Thursday, July 14, 2005 | 10:51 a.m.
CARSON CITY -- A new state law making it tougher for public officials accused of ethics offenses to show they were not willful violations has been criticized by at least one member of the state Ethics Commission.
Commissioner George Keele of Minden on Wednesday blamed the Legislature's rush to adjournment on a situation he said puts the law on "thin ice" because it requires the accused to prove something, rather than the commission determining if the action is willful.
Keele said the commission is "setting ourselves up for a big loss" by shifting the burden of proof away from the commission and to the accused public official. He suggested public officials be given the "benefit of doubt."
His comments were made at an state Ethics Commission meeting at which its executive director, Stacy Jennings, outlined the ethic laws changed by the 2005 Legislature.
In the old law, the commission had to determine if an offense was willful before it would impose a penalty, but under the new law, the public official is presumed to have willfully violated the ethics law unless the official provides "sufficient evidence" that he or she relied on the advice of the legal counsel, was unable to obtain an opinion from the Ethics Commission and took the action that did not run counter to a prior opinion of the Ethics commission.
All three conditions must be met and proved by the public official to show the action was not willful, Jennings said.
Commissioner Caren Jenkins, who was elected chairwoman succeeding Rick Hsu, said the commission has "struggled" in determining whether a violation was willful.
"Now the burden is on the public official," she said. Hsu of Reno said the transcript of the discussion in the Legislature will have to be examined to determine how the commission will handle the new law.
Jenkins, a Carson City attorney, will succeed Hsu who has been chairman for the past 18 months. Mark Hutchison of Las Vegas was elected vice chairman, succeeding Jenkins.
Jennings, in her annual report, said the commission is not meeting the 45-day deadline in the law between the time a complaint is filed against a public official and a hearing is held by a panel of the commission to determine if there is probable cause to continue the case.
She said the average time between the filing of a complaint and the panel hearing it was 178 days in 2004.
Jennings said there were 76 requests for opinions in fiscal 2004 compared to 67 in the prior year. At the end of 2005, there were 28 requests for opinion pending.
In addition, the legal counsel for the commission was not present during the full year. She said the addition of two staff positions approved by the Legislature would help in clearing the backlog of cases and meeting the 45-day deadline.
Commissioner Tim Cashman of Las Vegas questioned if the decisions of the commission could be legally challenged because the 45-day deadline was not met. Jennings said those accused usually sign an agreement to extend it beyond the 45 days.
"Most people agree to a waiver," she said.
At the end of the meeting, a letter from Gov. Kenny Guinn was read praising Hsu'sw work as chairman. Hsu's term on the commission runs until June 30, 2008.
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