Las Vegas Review-Journal (Sunday)
New law stymies ethics panel
Measure OK’d quickly in 2015 session expands legislators’ immunity
Nevada Legislature staffers last year quietly supported a bill that helped them win a legal battle to keep the state’s Ethics Commission from investigating legislators.
The new law flew under the radar as an “emergency measure” in the final days of the 2015 session and passed with little scrutiny. Commission officials would have testified against the bill, but by the time they figured out it existed, the bill had passed — born and approved in less than 48 hours.
The bill not only appeared to commissioners as being tailor-made to torpedo their legal stance, they believe it expanded what’s known as legislative immunity, making it almost impossible for the commission to hold legislators accountable for anything.
The Ethics Commission is set up to police “public officers,” but legislators hold a special standing that grants them some immunity. Legislative immunity isn’t unique to Nevada, and the concept has been around since the 1600s. The idea is that lawmakers need to be free to make decisions without fear of political retribution.
The new law went largely unnoticed until March 2016, when The Associated Press got a 28-page rebuke in response to a records request that said the new law meant none of the Legislature’s records were public. Government watchdogs questioned why the Legislative Counsel Bureau had recommended the bill during the session’s most hectic time, when it was sure to get little attention.
The Associated Press’ request had been part of a nationwide survey to see which legislatures had exempted themselves from public records laws.
Government watchdogs saw the long letter as overkill.
“I’m appalled by the breadth of the arrogance in this response,” Barry Smith, executive director for the Nevada Press Association, told The Associated Press. “The extent of the reaction makes you wonder, ‘What do they have to hide?’”
It hasn’t been reported until now that the law gave the Legislative Counsel Bureau leverage in its legal fight with the Ethics Commission, with a judge citing the new law as part of his reasoning for ruling against the commission.
“One must question why AB 496 was brought as emergency legislation sponsored by LCB, an agency which does not usually sponsor bills,” wrote an attorney for the Ethics Commission in court filings. “Perhaps it was marshalled through to provide a greater defense to these proceedings.”
Not true, said Kevin Powers, chief litigation counsel for the Legislative Counsel Bureau.
Powers said the bureau didn’t push the bill because of the Ethics Commission case and argued the law isn’t even anything new — it simply codifies existing case law.
‘ZOMBIELAND’
It’s the latest chapter in an old Nevada story of a government enforcement mechanism, created in 1971 by the Legislature, that has been criticized since its inception as lacking teeth.
“Nevada is ‘Zombieland.’ It looks like we have lots of good laws and enforcement mechanisms, but as soon you try to actually engage with one, you get your brains eaten,” League of Women Voters President Sondra Cosgrove said. “I think people go along day by day assuming there is accountability and transparency and that the government functions per what you learn in civics class, but that’s not true.”
How does she suggest Nevada fix “Zombieland”?
“You expose the zombies,” Cosgrove said. “And you either make them alive or you double tap them.”
Cosgrove said having no Ethics Commission would be better than having one that’s essentially a fraud because it can rarely take action. A fake commission gives people a false sense of security. Lawmakers either need to kill the commission or give it some teeth, she said.
As it stands now, politicians can say the Ethics Commission investigated and they were cleared because no action was taken, when in reality the commission was simply powerless to take action.
Cosgrove pointed to a recent opinion issued by the commission after a yearlong investigation into allegations against North Las Vegas Mayor John Lee. Two longtime human resources employees accused Lee of abusing his office’s authority and hiring employees based on religious favoritism. The Ethics Commission issued an opinion saying that while it found “sufficient credible evidence” the allegations were true, narrowly written laws prevented the commission from acting.
“To me that shows frustration on the part of the ethics commissioners,” Cosgrove said. “They came out and said, ‘FYI he was wrong’ and I actually don’t think I’ve ever seen that happen.”
Lee told media outlets he had been cleared and continued to deny the allegations.
The two employees were laid off a few months after they filed formal complaints. The city has said its decision to outsource their department had nothing to do with the complaints.
In Cosgrove’s metaphor, that’s a dangerous consequence of “Zombieland” government: It can eat your brains.
Commission Executive Director Yvonne Nevarez-Goodson said she’s aware of criticism of the panel.
“I would certainly say that there have been cases that have frustrated the commission in terms of being able to find a violation or hold a public officer accountable for improper conduct,” she said.
In 2015, the Center for Public Integrity gave Nevada an F grade when it came to ethics laws, ranking it 30th in the United States.
HAMSTRUNG HISTORY
The Legislative Counsel Bureau’s legal fight with the Ethics Commission has its roots in a 2009 Nevada Supreme Court decision that limited the amount of oversight the commission could have over legislators.
The commission had received a ▶ See ETHICS, Page 25A