Court upholds Sparks councilman’s censure
November 27, 2013
The Nevada Supreme Court has upheld the censure of Sparks Councilman Michael Carrigan for voting to approve a hotel-casino project when his longtime campaign manager was a paid consultant for the project.
The Nevada Ethics Commission issued the censure after Carrigan voted to approve the Lazy 8 project despite his relationship with Carlos Vasquez, a consultant for Lazy 8 owner Harvey Whittemore. At the time, Vasquez was receiving $10,000 a month for his work on the Lazy 8 project.
A district court judge ruled for Carrigan, but the commission took the issue to the Nevada Supreme Court. That court agreed the vote wasn't an ethical violation because it was protected speech under the First Amendment.
The state took the issue to federal court, where the U.S. Supreme Court reversed Nevada's high court, ruling that a public official voting on a public matter isn't First Amendment speech. It sent the case back to the Nevada court.
Carrigan made two added arguments in the renewed Nevada Supreme Court case: that the state Ethics I Government Law is unconstitutionally vague and unconstitutionally burdens the First Amendment freedom of association rights. He also argued that he got an opinion from the Sparks city attorney that he could vote on the resort application. That opinion was the reason the commission determined Carrigan's violation wasn't willful, relieving him of potentially more serious consequences.
A majority of Nevada's court on Wednesday issued an opinion rejecting those arguments. The opinion by Chief Justice Kris Pickering said the law is constructed to give the commission flexibility to address relationships technically outside the four specific categories in the law contained in the statute. The opinion states that flexibility allows consideration of relationships such as the relationship with Vasquez that "implicate the same concerns and are substantially similar to them."
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"We are disinclined to invalidate a civil statute addressing conflicts of interest by public officials on the grounds that, in some cases, it poses problems of application that require a case-by-case elaboration in common law fashion," she wrote.
The opinion also rejects the argument the censure burdens Carrigan's rights of association.
Even if that argument were accepted, Pickering wrote, "the burden is scant when compared to the state's important interest in avoiding conflicts of interest and self-dealing by public officials entrusted with making decisions affecting our citizens."
Pickering was joined by justices Mark Gibbons, Jim Hardesty and Nancy Saitta along with Clark County District Judge Allen Earl, who was appointed to sit for Ron Parraguirre.
Justices Michael Douglas and Michael Cherry dissented, arguing that when the commission concluded the violation wasn't willful, it "inescapably concluded that he didn't know and should not have reasonably known that his conduct would violate (statute)," and, therefore, the censure should be vacated.