Supreme Court confronts whether Nev. conflict-of-interest law violates free speech
By Robert Barnes,
SPARKS, NEV. — Reprimanded by his state’s ethics commission for a conflict of interest on a development vote, Sparks City Council member Michael A. Carrigan arrives at the U.S. Supreme Court with an unusual status.
“I have the distinction of being the only elected official in Nevada to ever be brought up on ethics charges for losing a vote,” Carrigan said.
The question is whether Carrigan should even have participated in an application for a new casino in this boomtown near Reno. It has turned into a major constitutional showdown with national implications for how states may police public officials who face a potential conflict of interest in conducting the people’s business.
It also comes at a time when ethics and conflict-of-interest issues haven taken on a new resonance in the nation’s political discussions.
Carrigan’s state has been rocked by the scandal involving Sen. John Ensign (R), who announced last week he is resigning. The U.S. Supreme Court strode into the conflict-of-interest issue in 2009, ruling that an elected judge should have recused himself when a major campaign donor came before him. And the justices themselves are under increasing scrutiny from the left and right about whether their activities outside the courtroom cast doubt on their neutrality inside it.
Against such a backdrop, Carrigan’s case seems like routine municipal politics. The ethics commission said Carrigan crossed the line when he voted on the casino issue after his longtime friend and volunteer campaign manager was hired by the developer.
The Nevada Supreme Court elevated the matter when it agreed with Carrigan that restricting his ability to vote on council business violated his First Amendment right of free political speech.
John Elwood, the Washington lawyer representing the Nevada Commission on Ethics, told the justices — who will consider the case Wednesday — that the ruling is “literally unprecedented.”
Backed by 14 other states, Elwood said such a finding endangers “bedrock conflict-of-interest rules in virtually every state,” including basic laws “that have been an accepted and necessary part of representative self-government since before the ratification of the First Amendment.”
Carrigan’s attorney, Joshua Rosenkranz of New York, said the worries are hyperbole. It is Nevada’s conflict-of-interest law that is unprecedented, he said, if it means that a public official who has no financial or family ties to an issue cannot represent his constituents.
To rule that Carrigan cannot vote because of his campaign manager’s interests is to ignore reality, Rosenkranz told the court: Politicians and their supporters are naturally aligned on the issues.
The Nevada Commission on Ethics, Rosenkranz said, “wants to take the politics out of democracy.”
The Lazy 8 casino project was clearly the political issue of the year in Sparks’s 2006 city elections.
Carrigan, a Naval Academy graduate and aviator who began a second career as a journalist after retiring in 1992, represents the ward where the casino was to be built.
It is the fastest-growing part of a fast-growing city — Carrigan says the town’s population has increased from 35,000 to 95,000 in the past two decades. The snowcapped Sierra Nevada mountains still dominate the horizon, but ranches and sagebrush have given way to neat subdivisions, Pilates studios and emerald artificial-turf ballfields.
Outside one strip shopping center, oversize American and Nevada flags fly from disguised cellphone towers.
The proposed casino was part of a development that had received preliminary approval years earlier, before Carrigan was first elected. He said as a councilman that he negotiated with the company for concessions the town’s newcomers wanted: hotel rooms, movie theaters, restaurants and a police or fire station.
As another vote on the plan neared in the summer of 2006, the company hired Carlos Vasquez, a local politico who was Carrigan’s friend and reelection campaign manager. Carrigan asked the city attorney to research the state’s conflict-of-interest law to see if it caused him a problem; the attorney said Carrigan could vote as long as he disclosed the relationship.
He did, and voted for the casino, but the plan was defeated 3 to 2. (After a flurry of lawsuits, the casino project was eventually approved but for economic reasons has never been built.)
Opponents of the project filed complaints against Carrigan.
Nevada’s law forbids a public official from voting on an issue when a “reasonable person” would suspect a conflict because of financial ties or the interest of a spouse or family member. It also includes a catch-all category for “any other commitment or relationship that is substantially similar to a commitment or relationship” like those spelled out.
Caren Jenkins, the ethics commission’s executive director, said the panel thought Carrigan’s friendship with Vasquez fit into the catch-all category, although she acknowledged that the commission had some trouble deciding exactly which relationship it resembled.
Jenkins said Carrigan also saw the potential problem, or else he would not have sought a legal opinion.
“We can’t help it that he got bad advice,” she said.
The ethics charges seemed to have little impact on Carrigan’s campaign. His support of the casino was the main issue in the race, and he was reelected with 73 percent of the vote.
“I told the ethics commission, you know the people ought to be the ones to really decide if somebody did something unethical,” he said. “Clearly, they didn’t buy into it.”
But even some of Carrigan’s friend questioned his decision.
Jake Highton, a longtime journalism professor at the University of Nevada at Reno who taught Carrigan and then taught alongside him, said Carrigan should have sat out the vote.
“I think he’s as honest as the day is long,” Highton said. “But to me it’s a profound ethical question.”
Profound enough that Carrigan was unwilling to let the mild rebuke from the ethics commission stand.
He challenged the law at the Nevada Supreme Court. In a 5 to 1 ruling, the court said that voting by public officials on governmental issues was protected speech under the First Amendment and that efforts to restrict such voting have to meet the strictest standards.
While disclosure of potential conflicts of interest are clearly a compelling interest of the state, the majority said, Nevada’s catch-all provision was too broad to be constitutional.
The dissenting justice said the decision “opens the door to much litigation and little good.”
The ethics commission’s brief says the Nevada court made a fundamental mistake — a public official’s vote is not a matter of speech but of governing.
“The premise that the First Amendment entitles local legislators to cast votes on any matter, particularly one on which private interests would materially affect their independent judgment, is alien to the American constitutional tradition and to first principles of self-government,” the brief states.
Carrigan said the ethics commission is wrong to think a public official has a conflict when voting on issues important to his supporters.
“People usually volunteer for your campaign because they like you or they want you to do something they want, whether it’s lowering taxes or whatever,” Carrigan said. “It’s kind of politics in the United States of America. Is it right or wrong? I don’t know. But isn’t that why you support the people you do?”
The case is Nevada Commission on Ethics v. Carrigan.