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New year, same trouble: Another last-minute vote pushed by Fiore being questioned

John L. Smith
John L. Smith
Opinion
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Michele Fiore’s rushed exit from the Las Vegas City Council late last year continues to generate trouble as she settles into her new duties as Justice of the Peace in Pahrump.

Just how much trouble remains to be seen.

Former Councilwoman Fiore finds herself on the receiving end of more accusations of improper voting stemming from a Nov. 16 council meeting in which she helped ram through three contentious development items on her way out the door at a time – by her own admission – that she no longer resided in the city where she was elected. That, her growing list of jilted constituents argues, was a clear violation of the Las Vegas City Charter’s residency requirements for members of the council and mayor.

An angry group of neighbors residing near a proposed Green Valley Grocery convenience store and gas station recently railed against the validity of Fiore’s vote in a 4-3 decision in the November meeting.

Now former Nevada legislator and Clark County Commissioner Chris Giunchigliani is speaking out and questioning the legality of Fiore’s support of a proposed tavern located on State Route 157, the heavily traveled two-lane artery leading to upper Kyle Canyon at Mount Charleston. Giunchigliani has kept a home in Kyle Canyon for decades, and has joined residents who have expressed safety concerns about the project. It passed unanimously with Fiore playing fullback.

“We’ve been fighting it since last summer, and on Nov. 16th they voted 7-0 for it,” Giunchigliani says. She has told her Kyle allies, ‘She vacated the seat, so everything she did that day they should have to redo. Then we could at least have one more bite at the apple on the approval part of it.‘ “That was my impetus for filing the complaint. It just seemed like people were brushing it off.”

That’s because they were.

Brush off the outspoken Giunchigliani at your own peril. During her nearly three decades in elected office, she served as chairwoman of the Elections, Procedures and Ethics Committee i in the Assembly and crafted a section of the Nevada Revised Statutes that defines residency for candidates and elected officials. Although she’s a lifelong progressive Democrat, and Fiore is an unabashed Trump Republican, the legal wording is nonpartisan.

“In fact,” she says, “Senator (Bill) Raggio helped me with that language to make it clear that you couldn’t just move into a place, or rent an apartment and pretend that you were a resident for the purposes of running for office or maintaining your office.”

Recent Nevada political history includes several instances of candidates using a false address to file for office in one area while living in another in violation of the law’s 30-day residency requirement. It’s something that Fiore may have violated when she told the Nye County Commission that she was hanging her hat in Pahrump. The commission voted unanimously to appoint her to the vacant judgeship.

That decision has also been the subject of a complaint by another applicant for the JP’s job, but Nye County District Attorney Brian Kunzi recently said Fiore’s residency qualified for the appointment.

At city hall, City Attorney Bryan Scott’s office has also taken a pass on the timing of Fiore’s exit and the potentially problematic votes she cast.

Will Giunchigliani’s challenge fall short as well?

She admits to being at something of a loss when it comes to determining the proper legal venue given the complete lack of interest from Las Vegas and Nye County governments. From the look of her letter, she’s taking no chances by hitting the mailboxes of City Attorney Scott, U.S. Attorney and former Assembly Speaker Jason Frierson, and state Attorney General Aaron Ford with a cc to Secretary of State Cisco Aguilar for good measure.

She might be winging it, but look at it this way: If Fiore’s move was so solid, why didn’t those in authority clear their throats and explain that to angry constituents when the controversy first arose? That might have gone a long way to clearing up any confusion – presuming those irate taxpayers were laboring under a false impression.

“I don’t know who has what jurisdiction over some of this stuff,” Giunchigliani says, “but maybe more eyes might be better than none. … I just think her actions send the wrong message to people. We have to maintain integrity in our elections and that includes campaign financing. That includes how you vote, that includes how you decide your residency. It seems that Michele always, somehow, slides through,”

She insists she’s not grinding a political ax.

“This is not personal,” she says. “She and I talk. We have conversations periodically. But when you’re a public servant, you should treat that office with respect. That means, just because you can doesn’t mean you should.”

At a time of widespread election denialism and dark money laundering in campaigns, such enlightened talk sounds almost quaint.

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Transcript of Giunchigliani’s letter:

January 19, 2023

City of Las Vegas

City Attorney, Bryan Scott

495 S Main St, LV, NV 89101

US Attorney Office

Jason Frierson

501 LV Blvd. So. #1100

LV, NV 89101

NV Attorney General office

Aaron Ford

555 E Washington Ave. #3900

LV, NV 89101

Dear Sirs,

I am writing to request that a complaint be opened and a determination made that would void the votes and agenda items approved at the November 16, 2022, City Council meeting. Former Councilwoman Fiore stated publicly and in writing that she vacated her district and therefore her seat on Nov. 15, 2022. Therefore, all votes taken that day were illegal and must be rescheduled for public hearings.

Ms. Fiore, by her own admission stated the following, “ On December 20, 2022 in a public hearing at the Nye County Commission meeting Michele Fiore in her role as an applicant to the open Justice of the Peace seat testified that she was a resident of Nye County on “November 14 or 15th”. (https://nyecounty.granicus.com/player/clip/1748?view_id=4&redirect=true&h=783e3168686de52d7c 5003bc893a831c – time stamp 6:26:40).

In order to be a “qualified electorate” for this position, she had to be a Resident of Nye County for 30 days as she tried to manipulate the process to qualify for appointment to Nye County Justice of the peace.

This admission and public confirmation of her Residency simultaneously disqualified her to be a City Councilwoman for Ward 6. According to the following: (https://www.leg.state.nv.us/CITY CHARTERS which states:

CHAPTER 517, STATUTES OF NEVADA 1983

Sec. 2.020 Mayor and Council Members: Qualifications; terms of office; salary.

1. The Mayor must be a qualified elector who has resided within the territory which is established by the boundaries of the City for a period of not less than 30 days immediately before the last day for filing a declaration of candidacy for that office and be elected by the registered voters of the City at large.

2. Each Council Member must be a qualified elector who has resided within the ward which he or she represents for a period of not less than 30 days immediately before the last day for filing a declaration of candidacy for his or her office and be elected by the registered voters of that ward.

3. The Mayor or any Council Member automatically forfeits the remainder of his or her term of office and that office becomes vacant if he or she ceases to be a resident of the City or of the ward which he or she represents, as the case may be.

4. The respective salaries of the Mayor and Council Members must be fixed by ordinance. (Ch. 517, Stats. 1983 p. 1394)

Number 3 of the Las Vegas City Charter states, “The Mayor or any Council Member automatically forfeits the remainder of his or her term of office and that office becomes vacant if he or she ceases to be a resident of the City or of the ward which he or she represents, as the case may be. As a result, at the City of Las Vegas City Council meeting held November 16, 2022 Michele Fiore appeared as a de facto representative of Ward 6.

Subsection 4, clearly states she intentionally vacated her seat and never disclosed this fact during the Nov. 16, 2022 Council meeting. I am also including citations of several statutes that also outline one’s intent for residency. NRS 281.050 clearly states that the office is vacated. While some of the penalties address the issue of filing a declaration of candidacy, the definitions of residency and knowingly and constructively make it clear that Ms. Fiore intended to vacate her seat as a Las Vegas Councilwoman, district 6, prior to the November 16, Council meeting.

Therefore, the former councilwoman lied about residing in her elected seat and those votes from Nov. 16, 2022 must be voided and done over.

My letter wasn’t intended to exactly speak to whether she even qualified for appointment in Nye County but I felt it necessary to comment since the issues are intertwined. The same laws should be applied by the Nye county attorney and your offices. She vacated her Clark County seat on, as she and her attorney stated, “on Nov. 14 or 15 th, “ but neither date would make her eligible for appointment. She missed the filing timeline and the 30 days of residency.

      NRS 293.1755  Residency requirements for candidates; unlawful for candidates to make certain false statements; certain offices excepted from residency requirements.

      1.  In addition to any other requirement provided by law, no person may be a candidate for any office unless, for at least the 30 days immediately preceding the date of the close of filing of declarations of candidacy for the office which the person seeks, the person has, in accordance with NRS 281.050, actually, as opposed to constructively, resided in the State, district, county, township or other area prescribed by law to which the office pertains and, if elected, over which he or she will have jurisdiction or will represent.

      2.  Any person who knowingly and willfully files a declaration of candidacy which contains a false statement regarding the person’s residency in violation of this section is guilty of a gross misdemeanor.

      3.  The provisions of this section do not apply to candidates for:

      (a) Any federal office.

      (b) The office of district attorney.

      (Added to NRS by 1975, 617; A 1983, 11031989, 21611997, 34471999, 21512001, 6732017, 32962019, 3374)

NRS 281.050  Residence for purposes of eligibility for office is actual residence; effect of temporary absence; vacancy in candidacy upon moving actual residence; preelection actions challenging actual residence; legal standards and evidence for determining actual residence.

      1.  The residence of a person with reference to his or her eligibility to any office is the person’s actual residence within the State, county, district, ward, subdistrict or any other unit prescribed by law, as the case may be, during all the period for which residence is claimed by the person.

      2.  Except as otherwise provided in subsections 3 and 4, if any person absents himself or herself from the jurisdiction of that person’s actual residence with the intention in good faith to return without delay and continue such actual residence, the period of absence must not be considered in determining the question of residence.

      3.  If a person who has filed a declaration of candidacy for any elective office moves the person’s actual residence out of the State, county, district, ward, subdistrict or any other unit prescribed by law, as the case may be, in which the person is required actually, as opposed to constructively, to reside in order for the person to be eligible to the office, a vacancy is created thereby and the appropriate action for filling the vacancy must be taken.

      4.  Once a person’s actual residence is fixed, the person shall be deemed to have moved the person’s actual residence for the purposes of this section if:

      (a) The person has acted affirmatively and has actually removed himself or herself from the place of permanent habitation where the person actually resided and was legally domiciled;

      (b) The person has an intention to abandon the place of permanent habitation where the person actually resided and was legally domiciled; and

      (c) The person has an intention to remain in another place of permanent habitation where the person actually resides and is legally domiciled.

      5.  Except as otherwise provided in this subsection and NRS 293.1265, the district court has jurisdiction to determine the question of residence in any preelection action for declaratory judgment brought against a person who has filed a declaration of candidacy for any elective office. If the question of residence relates to whether an incumbent meets any qualification concerning residence required for the term of office in which the incumbent is presently serving, the district court does not have jurisdiction to determine the question of residence in an action for declaratory judgment brought by a person pursuant to this section but has jurisdiction to determine the question of residence only in an action to declare the office vacant that is authorized by NRS 283.040 and brought by the Attorney General or the appropriate district attorney pursuant to that section.

      6.  Except as otherwise provided in NRS 293.1265, if in any preelection action for declaratory judgment, the district court finds that a person who has filed a declaration of candidacy for any elective office fails to meet any qualification concerning residence required for the office pursuant to the Constitution or laws of this State, the person is subject to the provisions of NRS 293.2045.

      7.  For the purposes of this section, in determining whether a place of permanent habitation is the place where a person actually resides and is legally domiciled:

      (a) It is the public policy of this State to avoid sham residences and to ensure that the person actually, as opposed to constructively, resides in the area prescribed by law for the office so the person has an actual connection with the constituents who reside in the area and has particular knowledge of their concerns.

      (b) The person may have more than one residence but only one legal domicile, and the person’s legal domicile requires both the fact of actual living in the place and the intention to remain there as a permanent residence. If the person temporarily leaves the person’s legal domicile, or leaves for a particular purpose, and does not take up a permanent residence in another place, then the person’s legal domicile has not changed. Once the person’s legal domicile is fixed, the fact of actual living in another place, the intention to remain in the other place and the intention to abandon the former legal domicile must all exist before the person’s legal domicile can change.

      (c) Evidence of the person’s legal domicile includes, without limitation:

             (1) The place where the person lives the majority of the time and the length of time the person has lived in that place.

             (2) The place where the person lives with the person’s spouse or domestic partner, if any.

             (3) The place where the person lives with the person’s children, dependents or relatives, if any.

             (4) The place where the person lives with any other individual whose relationship with the person is substantially similar to a relationship with a spouse, domestic partner, child, dependent or relative.

             (5) The place where the person’s dogs, cats or other pets, if any, live.

             (6) The place listed as the person’s residential address on the voter registration card, as defined in NRS 293.1205, issued to the person.

            (7) The place listed as the person’s residential address on any driver’s license or identification card issued to the person by the Department of Motor Vehicles, any passport or military identification card issued to the person by the United States or any other form of identification issued to the person by a governmental agency.

             (8) The place listed as the person’s residential address on any registration for a motor vehicle issued to the person by the Department of Motor Vehicles or any registration for another type of vehicle or mode of transportation, including, without limitation, any aircraft, vessels or watercraft, issued to the person by a governmental agency.

             (9) The place listed as the person’s residential address on any applications for issuance or renewal of any license, certificate, registration, permit or similar type of authorization issued to the person by a governmental agency which has the authority to regulate an occupation or profession.

             (10) The place listed as the person’s residential address on any document which the person is authorized or required by law to file or record with a governmental agency, including, without limitation, any deed, declaration of homestead or other record of real or personal property, any applications for services, privileges or benefits or any tax documents, forms or returns, but excluding the person’s declaration of candidacy.

             (11) The place listed as the person’s residential address on any type of check, payment, benefit or reimbursement issued to the person by a governmental agency or by any type of company that provides insurance, workers’ compensation, health care or medical benefits or any self-insured employer or third-party administrator.

             (12) The place listed as the person’s residential address on the person’s paycheck, paystub or employment records.

             (13) The place listed as the person’s residential address on the person’s bank statements, insurance statements, mortgage statements, loan statements, financial accounts, credit card accounts, utility accounts or other billing statements or accounts.

             (14) The place where the person receives mail or deliveries from the United States Postal Service or commercial carriers.

      (d) The evidence listed in paragraph (c) is intended to be illustrative and is not intended to be exhaustive or exclusive. The presence or absence of any particular type of evidence listed in paragraph (c) is not, by itself, determinative of the person’s legal domicile, but such a determination must be based upon all the facts and circumstances of the person’s particular case.

      8.  As used in this section:

      (a) “Actual residence” means the place of permanent habitation where a person actually resides and is legally domiciled. If the person maintains more than one place of permanent habitation, the place the person declares to be the person’s principal permanent habitation when filing a declaration of candidacy for any elective office must be the place where the person actually resides and is legally domiciled in order for the person to be eligible to the office.

      (b) “Declaration of candidacy” has the meaning ascribed to it in NRS 293.0455.

      [Part 1:158:1911; RL § 3609; NCL § 6405]—(NRS A 1971, 4331975, 6161999, 21702017, 33072019, 34164127)

      NRS 281.055  Prohibition against filing for or holding more than one elective office at same time; exceptions.

      1.  Except as otherwise provided in subsection 2, no person may:

      (a) File nomination papers for more than one elective office at any election.

      (b) Hold more than one elective office at the same time.

      2.  The provisions of subsection 1 shall not be construed to prevent any person from filing nomination papers for or holding an elective office of any special district (other than a school district), such as an irrigation district, a local or general improvement district, a soil conservation district or a fire protection district, and at the same time filing nomination papers for or holding an elective office of the State, or any political subdivision or municipal corporation thereof.

      (Added to NRS by 1961, 299; A 1965, 169)

I am requesting that this matter be given importance and that you take appropriate action legally and criminally if deemed so. I urge you to immediately investigate this matter and require that the votes taken on Nov. 16, 2022 be done over and that public hearings be held again especially on Item 41 a-e, 44 and 51.

I look forward to hearing from you or your office.

Sincerely,

Chris Giunchigliani

1717 S 15th St.

LV, NV 89104

702-521-1663

cc: Francisco Aguilar, SOS

___

John L. Smith is an author and longtime columnist. He was born in Henderson and his family’s Nevada roots go back to 1881. His stories have appeared in Time, Readers Digest, The Daily Beast, Reuters, Ruralite and Desert Companion, among others. He also offers weekly commentary on Nevada Public Radio station KNPR.

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