Lax ethical oversight remains the norm for lawmakers
Who polices the ethical behavior of Nevada lawmakers?
It isn’t the state Ethics Commission, which is charged with overseeing public officers and employees. Unlike the judicial branch, there’s no version of the Commission on Judicial Discipline overseeing the behavior of lawmakers.
The primary body in charge of overseeing ethical conduct of the 63 members of the Nevada Legislature are two low-profile committees on ethics made up of legislators and public members.
And outside of one high-profile incident in 2013 that saw the expulsion of Democratic Assemblyman Steven Brooks, neither the Assembly nor Senate Committees on Ethics appear to have met since at least 2009.
How legislators got to this point is attributable to a number of factors, ranging from constitutional separation of power issues to the inherent part-time nature of the Legislature. But as with the Open Meeting Law and public records, ethical oversight is another area where the Legislature holds itself to a lower standard than what is required in other branches of government.
A sea change in 2009
Individual committees specifically focused on ethics didn’t exist until the 2000s, with the power of overseeing “alleged breaches of ethics and conflicts of interest” vested in the separate standing committees on legislative operations and elections of both legislative houses until separate ethics committees were formed in 2005 in the Assembly and 2009 in the state Senate.
These committees formed a duplicative role with the state Ethics Commission, which in 1985 was formed by combining two individual entities overseeing the executive and legislative branches of government. The commission, made up of eight members equally appointed by the Legislature and the governor, had jurisdiction over both branches of government.
But that changed in 2009, when the Nevada Supreme Court ruled that that lawmakers couldn’t give up the authority to discipline and police themselves to any other branch of government — including the Ethics Commission.
The case was brought by former state Sen. Warren Hardy and legislative lawyers against the commission after it began the process of investigating a conflict of interest complaint filed against him alleging his votes during the 2007 session conflicted with his position as president of the Las Vegas Associated Builders and Contractors.
In the ruling, the court found the commission to be technically nested within the executive branch, meaning it was prohibited from seeking disciplinary action against a legislator related to any “core legislative function,” which includes voting and sponsoring bills. Nevada’s Constitution specifically states that each house of the Legislature “may punish its members for disorderly conduct.”
“Because the Commission is part of the executive branch, any delegation to the Commission by the Legislature of the power to discipline its members with respect to such core legislative functions is an unconstitutional delegation of power in violation of the separation of powers provision of the Nevada Constitution,” the court wrote in its ruling.
Determining what is and isn’t a “core legislative function” has been a constant source of frustration for the commission since the ruling, Commission Director Yvonne Nevarez-Goodson said. The court defined “core legislative functions” to include voting and conflict of interest disclosures on votes, but it didn’t address the entire breadth of what lawmakers do in their capacity as elected officials and leaves some grey area around whether or not the commission can discipline a lawmaker for ethical violations not related to “core legislative functions” such as misuse of office.
Prior to the 2009 decision, the commission had addressed at least 19 cases involving members of the Legislature. Nevarez-Goodson said that in her seven years with the commission, only a handful of complaints against legislators have been submitted, with most dismissed for lack of jurisdiction.
Complicating things further, Nevada lawmakers approved a last-minute measure (AB496) in 2015 extending immunity to legislators for any actions taken “within the sphere of legitimate legislative activity.” While legislative lawyers said the bill simply put existing case law into state law, critics called the legislation “overkill.”
Combined, those two factors mean the state Ethics Commission essentially has its hands tied in regard to legislative oversight, as any disciplinary or investigative action taken against a lawmaker can immediately be challenged.
“I don’t really know how to tackle the perception that the commission has no teeth,” Nevarez-Goodson said. “Ultimately the Commission interprets and enforces the state policy that’s set by the legislature.”
Like other legislative committees, the makeup and operating procedures of the ethics panels are detailed in the standing rules of the Senate and the Assembly approved by lawmakers on the first day of the session. Make-up of the committees is slightly different in each house — seven in the Senate, six in the Assembly —with the committees roughly made up of equal parts legislators and civilian members.
Both committees are vested with the power to oversee complaints filed against individual legislators and to provide advisory opinions if a legislator requests more information on a potential ethical violation or conflict of interest, though legislators typically turn to the Legislative Counsel Bureau for advice.
In general, complaints are submitted to the secretary of either the Assembly or Senate, and proceedings dealing with “character, alleged misconduct, professional competence or physical or mental health of any person by the Committee on matters of ethics or conflicts of interest” are required to be confidential unless the legislator in question decides to disclose the meeting.
A new wrinkle is that both committees are, as of 2017, specifically granted the ability to meet between sessions, meaning legislators will be subject to ethical oversight for more than just the 120-day session.
However, outside of the very high-profile case in 2013 involving the expulsion of former Assemblyman Brooks, it doesn’t appear that either committee has even met since 2009. Former Assembly Speaker John Hambrick said the Assembly committee didn’t receive any complaints during the 2015 session, and no committee appointments were made on the Senate side. (Then-Majority Leader Michael Roberson said he would have made appointments if a complaint had been filed.)
Assembly Speaker Jason Frierson and Senate Majority Leader Aaron Ford said they wanted to take the committees and their duties more seriously this session and that self-policing among legislators can be beneficial to the process.
“If somebody says, ‘You don’t understand what we have to go through,’ well, we can,” Frierson said. “And so we have an understanding of what they go through, and what the requirements are, and I think because we’re protective of the institution, we can judge our peers in a way, from that lens, unlike anybody else.”
Ford added that while partisanship was a concern, he wasn’t sure there was a way around it especially given the very real separation of powers concern.
Nevarez-Goodson said that the Ethics Commission was concerned with some of the committee processes, saying that it fell short of the established investigatory process used by the Commission and wouldn’t be subject to open meeting or public record laws that apply to the Commission.
“I personally and the commission have raised similar concerns about the level of transparency or lack thereof, what it perceives to be in a process in Standing Rule 23,” she said, referring to rule governing the committee. “We’ve never seen it implemented or engaged, so we wouldn’t typically know really, but I think it’s back to that issue about transparency and holding government officials accountable.”
Former Republican Assemblyman David Gardner applied and was appointed to the committee by legislative leadership but was unaware that he had actually been appointed to it until called by a reporter.
He said that he was still in the process of learning about the process of the committee, but it was difficult because of the lack of details in the rules.
“It’s not very clear because all they have going for it are the rules,” he said. “So I think it’s going to be one of those things where the leadership in the Assembly and the leadership in the Senate will create those additional rules and make a change to the standing rules, or we’ll just kind of slog through it, trying to create procedures and create precedence.”
A possible change
Nevada Gov. Brian Sandoval’s office is attempting to clarify the overlapping and at times confusing oversight level the Ethics Commission has over state lawmakers in the form of SB36.
The bill would entirely remove the Legislature from any oversight provided by the Commission on all matters, including those outside of “core legislative functions,” and would remove four Commission members appointed by lawmakers, making all the appointments the responsibility of the governor.
Democratic Sen. Nicole Cannizzaro, who chairs the committee in which the bill was heard, said she hadn’t made up her mind about the bill but had some initial, unaddressed concerns.
“I’m not entirely thrilled with the idea of taking the legislators completely out of the Ethics Commission,” Cannizzaro said. “Obviously it raises some concerns about being able to address the ethics concerns.”
Nevarez-Goodson said the commission was neutral on the bill, in part because half of the eight members are appointed by the Legislature. She said she appreciated the attempts at clarification, as the current system resulted in unclear standards that typically end up in court.
“In my view I would just like there to be more clear lines, and so certainly the legislative branch feels that they have created those clear lines through codification, but nevertheless it’s continuing to result in litigation, so it must not be all that clear if these questions continue to arise,” she said.
Current Committee Rosters:
Senator David Parks (Chair)
Senator Mo Denis (Vice-Chair)
Senator James Settlemeyer
Karl Riley (Majority Leader Appointment)
Shaun Mollica (Majority Leader Appointment)
Brandon Taylor (Minority Leader Appointment)
The final appointee will be chosen by the other members of the committee pursuant to Rule No 23 of the Senate Standing Rules.
Assemblyman Jason Frierson
Assemblywoman Amber Joiner
Assemblywoman Jill Tolles