December 21, 2009

Nevada's toothless Ethics Commission

Following up on councilman Steve Ross' violation of state ethics laws, the Sun examines the distinction between willful and non-willful violations:

Ignorance of the law is no excuse for breaking it, the old legal saw goes. But that is not the case when it comes to Nevada’s ethics laws.

Nevada politicians who violate ethics laws face no penalties if their acts are not deemed "willful."

Apparently this neutered, "all bark and no bite" Commission acts this way by design:

Regardless, Ross’ case demonstrates what critics say is a shortcoming in Nevada law — namely, that even when elected officials violate ethics laws, they typically face neither penalties nor the potential to be removed from office.

That’s not by coincidence. The commission has decided that its primary job is to teach public officials about ethical conduct rather than punishing them, according to its executive director, Caren Jenkins.

Removing politicians from office, she said, is the job of voters. (emphasis mine)

Left unsaid is that both the Commission and the voters have a job. While it certainly is the voter's job to remove politicians from office if the need arises, it should also be the Commission's job to go after ethics violators with more than a slap on the wrist and an ethics pamphlet.

Skimming through Rory Reid's new plan for transparency and ethics in government, I found his intention to close this willful/non-willful distinction encouraging:

Impose "strict liability" for ethics violations

Currently, if the Nevada Ethics Commission rules that a violation was "non-willful," violators essentially get off penalty-free. This practice is dubious and encourages citizen cynicism — not to mention violations. Since I plan to institute and require ethics laws training for all state employees, officials and lobbyists, there will be no excuse for not knowing the law or understanding whether one's behavior violates it. there will be no further room for the "non-willful" distinction. I will move to have that loophole removed from law, so that all government officials and employees will be liable for all misconduct.

To top it all off, the 2009 Legislature made it even harder to prove that public officials willingly violate ethics laws:

In the future, it will be more difficult to prove that a politician willfully violated ethics law because of a little-noticed change in the statute made during the 2009 Legislature.

At the urging of ethics commissioners, the Legislature in May clarified the law defining a "willful violation." Instead defining it as something a public officer “knew or reasonably should have known,” the law now defines it as acting "intentionally and knowingly."

I have to imagine this is just the way they like it.