Public
Officer, Member, State Board
This
matter came before the Nevada Commission on Ethics (hereinafter the
“Commission”) on February 7, 2002, on the request for advisory opinion filed
by Public Officer, member of a State Board, pursuant to NRS 281.511, Subsection
1.
The
matter was properly noticed as a confidential matter and the hearing was closed
pursuant to NRS 281.511, Subsection 5. Public
Officer appeared in person, was sworn and presented testimony.
The underlying Advisory Opinion herein is confidential pursuant to NRS
281.511, Subsection 5(c).
The
Commission, after hearing testimony and considering the evidence presented
herein, makes the following Findings of Fact and Conclusions of Law.
FINDINGS
OF FACT
1.
Public Officer is a
member of a State Board (the “Board”).
2.
The State of Nevada
has announced an open competitive recruitment for a full-time position in a
State of Nevada Department (the “Department”).
3.
Public Officer holds a
valid license in Nevada and meets the qualifications for the advertised position
and is considering applying for the position.
4.
The position in
question works under the direction of one of the Department’s Directors.
5.
The Director reports
to one of the Department’s deputy administrators.
6.
The Department’s
deputy administrators are appointed by and report to the Department’s
administrator.
7.
The Department’s
administrator executes, directs, and supervises the administrative, technical
and procedural activities of the Department in accordance with policies
prescribed by the Board.
8.
The Board appoints the
administrator and evaluates the administrator’s performance.
The Board may remove the administrator from office for good cause.
9.
The Board approves all
personnel positions for the Department.
10.
The Board proposes the
Department’s annual budget.
11.
The Board has the
power to revoke relevant licenses.
1.
Public Officer is a
public officer as defined by
NRS 281.005 and
NRS 281.4365.
2.
The Commission has
jurisdiction to render an opinion in this matter pursuant to
NRS 281.511,
Subsection 1, and
NRS 281.521.
WHEREFORE,
on motion duly made, seconded, and approved by majority vote, the
Commission renders the following Opinion:
It
is the Commission’s opinion that should Public Officer choose to seek the
advertised position with the Department, both her candidacy and, if she is
selected as the successful candidate, her appointment to that position may
implicate one or more of the prohibitions of the provisions of NRS Chapter 281,
Nevada’s Ethics in Government Law.[1]
Nevada’s
Ethics in Government Law is concerned with situations involving public officers
and public employees that create appearances of impropriety and conflicts of
interest as well as actual impropriety and conflicts.[2]
The specific circumstances proposed by Public Officer herein create the
potential for her to become the boss (i.e., a member of the Board) of the boss
(i.e., the administrator) of the boss (i.e., a deputy administrator) of her boss
(i.e., a Department director) – a situation which could put Public Officer at
risk of creating at least an appearance of impropriety and/or a conflict of
interest and the potential for third-party allegations against Public Officer of
ethical violations under NRS Chapter 281.
NOTE:
THE FOREGOING OPINION APPLIES ONLY TO THE SPECIFIC FACTS AND
CIRCUMSTANCES DEFINED HEREIN. FACTS
AND CIRCUMSTANCES THAT 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:
March 21, 2002.
NEVADA
COMMISSION ON ETHICS
By: /s/ TODD RUSSELL, Chairman
[1]
The Commission notes particularly the provisions of
NRS 281.230(1) and
NRS
281.481(2). NRS 281.230
prohibits a State of Nevada public officer from receiving, in any manner,
directly or indirectly, personal profit or compensation of any kind
resulting from any contract or other significant transaction in which the
employing public entity is in any way directly interested or affected. NRS 281.481(2) prohibits a public officer from seeking
or accepting any gift, service, favor, employment, engagement, emolument or
economic opportunity which would tend improperly to influence a reasonable
person in his position to department from the faithful and impartial
discharge of his public duties. By
serving as both a member of the Board and an employee of the Department,
Public Officer may create the type of compensatory relationship prohibited
by NRS 281.230(1) and could be perceived as using his/her position on the
Board to affect his/her interests in the position with the Department in
violation of NRS 281.481(2). See
also, NCOE Opinion No. 98-71.
[2]
See, NCOE Abstract
of Advisory Opinion No. 99-57.