Posted by: Patricia Salkin | February 11, 2014

NV Court Affirms United States Supreme Court Decision Holding Councilmember’s Vote on Zoning Permit Does Not Constitute Protected Speech Under First Amendment

The U.S. Supreme Court reversed and remanded this case back to the Nevada Supreme Court after finding that the an act of voting by an elected official did not constitute protected speech. The Supreme Court reversed the Nevada court’s holding that the “First Amendment overbreadth doctrine invalidated the conflict-of-interest recusal provision in Nevada’s Ethics in Government Law.” On remand, the Sparks City Councilman, Michael Carrigan, argued that the recusal provision was unconstitutionally vague in violation of the Fifth and Fourteenth Amendment Due Process Clause, and it unconstitutionally burdened his, and other elected officials, freedom of association right under the First Amendment.

The Ethics Law at issue states, in relevant part, that a public officer is prohibited “from voting on matters as to which they have a conflict of interest.” The standard to be applied is that of a reasonable person. And if a public officer were to find himself in a situation with a potential conflict of interest then the Ethics Law provides for “an advisory opinion option.” This option allows for the Ethics Commission to make a confidential determination regarding a potential conflict of interest, where such decision is “final and authoritative.” The Ethics Law does, however, draw a distinction between a public officer’s willful violations versus nonwillful violations. Essentially, it gives the Commission the option to impose sanctions if it is a willful violation, but requires disclosure to either the Attorney General or District Attorney if the violation were determined to be a crime. This provision defines willful violation as an action that the public officer “knew or reasonably should have known” violated the Ethics Law.

“The Ethics Commission [had] censured Sparks City Councilman Michael Carrigan for voting to approve the Lazy 8 hotel/casino project despite a disqualifying conflict of interest.” Carrigan’s friend and campaign manager, Carlos Vasquez, managed Carrigan’s reelection campaign for free and placed campaign ads at cost; this was the third time Vasquez was managing a campaign for Carrigan. Although Vasquez was managing Carrigan’s campaign for free, he was receiving a $10,000 per month retainer from the Lazy 8’s principals. “Vazquez openly lobbied the Sparks City Council to approve the Lazy 8 project and testified before the body as a paid consultant.” A hearing was conducted after several complaints were made to the Commission about Carrigan’s conflict of interest with the Lazy 8 project. At the hearing, the Commission found that Vasquez was indeed a close personal friend of Carrigan’s and that a substantial business relationship existed between the two. Thus, the Commission found that “a reasonable person would undoubtedly have such strong loyalties to this close friend, confidant and campaign manager as to materially affect the reasonable person’s independence of judgment on the Lazy 8 hotel/casino project.” Carrigan attempted to defend his actions stating that he advised the City attorney on the matter, and the attorney stated that because Carrigan would not gain a financial benefit or loss from the project that there was no conflict of interest. However, Carrigan admitted he was in fact aware that he could have asked the Commission to address the matter and knowingly did not do so. While the Commission found that Carrigan did violate the Ethics Law for failure to abstain from voting, it found that it was not willful and did not impose a penalty.

On remand, the Nevada court first addressed Carrigan’s claims that the Ethics Law was void for vagueness. “A law may be struck down as impermissibly vague for either of two independent reasons: (1) if it fails to provide a person of ordinary intelligence fair notice of what is prohibited; or (2) if it is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Carrigan argued that the section which “requir[ed] recusal for relationships ‘substantially similar’” to those enumerated in the statute was too vague. The court disagreed. The court looked to the legislative history of the Ethics Law, such as the testimony given at the legislative session, and the language structure of the statute itself, and found that the relationship between Vasquez and Carrigan was one of the types of relationships the statute was intended to apply to. Carrigan further argued “that he did not have fair notice that he risked censure [under the Ethics Law] if he voted on the Lazy 8 project,” despite his relationship with Vazquez. The court responded stating that where such an administrative system is in place, such as the advisory opinion of the Commission, that that administrative shall govern the case. The court found that Carrigan did have fair notice of the possibility of censure and that he was aware of the statute, and he cannot claim he lacked fair notice merely because he received mistaken legal advice.

The court then addressed Carrigan’s claim that the Ethics Law placed a burden on the freedom of association rights of himself, other elected officials and their supporters. The court found Carrigan’s argument to be an afterthought and unpersuasive. The court analogized Carrigan’s relationship with Vazquez to Carrigan’s relationship with his wife if she had been in the same position. Under those circumstances Carrigan would also have to recuse himself, and the court found it no different with regard to Vazquez. Thus, the Ethics Law did not penalize the freedom of association of any of the parties or their supporters, and the court also found that their was greater importance in a public officer avoiding a conflict of interest than the possible “scant” burden of Carrigan’s associational rights. The court affirmed the decision of the United States Supreme Court.

Carrigan v Commission on Ethics of the State of Nevada, 313 P.3d 880 (NV 11/27/2013)

This opinion can be accessed at:

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