Carrigan v. Comm'n on Ethics of State

• Decision Date: 27 November 2013
• Docket Number: No. 51920.,51920.
• Parties: Michael A. CARRIGAN, Fourth Ward City Council Member of the City of Sparks, Appellant, v. The COMMISSION ON ETHICS OF the STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

313 P.3d 880

129 Nev. Adv. Op. 95

Michael A. CARRIGAN, Fourth Ward City Council Member of the City of Sparks, Appellant,

v.The COMMISSION ON ETHICS OF the STATE of Nevada, Respondent.

No. 51920.

Supreme Court of Nevada.

Nov. 27, 2013.

Griffin, Rowe & Nave LLP and John W. Griffin and Matthew M. Griffin, Reno; Orrick, Herrington & Sutcliffe LLP and Rachel M. McKenzie and Mark S. Davies, Washington, D.C., for Appellant.

Nevada Commission on Ethics and Yvonne M. Nevarez–Goodson, Carson City; Vinson & Elkins, LLP, and Jeremy C. Marwell, Washington, D.C., for Respondent.

BEFORE THE COURT EN BANC.¹

OPINION

By the Court, PICKERING, C.J.:

This case returns to us from the United States Supreme Court, Nev. Comm'n on Ethics v. Carrigan, 564 U.S. ––––, 131 S.Ct. 2343, 180 L.Ed.2d 150 (2011), which reversed our decision in Carrigan v. Comm'n on Ethics, 126 Nev. ––––, 236 P.3d 616 (2010) (5–1). Where we held that Sparks City Councilman Michael Carrigan's vote on the Lazy 8 hotel/casino project constituted protected speech under the First Amendment, 126 Nev. at ––––, 236 P.3d at 621, the Supreme Court held the opposite. 564 U.S. at ––––, 131 S.Ct. at 2347. “[T]he act of voting” by an elected official on a local land-use matter, the Supreme Court held, “symbolizes nothing”; it is “nonsymbolic conduct engaged in for an independent governmental purpose.” Id. at ––––, 131 S.Ct. at 2350–51. Since Carrigan's vote on the Lazy 8 project did not constitute protected speech, the Supreme Court reversed our decision that the First Amendment overbreadth doctrine invalidated the conflict-of-interest recusal provision in Nevada's Ethics in Government Law. Id.

On remand, Carrigan makes two additional arguments. First, he contends that the conflict-of-interest recusal provision in Nevada's Ethics in Government Law is unconstitutionally vague, violating the Due Process Clauses of the Fifth and Fourteenth Amendments; second, that it unconstitutionally burdens the First Amendment freedom-of-association rights shared by Nevada's elected officials and their supporters. Because Carrigan did not raise these arguments in his brief in opposition to the Commission's petition for a writ of certiorari, the Supreme Court did not address them. 564 U.S. at ––––, 131 S.Ct. at 2351. We do so now.

I.

A.

This proceeding challenges the constitutional validity of NRS 281A.420(2)(c) and NRS 281A.420(8), the core conflict-of-interest recusal provisions in Nevada's Ethics in Government Law.² The lead-in section to the Ethics Law reminds us that “[a] public office is a public trust and shall be held for the sole benefit of the people.” NRS 281A.020(1)(a). And it emphasizes that an elected public officer “must commit himself to avoid conflicts between his private interests and those of the general public whom he serves.” NRS 281A.020(1)(b).

NRS 281A.420(2)(c) prohibits public officers from voting on matters as to which they have a conflict of interest. It states that “a public officer shall not vote upon ... a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by,” inter alia, “[h]is commitment in a private capacity to the interests of others.” A disqualifying “commitment in a private capacity to the interests of others” means a “commitment to a person” who is a member of the officer's household; is related to the officer by blood, adoption, or marriage; employs the officer or a member of his household; or has a substantial and continuing business relationship with the officer. NRS 281A.420(8)(a)-(d). Paragraph (e) adds a loophole-closing catchall: “Any other commitment or relationship that is substantially similar” to one of those listed in the preceding paragraphs (a)-(d).

The Ethics in Government Law offers an advisory opinion option. Under NRS 281A.440(1), a public officer may request and receive an Ethics Commission opinion regarding “the propriety of his own past, present or future conduct as an officer,” including, specifically, whether a conflict of interest exists that requires the officer to abstain from voting on a matter, NRS 281A.460. The Ethics Commission must render an advisory opinion “as soon as practicable or within 45 days after receiving a request, whichever is sooner.” NRS 281A.440(1). The request is confidential, NRS 281A.440(5), and the advisory opinion final and authoritative. SeeNRS 281A.440(1).

Nevada's Ethics Law distinguishes between willful and nonwillful violations. The distinction does not affect the determination of whether a violation has occurred, only the sanction to be imposed. If the Commission deems the violation willful, it “ may ” but is not required to “impose ... civil penalties” of up to $5,000 for a first violation, together with attorney fees and costs, NRS 281A.480(1) & (2) (emphasis added). If the Commission believes the violation may also constitute a crime, it must refer the matter to the Attorney General or the district attorney “for a determination of whether a crime has been committed that warrants prosecution.” NRS 281A.480(7).

NRS 281A.170 defines “[w]illful violation” to mean “the public officer or employee knew or reasonably should have known that his conduct violated” the Ethics Law. By law, the Commission cannot deem a violation willful if the public officer

... establishes by sufficient evidence that he satisfied all of the following requirements:

(a) He relied in good faith upon the advice of the legal counsel retained by the public body which the public officer represents ...;

(b) He was unable, through no fault of his own, to obtain an opinion from the Commission before the action was taken; and

(c) He took action that was not contrary to a prior published opinion issued by the Commission.

NRS 281A.480(5).

B.

The Ethics Commission censured Sparks City Councilman Michael Carrigan for voting to approve the Lazy 8 hotel/casino project despite a disqualifying conflict of interest. The conflict of interest grew out of Carrigan's relationship with Carlos Vasquez, Carrigan's longtime friend and campaign manager. For the six months leading up to the Lazy 8 vote, Vasquez was managing Carrigan's reelection campaign free of charge—the third such campaign Vasquez had managed for Carrigan—and placing Carrigan's campaign ads at cost. At the same time, Vasquez was receiving a $10,000–a–month retainer from the Lazy 8's principals, Red Hawk Land Company and/or Harvey Whittemore. Vasquez openly lobbied the Sparks City Council to approve the Lazy 8 project and testified before the body as a paid consultant.

Several citizens complained to the Commission that Carrigan should not have voted on the Lazy 8 project because of a conflict of interest. An evidentiary hearing followed, at which both Carrigan and Vasquez testified. After deliberation, the Commission issued a written opinion, which included findings of fact and conclusions of law. The Commission's findings of fact included findings that Vasquez “has been a close personal friend, confidant and political advisor” to Carrigan “throughout the years”; that Carrigan “confides in Mr. Vasquez on matters where he would not confide in his own sibling”; and that “[t]he sum total of their commitment and relationship equates to a ‘substantially similar’ relationship to those enumerated under NRS [281A.420(8)(a)-(d) ], including a close personal friendship, akin to a ... family member, and a ‘substantial and continuing business relationship.’ ” SeeNRS 281A.420(8)(e).

In its conclusions of law, the Commission opined that “commitment in a private capacity to the interests of others,” NRS 281A.420(2)(c), includes “close relationships which rise to such a level of commitment to another person's interest that the independence of judgment of a reasonable person in the public officer's position would be affected.” In the Commission's view, “[i]ndependence of judgment means a judgment that is unaffected by that commitment or relationship.” NRS 281A.420(2)(c)'s recusal requirement, the Commission emphasized, is an objective, “reasonable person” standard. Regardless of Carrigan's subjective belief that he was unbiased, “[a] reasonable person in Councilman Carrigan's position would not be able to remain objective on matters brought before the Council by his close personal friend, confidant and campaign manager, who was instrumental in getting Councilman Carrigan elected three times.” “[U]nder such circumstances,” the Commission wrote, “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 raise an “advice of counsel” defense before the Commission. Thus, he testified that the Sparks City Attorney advised him that his relationship with Vasquez did not create a disqualifying conflict of interest because he, Carrigan, did not personally stand to reap financial gain or loss from the Lazy 8 project. Carrigan admitted that, before he voted on the Lazy 8 project, he knew he could have asked the Commission for an advisory opinion—and that he had ample time to do so—but chose not to.

The Commission unanimously found that Carrigan violated NRS 281A.420(2)(c) by not abstaining from voting on the Lazy 8 matter. While it publicly censured him, it imposed no civil penalty or fine because it deemed his violation not willful.

II.

A.

We first consider—and reject—Carrigan's contention that NRS 281A.420(2)(c)'s recusal provision is void for vagueness where, as in his case, the disqualifying “commitment in a private capacity to the interests of others” is based on NRS 281A.420(8)(e)'s “substantially similar” provision, rather than one of the four relationships specified in NRS 281A.420(8)(a)-(d).

The void-for-vagueness doctrine is rooted in the Due Process Clauses of the Fifth and Fourteenth Amendments. State v. Castaneda, 126 Nev....