By Cy Ryan (contact)

Fri, Nov 28, 2008 (10:25 a.m.)

Sen. Warren Hardy

CARSON CITY – The state Ethics Commission cannot discipline senators and Assembly members for conduct in their official legislative business, a district judge has ruled.

District Judge Bill Maddox has ordered the Ethics Commission to abandon a scheduled Dec. 11 hearing for Sen. Warren Hardy, R-Las Vegas, who is accused of conflicts of interest in voting on two bills.

The judge agreed with attorneys for the Legislature that the separation of powers doctrine comes into play. The Senate and Assembly are the only bodies authorized to punish their members for activities connected with the legislative process.

Hardy, president of the Associated Builders and Contractors of Southern Nevada, voted on bills involving contractors during the 2005 and 2007 Legislatures.

Hardy said he followed the advice of legislative attorneys in disclosing and voting on the two bills, one involving prevailing wage and the other government contracts.

Richard Miller of Henderson, who filed the ethics complaints against Hardy, said he was “disappointed” at the ruling and found it “incredible” that the judge took that view. Miller had complained Hardy was a lobbyist for the construction industry serving in the Senate.

Miller filed multiple complaints against Hardy, but a two-member panel of the Ethics Commission found there was enough evidence to go forward on only two of them. The full commission was to consider the case on Dec. 11.

Commission Director Patty Cafferata said she did not know if the commission would appeal the ruling.

Attorneys for the Legislature argued successfully that the ethics law permits Hardy to bring “his private philosophies and perspectives regarding the construction industry to the debate over issues in the Legislature and its committees” as long as those interests are disclosed and the benefit to members of his trade association are not greater than those to others in the construction industry.

In their court petition, Legislative Counsel Brenda Erdoes, Chief Deputy Eileen O’Grady and Senior Deputy Kevin Powers said the Ethics Commission “is clearly exceeding the limits of its authority and jurisdiction because under the constitutional doctrines of separation of powers and legislative immunity, the Nevada Senate is the only governmental entity that may question or penalize Senator Hardy for any actions taken by him within the sphere of legitimate legislative activity.”

In the 2007 Legislature, the Senate Government Affairs Committee, of which Hardy was chairman, introduced SB-509 that dealt with the state’s financial administration and acquisition of property. It passed the committee and the Senate unanimously with Hardy voting for it.

But the Assembly Committee on Government Affairs amended the bill to expand the government projects on which contractors would have to pay prevailing wages. When it returned to the Senate Government Affairs Committee, there was a motion not to agree with the prevailing wage amendment. It passed 4-3 along party lines with the Democrats supporting the enlargement of the prevailing wage projects. That killed the bill.

Hardy said even if he didn’t vote, the bill would have died because there were not four votes to get it out of committee. He emphasized he was following the advice of lawyers for the Legislature. But the minutes of the committee do not show he revealed his affiliation with the contractors when he voted against the prevailing wage.

In 2005, Hardy’s committee introduced SB467. As soon as the hearing began, Hardy revealed that in his function as president of the contractors association, he worked with Ted Olivas of the city of Las Vegas in developing the bill.

That bill passed both the Senate and Assembly without a dissenting vote.

Cy Ryan may be reached at (775) 687-5032 or cy@lasvegassun.com.