Opinion
No. 97-07
BEFORE
THE NEVADA COMMISSION ON ETHICS
IN
THE MATTER OF THE REQUEST FOR OPINION concerning the conduct of
JANET
KUBICHEK, Humboldt County Commissioner
This opinion is in response to a first-party request for opinion filed with the Nevada Commission on Ethics (Commission) by Janet Kubichek concerning her voting and conduct as a Humboldt County Commissioner. A hearing on this matter was held by the Commission on April 24, 1997 in Reno, Nevada, at which Ms. Kubichek and Mr. Michael McCormick, Humboldt County District Attorney, testified and presented evidence. At this hearing, Mrs. Kubichek waived her right to confidentiality for this proceeding. On May 30, 1997, the Commission publicly deliberated the matter and rendered its decision. The Commission now issues the Findings of Fact and Opinion which follow.
FINDINGS
OF FACT
1.
Until September 1995, Ms. Kubichek was married to Keith Kubichek, and the
couple has one son. In September
1995, Mr. and Ms. Kubichek divorced in an attempt to avoid some of the effects
of the bankruptcy of Ms. Kubichek’s prior husband.
For all practical purposes, Mr. and Ms. Kubichek still live together as
though they were husband and wife.
2.
The Kubicheks own and operate Desert Disposal, a hauler of solid waste in
Humboldt County. Serving the same area as Desert Disposal is one comparable
competitor and a one person operation. Desert
Disposal is the source of income for the Kubichek household, and both Mr. and
Ms. Kubichek work for and operate the company which is legally owned solely by
Mr. Kubichek as a result of the divorce.
3.
In January 1997, Ms. Kubichek was sworn in as a County Commissioner for
Humboldt County after successfully winning election in November 1996.
4.
Prior to and throughout Ms. Kubichek’s candidacy, the Humboldt County
Commission (County Commission) had been considering and deciding issues related
to the County's garbage collection service and the closure of rural landfills.
Regarding the garbage collection, the County Commission had considered
four options: (1) instituting
mandatory pick-up, (2) instituting a drop-box program, (3) instituting a
voluntary commercial haul or self-haul program, or (4) leaving the rural
landfills open. The District Attorney opined that the only feasible solution for
the County would be the closure of the County's rural landfills because of new
federal regulations that would become effective in October 1997.
5.
Ms. Kubichek had publicly expressed her opinions regarding the garbage
collection and rural landfill issues, both before her candidacy and throughout
her candidacy. Ms. Kubichek is very knowledgeable regarding these issues because
of her extensive personal involvement in Desert Disposal.
6.
Ms. Kubichek testified that Desert Disposal would financially benefit
from the closure of the rural landfills because some of the county’s residents
who are presently hauling their own garbage to the rural landfills would be
required to contract with the county’s three private garbage haulers,
including Desert Disposal, for their garbage hauling. Nonetheless, Ms. Kubichek
has always publicly argued, both before and after becoming a County
Commissioner, that the rural landfills should not be closed.
7.
Shortly after being sworn in as a County Commissioner, Ms. Kubichek and
Mr. McCormick, the District Attorney, began discussions intended to assist Ms.
Kubichek to understand her disclosure and abstention obligations under NRS
281.501(2) and (3) regarding garbage hauling and landfill issues.
Ultimately, by letter dated January 21, 1997, Mr. McCormick advised Ms.
Kubichek that she should not “partake in any discussion regarding these (solid
waste disposal) matters, nor should you vote on these matters.” At our hearing, Mr. McCormick explained that he gave the most
conservative advice under NRS 281.501(2) and 281.481(2) pending this
Commission’s opinion, and thus, he instructed Ms. Kubichek not to discuss or
otherwise participate in any matter involving solid waste disposal and landfills
when those matters came before the County Commission.
At our hearing, Ms. Kubichek indicated that she knew she would need to
disclose her interest in Desert Disposal and to abstain from participating in garbage
haul and landfill issues, but she believed that Mr. McCormick’s advice was
unduly restrictive. Mr. McCormick prohibited Ms. Kubichek, after her disclosure
and abstention, from going into the audience to participate as a member of the
public. Ms. Kubichek contended that
this advice kept her from providing the County Commission with her unique and
knowledgeable opinion. Nonetheless,
Ms. Kubichek did comply with Mr. McCormick’s advice even though she disagreed
with it.
8. At our hearing, Ms. Kubichek indicated that if the County Commission ultimately decided to put out some or all of the County’s garbage hauling to bid, that Desert Disposal would like to be able to submit a bid.
ANALYSIS
A
The
Commission has jurisdiction over this matter pursuant to NRS 281.511(2) because
Ms. Kubichek is a public officer as defined in NRS 281.4365.
By the time of our hearing, Ms. Kubichek conceded and agreed with Mr.
McCormick that she must disclose her interest in Desert Disposal and how that
interest would be affected by matters relating to garbage disposal and landfills
before the County Commission and that she must abstain from voting as a County
Commissioner upon such matters. The
real question, therefore, is a novel one in the jurisprudence of this
Commission: Where is the line
between prohibited advocacy and allowed participation in the consideration of a
matter under NRS 281.501(2)?
As
a starting point, NRS 281.501(2) explicitly prohibits only two acts by a member
of the legislative branch, namely voting and advocacy.
The legislative intent, therefore, is that anything that is not a vote or
advocacy is allowed a member of the legislative branch.
Furthermore, under this construct, a “vote” is readily and
objectively ascertainable, since it is a formal and binding acknowledgement of
assent in or dissent from a formally made motion to take a particular action.
Ms. Kubichek did not vote in contravention of NRS 281.501(2).
Our
analysis, therefore, must seek to discern between those acts that would
constitute impermissible advocacy and those acts that would be permissible
participation. We think the line is
most evident through illustration. For
example, if Ms. Kubichek were an applicant for a permit before her own County
Commission, she would be required by NRS 281.501(2) and (3) to disclose her
interest and abstain from voting on or advocating for the passage of her permit as
a County Commissioner, but she could step out into the audience
and testify regarding her permit as the applicant. We see
nothing in NRS 281.501(2) and (3) or elsewhere in the Ethics in Government Law
that would compel the conclusion that once Ms. Kubichek became a County
Commissioner, she became barred for the remainder of her term from participating
in the ordinary processes of Humboldt County government as any other citizen
would. Such a conclusion would be
absurd and would severely restrict the pool of potential candidates for any
office.
In
so saying, though, we must caution that Ms. Kubichek could not use her position
as a County Commissioner to affect the outcome of her application, because to do
so would violate NRS 281.481(2) and cause her other commissioners to violate NRS
281.481 (1). Thus, Ms. Kubichek
could not threaten her fellow commissioners with her opposition to their
measures unless they passed hers. Likewise,
Ms. Kubichek could not promise that she would act positively toward measures
proposed by her fellow commissioners if they supported her personal measures.
In other words, if Ms. Kubichek had a personal matter before her
County Commission, she would need to be treated by them and she would need to
treat them as any other citizen would.
The
issues raised in this Opinion present another scenario where the fine line
between advocacy and participation can be seen. For example, let us assume a matter involving garbage
collection came before the County Commission, so Ms. Kubichek
had to disclose her interest in Desert Disposal and abstain from voting or
advocating regarding the matter. NRS 281.501(2) would allow Ms. Kubichek to
“otherwise participate” in the matter, and in order to render this term
meaningful, we find that the Legislature meant that Ms. Kubichek could do something.
That “something” might be, for example, that Ms. Kubichek could
provide facts as any other citizen.
This is particularly crucial to this Opinion because Ms. Kubichek
was, presumably, elected in part because of her unique knowledge of garbage and
landfill issues that were pertinent to her constituents.
Again, we cannot find in NRS 281.501(2) and (3) or any other portion of
the Ethics in Government Law that a public official loses her voice after her
election regarding issues about which she might possess unique and valuable
knowledge and experience.
We
must caution, though, that the line dividing allowable factual testimony and
prohibited advocacy is razor thin. Statements
that begin, “in my opinion...,” “I think...,” “I believe...,” or
“I would hope...,” would be signals that the statement might be more
advocate than informative. A
statement like, “The standard dumpster you see in the back
of restaurants holds X cubic yards of garbage,” would clearly be an allowable
statement of fact. The intent of
the statement is guiding. A
statement of advocacy is prohibited, even if factual, because the intent of
advocacy is to get the hearer to believe
the same as the speaker, and where the speaker has special influence and power
because of her position, the hearer might be influenced to act not because of
the merits of the speaker’s argument but because of the speaker’s position
itself. On the
other hand, a statement of fact, without any overtones of advocacy, is allowed
because the intent of the speaker is merely to inform the hearer and so
theoretically the person of the
speaker should be irrelevant because information is information and facts are
facts, regardless of who provides them.
As
we have said before, the line between a statement of fact and a statement of
advocacy will often be razor thin. Because
the consequences of crossing the line will always rest upon the elected official
proffering the statement, the best general rule we can give is that an elected
official who has already disclosed and abstained from a matter because of a
disabling conflict of interest should always consider whether what she has to
say really needs to be said, and if she thinks so, then she must be very careful
with what she says and how she says it. Prudential forethought, common sense, and concern for
appearances of impropriety will be the best prophylaxis.
We interpret NRS 281.501(2) not to be a strict prohibition, but a stiff
caution. In other words,
a member of the legislative branch may speak about a matter in which she is
interested, but she had better know why, what, and how before she
does so.
Thus, we interpret NRS 281.501(2) to allow an otherwise legally conflicted elected official to “otherwise participate” in a matter by participating as a citizen applicant before the elected official’s body and by participating as a provider of factual information. We appreciate the difficult position Mr. McCormick found himself in when he advised Ms. Kubichek regarding NRS 281.501(2) and NRS 281.481(2) because this Commission had no previous analogous opinions. Mr. McCormick gave the most conservative advice, and Ms. Kubichek abided it, even though she disagreed with it. We applaud both Mr. McCormick and Ms. Kubichek for the civil and appropriate way in which they handled their impasse. Would that more public officials would act so professionally and in the public’s best interest.
CONCLUSION
Based upon the record, the Commission concludes that NRS 281.501(2) might allow Ms. Kubichek to “otherwise participate” in matters before the Humboldt County Commission for which she had to disclose and from which she had to abstain, as long as her participation is limited as we have discussed in this opinion.
COMMENT
It is specifically noted that the foregoing Opinion applies only to these specific facts and circumstances. The provisions of the Nevada Revised Statutes quoted and discussed above must be applied on a case-by-case basis, with results which may vary depending on the specific facts and circumstances involved.
DATED:
June 11, 1998.
NEVADA
COMMISSION ON ETHICS
By:
/s/ MARY BOETSCH, Chairwoman