Abstract of Opinion No. 99-60
BEFORE THE NEVADA COMMISSION ON ETHICS
IN
THE MATTER OF THE OPINION REQUEST OF A PUBLIC OFFICER
This
matter came before the Nevada Commission on Ethics (hereinafter "NCOE') on
Friday, January 21, 2000, for hearing on the first-party opinion request filed
with the Commission by Public Officer, a member of a public board of
commissioners (hereinafter "Board"), pursuant to Subsection 1 of NRS
281.511. Notice of the hearing was properly served. The hearing was closed
pursuant to NRS 281.511, Subsection 5.
Public
officer requested an Opinion from the NCOE regarding his personal active
involvement, and that of his wife, in various interested organizations in light
of NRS 281.501.2(c) and NRS 281.481.2, as recently modified by S.B. 478.
Public
officer appeared in person, was sworn, and presented testimony.
The
NCOE, after full consideration of the request for opinion, the testimony, and
the evidence makes the following Findings of Fact and Conclusions of Law:
1.
Public Officer is a member of the Board. He was appointed to the Board
based on his active involvement in activities in which the Board is interested.
The Board was created by statute and its composition is defined by statute. Its
members are appointed by the governor.
2.
The Board is an arm of a department of the State of Nevada created by
statute to establish broad policy and adopt regulations for a division within
the department. As part of its responsibilities, the Board makes decisions which
involve the exercise of administrative discretion in the formulation of public
policy, the expenditure of public money, and the enforcement of laws and rules
of the State of Nevada within its specific area of responsibility.
3.
As a member of various related organizations, public officer and his wife
have been, and currently are, actively involved in efforts related to the
Board's responsibilities for several years. Public officer's wife is President
of a local chapter of one of the organizations and sits on a national policy
setting board for that organization. These organizations have had in the past,
and may have in the future, issues before the Board.
4.
Some of these organizations have received grant money from the Board for
specific projects. The grants are funded by the interest earned on trust account
funded by license fees paid by individuals interested in participating in
specific activities. In the past, if an organization in which public officer is
a member has applied to the Board for a grant, public officer has disclosed his
membership in the organization and abstained from voting.
5.
The organizations in which public officer is involved come before the
Board from time to time with recommendations for policies concerning their
particular areas of interest.
6.
At times an organization's position on an issue has been in conflict with
that of the Department under which the Board functions. In the past, the Board's
vote on such issues has been both with and against the organization.
7.
Public officer has been asked to accept the chairmanship for an
organization, providing assistance to local chapters with banquets, grant
requests, work projects, etc.
8.
In his leadership position with the organization, the Public Officer
receives no salary or other compensation, but the organization will reimburse
public officer for the cost of his airfare to the national convention. Public
officer receives no per them from the organization for such trips.
9.
Many other members of the Board are also members of, and actively
participate in, related organizations. They attend the organizations' banquets;
they make cash contributions to the organizations; they donate time and things
of value to the organizations. As specified Board members, their participation
in such organizations is essential to understanding the various needs and issues
of the activities within their responsibility.
10.
Occasionally, Board members are the guests of an organization for lunch
or dinner after a meeting of the organization or in connection with a field
trip. Public officer has received no gift of significant value from any of the
organizations in which he is a member.
1.
Public officer is a public officer as defined by NRS 281.005 and NRS
281.4365.
2.
The NCOE has jurisdiction to render an opinion in this matter pursuant to
NRS 281.511(1).
WHEREFORE,
on motion duly made,
seconded, and approved by unanimous vote, the NCOE renders the following
Opinion:
The
Nevada Legislature has declared it to be the public policy of this state that a
"public office is a public trust and shall be held for the sole benefit of
the people" and that a "public officer or employee must conduct
himself to avoid conflicts between his private interests and those of the
general public whom he serves." Further,
the Nevada Legislature has declared that, "to enhance the people's faith in
the integrity and impartiality of public officers and employees, adequate
guidelines are required to show the appropriate separation between the role of
persons who are both public servants and private citizens." NRS
281.421.
In
that regard, the NCOE recently issued a comprehensive opinion on the disclosure,
participation and abstention standards of public officers in light of
legislative changes to NRS 281.501, which, effective October 1, 1999, defines a
public officer's "commitment in a private capacity to the interests of
others." See, Nev.
Comm'n. on Ethics Opinion No. 99-56, In The Matter of
the Opinion Request of Bruce L. Woodbury (hereinafter "Woodbury Opinion').
The Woodbury Opinion is instructive on the NRS 281.501 disclosure,
participation and abstention standards. Public officer is, therefore, referred
to the Woodbury Opinion (a copy of which is
attached hereto) for further guidance when faced with potential private/public
conflict of interest decisions.
Public
officer is cautioned that when, as a member of the Board, he makes a disclosure
in accordance with NRS 281.501 and the Woodbury Opinion,
he must disclose (a) his membership, and/or that of his wife, in the
particular organization or organizations to which he and/or she belong; and (b)
the potential effect which the decision he is making as a public officer will
have on those organizations and on him and/or his wife as a member or members of
those organizations. After making such proper disclosure, on a case-by-case
basis, public officer must then determine whether the independence of judgment
of a reasonable person in his situation would be materially affected by his
commitment, or that of his wife, to the organization or organizations
affected by the decision being made and under the circumstances presented in the
particular matter before the Board. If so, public officer must also refrain from
advocating the passage or failure of the matter and abstain from voting upon the
matter. Public officer's decision regarding abstention will, of course,
necessarily vary depending on what issue is before the Board, the effect of
public officer's vote on the organization or organizations, and public officer's
private interests, and/or those of his wife, related to the organization or
organizations.
As
the NCOE stated in the Woodbury Opinion:
Abstention
in all such cases would be a safe harbor for public officers and employees.
However, the public ... (and an [appointed official's appointing authority))
have an interest in matters which come before such officers and employees.
Abstention deprives the public and that official's constituents of a voice in
governmental affairs. And, public officers and employees should have the
opportunity to perform the duties for which they were elected or appointed,
except where private commitments would materially affect one's
independence of judgment. Compliance
with disclosure requirements informs the citizenry as to how its public officers
and employees exercise their discretion and independent judgment. And, in
exercising their discretion and independent judgment, public officers and
employees are accountable to their constituents or their appointing authority.
The burden, therefore is appropriately on the public officer or employee to
disclose private commitments and the effect those private commitments can have
on the decision-making process, and to make a proper determination regarding
abstention where a reasonable persons' independence of judgment would be
materially affected by those private commitments." Nev. Comm'n. on Ethics,
Op. No. 99-56, at page 8.
Public
officer is also advised to continue to exercise caution in accepting any
financial benefits (e.g., meals, gifts, accommodations, etc.) offered to him by
the various organizations to which he and/or his wife belong so as not to
compromise his integrity and his ability to exercise his duty as a Board member
to make impartial and fair-minded decisions.
NOTE:
THE FOREGOING OPINION APPLIES ONLY TO THE SPECIFIC FACTS AND CIRCUMSTANCES
DEFINED HEREIN. FACTS AND CIRCUMSTANCES WHICH DIFFER FROM THOSE IN THIS OPINION
MAY RESULT IN AN OPINION CONTRARY TO THIS OPINION. NO INFERENCES REGARDING THE
PROVISIONS OF NEVADA REVISED STATUTES QUOTED AND DISCUSSED IN THIS OPINION MAY
BE DRAWN TO APPLY GENERALLY TO ANY OTHER FACTS AND CIRCUMSTANCES.
DATED:
February 25, 2000
NEVADA
COMMISSION ON ETHICS
By:
/s/ PETER C. BERNHARD,
Chairman