Opinion No. 97-36 & 97-47
NEVADA COMMISSION ON ETHICS
IN THE MATTER OF
THE REQUEST FOR OPINION CONCERNING THE CONDUCT OF
JOHN C. CLAYPOOL, KEN McGUIRE, and GEORGE NEWELL, Palomino Valley General Improvement District (PVGID) Trustees
Opinion is in response to a third-party request filed on July 2, 1997 with the
Nevada Commission on Ethics (Commission) by Wanda Wright concerning the conduct
of John Claypool, chairman of the Palomino Valley General Improvement District (PVGID),
and Ken McGuire, trustee of the PVGID (Request #97-36), and a third-party
request filed on September 8, 1997 by John Vander Meer concerning the conduct of
George Newell, trustee of the PVGID (Request #97-47).
The two opinion requests were consolidated for purposes of hearing and
disposition. A series of public
hearings were held from October 1997 through July 1998 at which numerous
witnesses testified and a number of exhibits were accepted into evidence.
Throughout these hearings, the PVGID board members were represented by
Louis Test, and Ms. Wright and Mr. Vander Meer represented themselves. At its hearing on July 23, 1998, the Commission publicly
deliberated the matter and rendered its decision. Because each of the three sets of allegations rely upon
distinct facts and analyses, each will be taken up separately. The Commission now issues the Findings and Fact and Opinion
OF JOHN CLAYPOOL (Request #97-36)
On June 7, 1994, Mr. Claypool entered into a water
rights agreement with the PVGID to allow the PVGID to pump water from one of Mr.
Claypool’s wells for the use of the PVGID’s maintenance equipment.
The agreement provided that Mr. Claypool would be paid by the PVGID for
the water the PVGID used.
On February 28, 1995, Mr. Claypool was appointed to serve as a PVGID
trustee. At the PVGID’s meeting
on February 28, 1995, the PVGID’s legal counsel explained that Mr. Claypool
could legally continue to provide water to the PVGID, but he advised Mr.
Claypool to not vote upon matters related to the paying of the payment of money
pursuant to the water rights agreement.
The decision to continue to use Mr. Claypool’s well after Mr.
Claypool’s appointment to the PVGID was necessary because Mr. Claypool was the
only resident in the PVGID who both had the necessary water capacity and was
willing to allow the PVGID to draw on the water.
Wright’s opinion request showed concern that Mr. Claypool’s water rights
agreement with the PVGID was allowing Mr. Claypool to personally benefit from
his public service as a PVGID trustee in violation of NRS 281.481(2).
We conclude that the facts in evidence do not support Ms. Wright’s
Mr. Claypool entered into the water rights agreement almost one year before he
was appointed to serve as a PVGID trustee.
The sequence of events shows that Mr. Claypool did not use his position
as a PVGID trustee to give himself a private benefit since he was not a PVGID
trustee at the time the agreement was made.
Furthermore, this Commission commends the PVGID’s counsel for
recognizing and acknowledging the legal and ethical implications of Mr.
Claypool’s situation and advising Mr. Claypool from his first day of service
as a PVGID trustee as to what course of action Mr. Claypool must take to avoid
the legal and ethical pitfalls. This
Commission will only add to Mr. Test’s advice to Mr. Claypool that for any
matter in which abstention is required under NRS 281.501(2), full and fair
disclosure of the nature and extent of the reason for the abstention is required
under NRS 281.501(3).
view of the substantial evidence presented to this Commission, we must conclude
that Mr. Claypool has not violated NRS 281.481(2) and will not do so as long as
he complies with Mr. Test’s and this Commission’s advice.
OF KEN McGUIRE (Request #97-36)
Ken McGuire’s son, John, and Mr. Wes Smithart, a PVGID employee, agreed
that they would get together to help place a mobile home on a temporary
foundation on land owned by Ken McGuire. Mr.
Smithart and John McGuire had discussed that John McGuire had been having
difficulties maneuvering the mobile home with a jack that John McGuire had been
The next day, Mr. Smithart showed up at the mobile home site with a
loader that belonged to the PVGID. Mr.
Smithart explained that he decided to bring the loader to
the site because in his judgment the equipment John McGuire had been
using was unsafe. John McGuire had
not requested that Mr. Smithart bring the PVGID’s loader to assist in the
setting of the mobile home.
Mr. Smithart used the PVGID’s loader to lift the mobile home so that
jacks could be positioned underneath the mobile home.
Once the jacks were in place, Mr. Smithart drove the loader back to the
PVGID yard. The total time that the PVGID equipment was in use, from
driving the loader from the yard to the McGuire property and back, was
approximately 45 minutes.
Ken McGuire was unaware that John McGuire and Mr. Smithart had made
arrangements to work on the setting of the mobile home.
Both Ken and John McGuire were unaware that Mr. Smithart planned to use
the PVGID’s loader to assist in the lifting of the mobile home.
In fact, because of where Ken McGuire was during the process of setting
the jacks, he was unaware that Mr. Smithart had been using the PVGID’s loader
until after the use of the loader was completed.
Once Mr. McGuire became aware that the PVGID’s loader had been used on
his personal property for personal purposes, Mr. McGuire immediately called two
other PVGID trustees to explain what had happened.
All parties involved, Ken McGuire, John McGuire, and Mr. Smithart,
offered to repay the PVGID for the time that the PVGID’s loader had been used
on Mr. McGuire’s property. Repayment
had not been made by the time of hearing only because the PVGID’s counsel had
instructed the parties not to make such a payment until the matter could be
heard and resolved by the Commission.
Wright’s concerns regarding Mr. McGuire were that he had used PVGID equipment
and personnel for his personal purposes, namely to set up his son’s mobile
home on land owned by Mr. McGuire, in violation of NRS 281.481(2).
Ms. Wright was right in bringing this matter to the Commission’s
attention because if her suspicions had been borne out by her observations, a
clear violation of the Ethics in Government Law would have been committed.
evidence showed, though, that Mr. McGuire was a victim of Mr. Smithart’s
well-intended but, nonetheless, poor judgment.
Neither of the McGuire's asked Mr. Smithart to bring the PVGID loader to
the site. Ken McGuire did not even know that the PVGID’s loader had been used
on the site until after the use of the equipment was over.
Mr. Smithart was not being paid by the PVGID at the time that he was
assisting the McGuires.
the substantial evidence before this Commission showed that Mr. McGuire did not
violate NRS 281.481(2). Nonetheless,
this Commission admonishes Mr. Smithart never again to use PVGID equipment for
personal purposes, no matter how much he thinks such use is justified.
It is one thing to use the PVGID equipment to pull a resident’s car out
of a ditch; it is quite another to purposely drive PVGID equipment onto a
resident’s private property to be used for a period time for the private
purposes of that resident. Any such
future personal use of the PVGID’s equipment by Mr. Smithart or any other
PVGID employee or trustee will be deemed a willful violation of the Ethics in
Government Law and may subject the employee or trustee to fines up to $5,000.00.
OF GEORGE NEWELL (Request #97-47)
The PVGID maintains approximately 98 miles of unpaved roads on a budget
of approximately $230,000.00. The
funds available to the PVGID are inadequate to maintain all of the roads in a
Because the PVGID’s funds are limited and inadequate, the PVGID set priorities
for the roads based upon their use and designation. The roads that received the highest priority were roads that
were major arterials for the PVGID. These
roads were used by most residents, were used by the Washoe County School
District’s buses, and were designated for use by emergency vehicles.
Roads lower in priority were minor arterials, collectors, and local use
roads. The roads lowest in priority
were seasonal use roads.
Mr. Newell lived on Sharrock Road. Sharrock
Road is designated by the PVGID as a high-priority road because it is used by
the school buses and emergency vehicles.
The PVGID’s records regarding the maintenance of the PVGID’s roads
showed that the priorities set by the PVGID generally controlled the use of the
PVGID’s limited resources.
Vander Meer alleged that Mr. Newell used his position as a PVGID trustee for Mr.
Newell’s personal benefit and advantage by assuring that roads adjacent to Mr.
Newell’s personal real property were better maintained than other roads in the
district, thus violating NRS 281.481(2). Had
the evidence showed that Mr. Newell had manipulated the PVGID’s maintenance
routine so that his roads were better maintained than other roads in the
district, such conduct would have violated NRS 281.481(2).
We conclude, though, that the substantial evidence before this Commission
does not support such a conclusion.
there was tremendous disagreement regarding factual details, the wider factual
picture that emerged was clear. The
wider view of the facts showed that the PVGID is being asked to maintain too
many roads with too small a budget and that this difficulty was intractable.
The wider view of the facts showed that the PVGID’s response to the
difficulties it faced was rational, reasonable, and in good faith.
The priorities set by the PVGID were the inevitable result of these
difficulties, and the priorities -- not the domiciles of the trustees -- seemed
to govern the allocation of the PVGID’s limited resources.
such straitened circumstances, apparent inequities will result.
This Commission was impressed that the concerns expressed by the
PVGID’s residents who testified before the Commission were genuine and
heart-felt. When privation is the
rule and all are footing the bill, any apparent inequity will be noticed and
this Commission, and apparently as a PVGID trustee, Mr. Newell was abrasive,
confrontational, and imperious. While
these qualities can be quite useful in some situations, they acted like salt in
the wounds of the PVGID’s residents, all of whom were suffering from the
intractable difficulties inherent in the operation of the district.
The incivility between Mr. Newell and his constituents undermined any
cooperative spirit among the similarly situated denizens of Palomino Valley and
exacerbated an already unpleasant situation.
rudeness and imperiousness do not constitute violations of
the Ethics in Government Law, no matter how egregious.
The ballot box is the proper forum
to address unlikable public servants. Our
surmise is that Mr. Newell’s obstreperous manner invited the scrutiny of the
PVGID’s residents and that in such an unfriendly atmosphere, any improvement
of Sharrock Road, no matter how justified, would be suspect. Regardless,
the substantial evidence in this matter showed that Mr. Newell did not
personally benefit from the maintenance of Sharrock Road in an unwarranted way
because the maintenance of Sharrock Road was made in accordance with the
reasonable and necessary priorities assigned by the PVGID board. It
simply cannot be unwarranted for a cash-strapped district to expend its precious
resources maintaining its most necessary roads first and best according to a
rational priority system, even where some of the better maintained roads run
adjacent to property owned by one of the district’s trustees.
these reasons, Mr. Newell did not violate NRS 281.481(2).
Mr. Claypool, Mr. McGuire, nor Mr. Newell violated NRS 281.481(2).
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.
June 30, 1999.
COMMISSION ON ETHICS
By: /s/ MARY E. BOETSCH, Chairman
NRS 281.481(2) provides:
A public officer or employee shall not use
his position in government to secure or grant unwarranted privileges,
preferences, exemptions or advantages for himself, any member of his
household, any business entity in which he has a significant pecuniary
interest, or any other person.