Judge’s ruling limits sway of state ethics panel

CARSON CITY -- The Nevada Ethics Commission has no legal authority to hear complaints filed by residents against state legislators, a judge ruled Tuesday.

District Judge William Maddox determined that the Ethics Commission is an agency of the executive branch of government and that under the separation-of-powers doctrine cannot intercede in matters pertaining to the legislative branch.

"Each house of the Legislature has the exclusive power to determine the rules of its legislative proceedings and punish its members for improper conduct relating to those legislative proceedings" under a clause in the state constitution, the ruling said.

The ruling cancels an Ethics Commission hearing on a complaint filed against state Sen. Warren Hardy, R-Las Vegas.

Ethics Commission Executive Director Patty Cafferata has announced the commission will appeal the decision to the state Supreme Court.

She said the commission over the years has heard 19 complaints against legislators without a murmur that it had no authority to do so.

Maddox's decision was not unexpected. He ruled from the bench a month ago that the Ethics Commission could not handle complaints against legislators.

Deputy Legislative Counsel Kevin Powers said bills will be introduced at the 2009 session of the Legislature to create a committee in which legislators or people they designate would hear complaints filed against lawmakers.

He compared the situation to the judiciary branch. Complaints against judges are heard by the Judicial Discipline Commission, not the Ethics Commission.

Powers said the Legislature takes the position that the Ethics Commission still can hear complaints against legislators except when the complaint concerns their core duty, which is voting on bills.

He does not contest the decision years ago to fine then-state Sen. Sandra Tiffany, R-Henderson. She paid a $10,000 fine after admitting she used her position as a legislator to benefit her private online sales business. She lost her bid for re-election in 2006 before the decision was made but after the complaint was filed.

After being told of Maddox's decision Tuesday, Tiffany said she will contact her lawyer and see whether her admission can be withdrawn on the grounds the Ethics Commission should not have heard her case.

"I want to be vindicated," Tiffany said.

But Maddox agreed with Powers' view the commission still can handle cases that do not involve voting by legislators.

The judge said legislators have immunity from Ethics Commission investigations only on "actions that fall within the sphere of legitimate legislative activity," such as "voting and participation on a legislative matter."

Powers' research found that in eight incidents, most recently in 1995, the ethics panel investigated complaints about voting by legislators.

But in each case, the commission threw out the complaint, Powers said.

While legislators could have argued they were immune from punishment by the panel, Powers said, they chose not to raise that defense.

Henderson resident Richard B. Miller filed a complaint against Hardy with the Ethics Commission in the spring and alleged that the senator repeatedly broke laws by not abstaining from voting on matters that helped his employer, Associated Builders and Contractors. He is president of the organization.

While dropping 11 of the 12 charges against Hardy, the commission ruled sufficient cause existed to conduct a full hearing on whether he broke laws by voting in 2007 on Senate Bill 509. The hearing was set for early December.

The bill would have required contractors to pay more money to workers on some projects.

After the bill was defeated, Hardy sent a letter to ABC-Las Vegas members "trumpeting" the defeat of the bill.

Hardy said he was permitted to vote on matters involving ABC based on what he was told by legislative lawyers.

Nevada has a citizen Legislature where most members hold outside jobs, Hardy said Tuesday. Every member sometimes votes on matters that affect his outside employer or himself, he said.

But under state law, legislators can vote on such matters if the bills in question do not give them or their employers a benefit greater than similar employees and employers.

"We have schoolteachers who vote for their own raises because it doesn't impact them more than other schoolteachers," Hardy said.

He said that at the start of each session, he follows legislative legal counsel advice and files a public notice identifying his employer. He said he twice announced aloud that SB509 would affect ABC.

Powers agreed Hardy did follow the advice of legislative lawyers and was permitted to vote on the bill in question.

On another bill, considered at the Dec. 8 special session, Hardy said he announced that the ABC was his employer. He then abstained from voting on a measure that reduced the fees businesses receive for collecting taxes for the state.

Hardy said he abstained because at that time, Maddox had not issued a written decision. The bill affected builders and contractors, but not more than other businesses.

"I abstained out of an abundance of caution," Hardy said.

Contact Capital Bureau Chief Ed Vogel at evogel@reviewjournal.com or 775-687-3901.