Posted by: Patricia Salkin | September 30, 2010

Following Vote in Zoning Matter Nevada Supreme Court Finds State Ethics Statute Overbroad

Carrigan was elected three times to the Sparks City Council. In each election, his friend Carlos Vasquez served as his campaign manager. Vasquez also worked as a consultant for the Red Hawk Land Company. Red Hawk Land Company submitted a land zoning proposal to build a casino. Carrigan, aware of a possible conflict of interest since he had a close personal and professional relationship with Vasquez,  sought the advice of the city attorney. The city attorney said that Carrigan should disclose his relationship, but that it would be permissible for Carrigan to vote. Carrigan followed the advice of the attorney and declared his personal involvement with Vasquez before voting on the proposal.

Shortly after Carrigan voted, the Nevada Commission on Ethics launched an investigation. The commission censured Carrigan under Nevada’s ethics law, NRS 281A.420(2) for failing to abstain from voting. The statute enumerates prohibited relationships by public officials, and included a catch-all phrase prohibiting “commitments and relationships that, while they may not fall squarely within those enumerated in [the statute], are substantially similar to those enumerated categories because the independence of judgment may be equally affected by the commitment or relationship.” Carrigan sought judicial review to overturn the Commission’s decision. The complaint alleged that the statute violated his free speech voting right, and that the statute was unconstitutional for vagueness and overbreadth.

The Court held that voting by public officials is protected as free speech by the First Amendment, because it is a core legislative function that serves an important role in political speech. The Court then had to choose the appropriate level of scrutiny for the statute: choosing either to apply the more lenient scrutiny for regulation of speech by government employees, or to apply strict scrutiny that applies to general regulation of speech. The Court reasoned that since Carrigan was an elected official, the ‘employer’ was the public at large, and not the state government of Nevada. Therefore, the Court chose to apply the strict scrutiny standard.

The Court, applying strict scrutiny, asked whether the statute “furthers a compelling interest and is narrowly tailored.” The Court held that the statute served a compelling state interest by promoting integrity in its officers. However, it held that the statute was not narrowly tailored enough, since the phrases “commitment in a private capacity” and “substantially similar” were overbroad. Thus the statute was overbroad in the context of strict scrutiny analysis, and, therefore, the ethics statute violated the First Amendment.

Carrigan v. Commission on Ethics of the State of Nevada, 2010 WL 2977390 (Nev.7/29/2010)

The opinion can be accessed at: http://www.nevadajudiciary.us/images/advanceopinions/126nevadvopno28.pdf


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