Legislative lawyer: Ethics panel lacks authority in case

CARSON CITY -- Legislative lawyers said Thursday that they might file a lawsuit against the Nevada Ethics Commission if it tries to discipline state Sen. Warren Hardy over a vote he made during the 2007 Legislature.

Attorney Kevin Powers said the Ethics Commission cannot hear cases related to the "core legislative function" of legislators because lawmakers are entitled to "legislative immunity."

Powers said that under the separation of powers doctrine, the Legislature is a separate branch of government and the Ethics Commission is part of the executive branch of government.

As a result, he said the commission lacks the legal authority to tell members of another branch whether they properly disclosed potential conflicts of interest before voting on bills.

This immunity extends only to issues on voting, Powers said.

Powers' comments provoked a strong reaction from Ethics Commission members.

Chairman Mark Hutchison pointed out that the commission has made 19 rulings in cases involving legislators since 1985.

"Could it be the Legislature (which passed laws creating the Ethics Commission) wanted this body to have jurisdiction over the Legislature?" he asked.

Powers said legislators probably did not assert their right of legislative immunity at those earlier hearings.

He said it was correct for the Ethics Commission to punish former state Sen. Sandra Tiffany, R-Henderson, in 2006 when she admitted she used her position as a lawmaker to gain information about online government auctions in other states to benefit her own business. That issue did not deal with voting, he said.

Tiffany was fined $10,000.

Powers maintained that legislators still can be punished by either the Senate or Assembly if they fail to follow legislative voting rules.

Members of the Ethics Commission, however, refused to dismiss entirely a complaint against Hardy, R-Las Vegas, based on Powers' argument.

As a result, Legislative Counsel Brenda Erdoes said after the meeting that they might challenge the commission's decision in District Court or the Supreme Court.

Hardy said the legislative immunity issue "goes way beyond me" and that he always has followed the legislative attorneys' advice before voting on bills.

The commission did throw out one of two remaining charges against Hardy after the legislative lawyers pointed out that a vote he made three years ago could not be considered, since there is a two-year statute of limitations.

Henderson resident Richard B. Miller in March filed a complaint with the Ethics Commission alleging Hardy "repeatedly and inappropriately" voted on bills that benefited him and his employer, the Associated Builders and Contractors of Las Vegas, without disclosing his financial interest in the legislation. Hardy is president of the company that represents contractors.

At a hearing in December, the commission will decide whether Hardy violated ethics laws by not abstaining from voting or adequately disclosing his financial interest in Senate Bill 509, which would have required contractors to pay more money to workers on some projects.

Miller, who lives in Hardy's district, alleged in his complaint that Hardy had sent out a letter "trumpeting" ABC's defeat of SB509 during the 2007 legislative session.

Laws forbid legislators from using their positions to gain unwarranted advantages for themselves or their employers.

In a brief to the Ethics Commission, legislative attorneys said Hardy properly followed their advice on voting. The contractors he represents in his private job would not have been affected any differently than contractors he does not represent, according to the lawyers.

In an interview, Powers said the legislators' right to discipline their own members is not any different than how complaints are handled in the judicial branch of government.

He said the state Ethics Commission does not discipline judges. Instead the state Commission on Judicial Discipline was created with the judicial branch of government to handle complaints against judges.

But in his 12 years as a legislative lawyer, Powers said he does not remember the Legislature disciplining any legislator over voting matters.

He said someone would have to bring a complaint against a legislator to trigger a hearing on whether the legislator did something improper.

"It is not a shocking new concept," Powers said about legislative immunity. "They don't escape punishment, but the body entitled to punish them is not the Commission on Ethics, but the legislator's own house."

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