Legal experts question charge against Henderson councilwoman, censure of her

Henderson Councilwoman Carrie Cox is being prosecuted under a rarely used state law that some legal experts find problematic.

Attorneys also raise concerns about the rationale behind the Henderson City Council’s decision to censure Cox.

Cox was indicted Nov. 5 on a felony count of monitoring or attempting to monitor a private conversation.

Prosecutors say she hid behind a curtain in Henderson City Hall earlier this year and recorded a conversation between rival Councilwoman Monica Larson, a real estate broker and a developer.

District Attorney Steve Wolfson, whose office is handling the case, only knows of two or three times that the charge Cox faces was prosecuted in the last five years, according to a spokesperson.

Former District Attorney David Roger said the charge is rarely prosecuted.

“I don’t know that it has a lot of prosecutorial merit,” Roger said. “You take this case to a jury, you might win the case 50, 60 percent of the time. The other percentages of time, a jury might just say, ‘So what? Why is this a crime? And is this a politically motivated prosecution?’”

He added: “Based upon the evidence as I understand it, it does appear to be a politically motivated charge, and I’m not suggesting that it is the prosecution that is involved in this,” but that the case involves politicians who appear to have a dispute.

Cox, who has had conflict with other city leaders in the past, was censured by the council at a special meeting on Monday.

In addition to the written reprimand, the resolution removes Cox from community boards and allows her to communicate only with the city manager, city attorney and city clerk.

Larson told reporters that Cox’s censure was based on a laundry list of uncharged allegations in a Metropolitan Police Department report, including that Cox ran an unlicensed child care business, interfered in Henderson police matters and regularly leaked information to journalists.

Longtime defense lawyer Dominic Gentile said the First Amendment guards the right to talk to the media.

Censuring someone for constitutionally protected conduct is “wrong,” Gentile said, and “flies right in the face of protected speech.”

Recording law

“There’s two areas that very rarely ever get prosecuted in Nevada,” said Richard Wright, a veteran defense attorney. One is false testimony in civil and family court cases. “And the other thing is you very rarely ever see a prosecution like this of someone saying essentially, they eavesdropped, unless it’s something like planting an illegal wiretap.”

Wright recalls the issue coming up during the yearslong Culinary union strike at the Frontier Hotel.

Hotel management had set up microphones on the edge of the sidewalk where picketing Culinary Local 226 and Bartenders Local 165 union members were marching, according to the attorney.

“There were microphones recording their conversations as they picketed and the unions found out about it and wanted to get the Frontier management, whoever was responsible for it, prosecuted for eavesdropping on their conversations,” said Wright, who represented the Frontier.

But no one was prosecuted, he said.

“In a public area, there’s no constitutional expectation of privacy,” said Wright.

Was this a private conversation?

Roger said Cox apparently violated the law if she was hiding behind a curtain and the people having the conversation didn’t know she was present and recording them.

But he also expects Cox’s defense will focus on whether the conversation at issue was really private.

The Nevada law under which Cox is charged specifies that it deals with “any private conversation.”

But “(t)he term ‘private conversation’ as used in the statute is not expressly defined and there appears to be no Nevada law interpreting the term,” noted a 2014 Nevada attorney general’s office opinion.

“You have people in a public area talking and someone listened to it and recorded it,” said Wright of the allegations in Cox’s case. “I don’t think there’s any expectation of privacy there, and I don’t think there’s any offense that was committed.”

Benjamin Lipman, the Las Vegas Review-Journal’s chief legal officer, said the statute prohibiting the monitoring of private conversations seems unconstitutionally overbroad.

In addition, he said, it would be unconstitutional to punish a person for recording a conversation in public using a device that picked up no more of a conversation than people expect could be heard by others using just their ears.

Censure of Cox

Mayor Michelle Romero in a statement Friday reasserted what Larson said Tuesday: that Cox’s censure was the result of Metro’s report.

“This censure was the Council’s formal acknowledgement of the disapproval of behaviors, separate from the illegal recording, and actions identified in a thorough, 10-month investigation by the LVMPD,” Romero wrote in an email.

“The censure does not silence Councilwoman Cox,” Romero continued. “It serves to transparently address Councilwoman Cox’s misconduct.”

But Cox campaign consultant Lisa Mayo-DeRiso also said Friday the council’s censure resolution was being used as a political tool against Cox.

“Councilwoman Cox is being silenced,” Mayo-DeRiso wrote in an email, adding Cox still plans to meet with constituents and business applicants within her ward. “City Councilwoman Cox has a right to Freedom of Speech. The censure will not prevent her from speaking to the media.”

Romero said Monday that Metro’s report showed that Cox regularly contacted journalists to share information, which Romero said violated city policy.

The City of Henderson Ethics Code states that a public servant cannot disclose confidential information “in any manner to any individual or business” without prior written authorization from the city attorney’s office, except as necessary to perform their official duties.

Sharing unauthorized information, according to Romero, puts “not only the city, but taxpayer dollars at risk for potential litigation.”

Cox’s defense attorney Josh Tomsheck wrote a letter to the Henderson City Council that took issue with the censure of his client.

“A ‘censure resolution’ like the one here is not something that has ever occurred in the context of a City Council meeting in the City of Henderson, or virtually anywhere else in the State of Nevada that I can identify,” he said in the letter. “The main reason this is such an anomaly is that the City Council has no authority to do what it is doing here.”

College of Southern Nevada history professor Sondra Cosgrove said while she thinks the council was within its rights to censure Cox, she worries the body is singling out Cox.

“Are we going to do this every time a member of the City Council does something? Because oftentimes, when you see this it is selectively applied,” Cosgrove said.

Gentile said the council was punishing Cox for being a source. Restricting her communications appears to be “intended to thwart her ability to report unlawful activity to the media,” he said.

Censuring someone, even in part, for being a source is “absolutely outrageous,” said Lipman, adding that transparency is a public good, not an act that should be punished.

Contact Noble Brigham at nbrigham@reviewjournal.com. Follow @BrighamNoble on X. Contact Casey Harrison at charrison@reviewjournal.com.