious purposes."

"They're really out to get the people filing complaints," Stern said. "This code looks like it was written by a city council that didn't want fines against them but against the people who brought the complaints."

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