Report of the 2003 Task Force to Study the Ethics Guidelines of Clark County, Nevada

At the request of, and upon appointment by, the County Commission/County Manager, the undersigned assembled as a Task Force to study and make recommendations regarding the ethics guidelines of Clark County. Those guidelines were first proposed in 1999 by another Task Force, seven of whose members also serve on the current, 2003 Task Force, and were adopted, with modifications, by the Clark County Board of Commissioners in 1999.

In May, 2003, the Clark County Board of Commissioners decided to empanel the 2003 Task Force to reconsider the 1999 Guidelines in general and to examine five issues specifically. Those five issues are:

• when does a conflict of interest exist

• what should be done when there is a conflict

• should "manufactured conflicts"those that arise because of a deliberate decision of a third party to create a conflict of interest by employing the law or other firm of a Commissioner or other senior officialdisqualify the public official from acting in the matter

• should the 1999 Guidelines regarding the "cooling off period"the time during which a former official is prohibited from representing others before Clark County governmentbe modified

• and what sanctions ought be available for violations

The 2003 Task Force met four times this summer (June 12, June 24, August 6 and September 9) to discuss these issues in public session.

The proposed Guidelines that are attached as Exhibit A address the five issues in turn, as well as certain other matters. The proposed Guidelines do not address the subject of public corruption, which is the province of state and federal criminal law and which was not within the charge of the commission.. The purpose of this Report is to explain the general principles on which those proposed Guidelines are based. Like the 1999 Guidelines, the current proposals apply to elected county officials and to senior county employees. Unlike the 1999 Guidelines, the "cooling off period" proposal also extends to positions included in the County Management Plan.

Many jurisdictions that have adopted ethics guidelines or rules have done so in a quite detailed and regulatory way, often propounding many pages of specific rules and regulations for the guidance (or curtailment) of public officials. For the following reasons, we decline to follow this model.

First, law and ethics are related but different concepts. Ethics involves, among other things, personal choice and responsibility as to appropriate behaviors by the individual. Law imposes requirements of minimally acceptable behavior, thereby lessening personal choice and responsibility in favor of state-imposed norms. An ethics code ought to encourage responsible behavioral choices through general principles, to be applied by our Countys leaders, while minimizing prohibitions and regulations.

Second, the regulatory approach taken in many jurisdictions quite often results in rule books that are so complex as to defy understanding (or even reading) by all but the lawyers. For an ethics code to be workable it must by simple and accessible, so that everyone can understand its goals and use it as a tool in seeking to make responsible decisions as to individual behavior.

Third, the imposition of more detailed rulesin the form of prohibitions and regulationslessens our individual freedom and discourages personal responsibility. Each prohibition or regulation that is enshrined into law restricts the freedom of all who are subject to it, which means, of course, that such restrictions should not be lightly enacted, particularly in a country whose first principle is individual liberty. Of equal importance, each such enactment reduces individual responsibility, for when the state prohibits some things it signals that those things are "wrong" but that everything else is "right." Of course, not everything that is legally possible is ethically correct, but it is not uncommon for people to argue that they acted completely appropriately (both legally and ethically) because their conduct was not covered by the prohibition or regulation in question. To prevent this sort of argument and evasion of personal responsibility for difficult ethical decisions, the 2003 Task Force decided to propose fairly general principles, rather than detailed regulations or prohibitions.

Accordingly, with the exception of the proposals on gifts and "cooling off" period, the Guidelines that we propose are stated in fairly general and simple terms. This does not mean, of course, that those guidelines will be free of ambiguity or will be simple in their application. To the contrary, the application of general principles to specific situations can be quite challenging to the persons who must apply them. In the case of the proposed principles, those persons are the county leaders whose conduct is subject to the Guidelines. This then leads to the next general principle.

When the voters elect County Commissioners or other officials, or when the Board or County Manager appoint senior county officials, advisory board members, or Planning Commissioners, those officials are chosen for leadership roles. A major aspect of leadership is to set an ethical example for peopleemployees, voters, citizento follow. A leader should not need a roadmap or regulatory framework with which to make ethical decisions; indeed, the existence of such a framework reduces the opportunity for the senior official to demonstrate leadership in the form of responsible choice.

Thus, the proposed Guidelines proceed on the assumption that our elected and appointed county officials are up to the task of grappling with general ethical guidelines as they seek to comport themselves in ethical ways. The Guidelines also proceed on the assumption that the ethical behavior of a senior official is the responsibility of that official and not the responsibility of a regulator or regulatory map maker. Hence, the proposed Guidelines remain fairly simple and general, inviting responsible application by our leaders.

Whether a decision is to be made by the Board of County Commissioners, by the County Manager or by some other elected or appointed county official, the decision maker can make a good decision only if he, she or it knows of factors that may influence the decision. Among those factors are interestsfamilial, business, personal, collaborative or otherwisethat may conflict with the Countys interests. Thus, to enhance decision making and to encourage decisions that will be in the Countys best interests, the proposed guidelines seek to elicit disclosure of any relationships that could constitute a conflict of interest. While such disclosure may (or may not) result in the disqualification of the person with the conflict, others who are involved in the decision making process will make better decisions if they know of the interest and circumstances of the colleague who has made the disclosure.

While there is often no right or wrong answer to a difficult ethical question, the citizens of the county have right to know what the question was and how the public official answered it. A failure to abstain in the face of repeated, disclosed conflicts of interest may lead the voters to question the judgment of the official in question, just as repeated abstentions may lead the voters to wonder whether their representative is serving them at all. Thus, the proposed guidelines seek to elicit much disclosure about conflicting interests, as well as disclosure of what the official did in the face of the conflict and why. This information should be shared with the public and the press, so that the voters can evaluate this information in connection with their next electoral decision.

In the case of elected county officials, who have been selected by the people to do their work, disqualification for any reason lessens the representation of the people. Thus, even though such official may have disclosed a conflict of interest under section 2 of the proposed Guidelines, he or she must abstain only if the requirements of Section 4 are met. Those requirements go to the independence of the officials judgment and his or her ability to act in the countys or publics best interests. Too casual a disqualification of elected officials, particularly in cases of "manufactured conflicts", is not a good thing in a democracy.

Elected officials should, of course, keep this in mind not only in making individual decisions as to participation, but also in their decisions regarding their affiliations and activities outside of their official duties. Furthermore, the organizations that employ elected officials should be cognizant of the potential for " manufactured conflicts" and should use restraint and discretion in entering into affiliations that act to compromise elected officials or that may be seen as compromising elected officials. Law firms, in particular, are not required to accept new business without question and are entitled under the Rules of Professional Responsibility to refuse engagements for a variety of discretionary reasons, including the possibility that an engagement will constrict the government activities of an employee or partner of the firm.

In the case of senior county employees who are subject to the proposed Guidelines, disqualification may not be as great a concern. Here, it is possible that other employees can pinch hit for the one who is disqualified. However, while disqualification concerns are greater in the case of elected officials, the proposed Guidelines apply the same standards to both elected and appointed officials.

These decisions can be very difficult, often involving the weighing of many factors. As noted above, we should expect our leaders to make these decisions in good faith and with appropriate deliberation, thereby setting an example for our community and citizenry. The 2003 Task Force notes with approval the opinion of the State Ethics Commission in the Woodbury case, a matter in which the commission discussed the sort of factors that one would consider and the sort of process that one would use to determine whether disqualification is required or not. Whatever the decision is, it will be disclosed to the public, as noted above.

Nothing in the proposed guidelines impairs the ability of an employees supervisor to direct and control that employees work. Thus, even if a senior official (who is an employee, rather than an elected official) determines that he or she need not recuse himself or herself in a matter, that official could still be removed from the matter by his or her supervisor.

In the view of the 2003 Task Force, when a conflict exists that results in abstention under section 4 of the proposed Guidelines, the official should not participate at all in the matter. It is not enough simply to abstain from voting. If the officials independence of judgment and ability to act in the countys or publics best interests are impaired, he or she should do nothing at all with the matter.

In addition to the conflict of interest provisions, the proposed Guidelines contain two prohibitions that are based on this principle. The first of these mandates a "cooling off period" of twelve months following separation from County service, during which former senior county officials (including positions in the County Management Plan) may not represent others before the Clark County Government. The second provides that county elected officials shall not accept gifts of more than $50 in value, with certain exceptions, in any year from a single source. Both of these provisions are intended to avoid erosion of the citizenrys trust in government.

The cooling off provision of the proposed Guidelines modifies and strengthens the similar provision contained in the 1999 Guidelines. The entire 2003 Task Force agreed to this change and to an exception from the cooling off period rule for those who leave Clark County service to work as an employee of another government.

The limitation on gifts is new, and it was adopted by the 2003 Task Force by a vote of seven to two. Those who favored (and passed) this provision believe that (1) such a provision is necessary to avoid eroding trust in government; and (2) such a provision is desirable since county employees are subject to a similar restriction on the receipt of gifts. Those who opposed the provision believe that (1) the receipt of gifts by county officials is neither a problem nor a part of the specific charge of the Task Force; and (2) that the best way to deal with the receipt of gifts is to require frequent and specific disclosure of them, so that the voters can assess the conduct and judgment of the receiving official.

While members of the Task Force felt strongly that sanctions should be available for violations of the Countys ethics guidelines, all agreed that sanctions should be created only if necessary and that new agencies should not be created unless absolutely necessary. To that end, the sanctions section of the proposed guidelines puts primary emphasis on existing sanctionsthe ability to discipline or fire county employees and the ability of the Board to censure its members for violations of the ethical guidelines. In addition, the proposed guidelines recommend a request to the state legislature to change state law to authorize the State Ethics Commission to enforce the Clark County Guidelines and to apply existing state sanctions (a schedule of fines) for violations of these local rules

The 2003 Task Force believes that the possibility of employment sanctions, including termination, will provide a strong incentive for senior employees to take seriously the proposed guidelines. The required disclosures and the possibility of censure by the Board should encourage elected officials to take these guidelines very seriously as well, for the ultimate sanction for an elected official is rejection by the voters at the next general or recall election.

The "cooling off" period provision requires a special sanction, however, since a person who is subject to that provision is, by definition, no longer an employee or elected official of the county. Thus, employment or censure sanctions are not likely to have great effect in this situation. Therefore, the 2003 Task Force proposes that if a person violates the cooling off period rules by representing others before County government during the proscribed period-- the Commission may vote to extend the "cooling off" period (as to the violator) for an additional six months for each violation. Such a vote would be, of course, in a public hearing at which the alleged violator would have a right to be heard, to be represented by counsel and to otherwise receive due process in the matter.

As did the 1998 Task Force, we advocate developing a program for educating County officials and employees about the ethics matters covered by the proposed Guidelines. A separate memorandum on this subject, authored by Professor Walton and endorsed by the 2003 Task Force, is attached as Exhibit B.

Finally, Some of the County Commissioners are subject to ethical rules that go beyond the countys Guidelines. For example, those who are attorneys must deal with the ethical rules of the State Bar of Nevada, which can result in disqualification for "imputed" conflicts of interest. Such imputation is significant in the case of so-called "manufactured" conflicts. While the Guidelines proposed here would allow an attorney/commissioner to act in the case of such a manufactured conflict, the State Bar rules might not allow such action. Thus, we recommend that officials of the County engage the State Bar in a dialog about the possible revision of these rules to lessen, in appropriate cases, the need for disqualification in the case of manufactured or other imputed conflicts.

The rules that we propose are, we think, consistent with the above statement of principles. We hope that the proposals are helpful to you. We thank you for the opportunity to be of service to the County.

Richard J. Morgan, Chair                                  Betty Pardo

            E. Lee Bernick                                                  Deborah Campbell

        Craig Walton                                                      Randy Capurro

David Griego                                                      John Hiatt

            Mujahid Ramadan                                              Danny Thompson

If you have questions, you may e-mail us at atr@co.clark.nv.us