Commissioners play it safe

Sunday, May 28, 2006 | 7:38 a.m.

Clark County commissioners have been playing it safe on ethical issues ever since news broke of the G-Sting political corruption case.

But some say there's such a thing as playing it too safe.

"I think we've all been somewhat cautious about abstaining, but we shouldn't take that too far because we have an obligation to vote," Commissioner Bruce Woodbury said.

After a grand jury indicted former Commissioners Lance Malone, Erin Kenny, Dario Herrera and Mary Kincaid-Chauncey, the number of disclosures and abstentions due to conflicts of interest shot up, said Mary-Ann Miller, one of the deputy district attorneys who advises commissioners on legal issues.

But the past two weeks have seen a slow creep away from caution, less than a month after Herrera and Kincaid-Chauncey were convicted on political corruption charges. (Kenny has accepted a plea deal, and Malone is to be tried later this year.)

Commissioners have expressed concerns that too much caution and too many abstentions might be slighting voters by preventing commissioners from representing their constituents. As a result, they've started complaining that some ethical restrictions are too tight, and some are asking their legal counsel to review whether they need to abstain as often as they have in the past.

The issue came to a head last week, when the district attorney's office recommended that Commissioner Lynette Boggs McDonald abstain from voting on a routine zoning item.

Boggs McDonald is a senior executive and board member of Keep Memory Alive, the foundation for the Lou Ruvo Alzheimer's Institute.

Keep Memory Alive had hired engineering firm GC Wallace for some construction work.

Because GC Wallace also works for a developer who had a zoning issue before commissioners, the district attorney's office advised her to abstain.

She did, but the move raised protests from her colleagues, who called the restriction absurd.

"If I have the same barber as the (zoning) applicant, do I have to abstain?" Woodbury said sarcastically.

Picking up a bottle of water, Commissioner Tom Collins said: "If this guy is drinking Geyser Water and I'm drinking Geyser Water, then I better abstain? We need a better legal opinion here or something. I mean this is ridiculous."

Commissioners asked Deputy District Attorney Rob Warhola to review the advice that Boggs McDonald received.

"Unless I am missing something, I think that is being overly restrictive by a long shot," Woodbury said.

He and Commission Chairman Rory Reid have abstained scores of times, mostly because their law firms often work with businesses that come before the commission. Overall, commissioners have left voters in their district without a voice more than 100 times so far this year, though most of those were on routine agenda items. Collins and Myrna Williams are the only commissioners who have not abstained this year, and the other three abstained only a handful of times.

In the case involving Boggs McDonald, commissioners asked the district attorney's office to review the advice that it gave her. Miller, the attorney who advised Boggs McDonald, said after reviewing the facts, she might have told Boggs McDonald she could vote.

"To be fair to them, that is probably the fault of our office. We try to err on the side of caution," she said of abstentions motivated by the aura of precaution spawned by the allegations that the former commissioners had taken bribes from developers and strip club owners.

In a reaction to that overly cautious tendency toward abstaining, Woodbury asked the district attorney's office last week to review whether he could vote on several routine liquor and gaming licensing issues on which he had abstained in past meetings.

Although his law firm has a relationship with some of the companies seeking licenses, the district attorney's office said he could vote on the issues as long as he disclosed the relationship.

He did so Tuesday, disclosing without abstaining on 11 items.

"In my opinion there shouldn't be the need for an abstention unless there is direct financial incentive involved," Woodbury said. "You should let the voters decide."

Some commissioners say the board has lost sight of the fact that there are two thresholds in state ethics law - one for disclosing potential conflicts of interest and another for abstaining. After disclosing a potential conflict, state law allows commissioners to vote on an item as long as the potential conflict would not sway their "independence of judgment" in the eyes of a reasonable person.

Commissioners, however, rarely disclose a potential conflict without abstaining.

"The question is whether this caution is paralyzing timidity," said Craig Walton, president of the Nevada Center for Public Ethics and professor emeritus at UNLV.

He believes commissioners might fear using their own judgment about whether they need to abstain after disclosing a conflict.

"They want to exercise their own best judgment, but they seem to be scared that might get them into trouble," Walton said.

That dilemma causes a constant back and forth about the issue of abstaining, Miller said, and ideally results in an appropriate balance.

"They sometimes get criticized if they don't abstain. Other times they get criticized if they do abstain," she said. "That's why you'll see some changing along the way. That's the way it's supposed to work."