In his first two meetings as a new Nevada gaming commissioner, Las Vegas attorney Joe Brown declared he had conflicts 24 times and abstained from voting every time. Brown is probably being overcautious, based on an ethics opinion issued last year: He thought it’s better to disclose too much than too little.
However, there are unintended consequences.
The abstentions leave an impression that the new gaming commissioner, a partner in the large statewide Jones Vargas law firm, may not be able to adequately do the job Gov. Jim Gibbons appointed him to do.
If you abstain 12 votes out of 50, as Brown did in June, are you doing your job?
Brown abstained on votes involving Station Casinos and Harrah’s Entertainment, two biggies in Nevada gaming.
Brown said he had far more conflicts than he thought he’d have, far more than he told Gibbons he’d have, because he didn’t realize how much nongaming work his firm does for gaming clients, on top of all the gaming work.
It’s abundantly clear Gibbons made a mistake by not reappointing Brown to the Nevada Athletic Commission, where this would not have been an issue. Gibbons relied on bad advice (something he seems to do often) when he decided not to reappoint Brown to the athletic panel.
So the GOP governor tried to make it up by putting Brown on the Gaming Commission, which required Brown to resign from his prestigious political job as Nevada National Republican committeeman.
Yet another problem looms. What happens if there are so many conflicts among the five commissioners — four attorneys and one doctor — that there’s not three commissioners to make a quorum? That’s quite possible.
Gaming Commission Chairman Peter Bernhard, who recently switched law firms and may have more conflicts, said, if and when he’s faced with that problem, he’d have to call the attorney general for a solution. Bernhard left the Oregon-based firm of Bullivant Houser Bailey, which had no gaming clients, and recently joined Kummer Kaempfer. Bernhard expects to have more conflicts than he had in the past.
In the June meeting, Bernhard abstained once and attorney John Moran abstained twice (and one of those abstentions matched one of Brown’s 12 abstentions — the Indian Springs Casino). None of the recusals affected the outcome of a vote.
Brown is likely to abstain more than Bernhard because he’s a stakeholder in Jones Vargas, and Bernhard is "of counsel," which means he doesn’t get a financial benefit if his partners represent gaming companies.
Bernhard said he doesn’t have any conflicts with Station Casinos, but Chris Kaempfer has done some land use work for Harrah’s. So, Bernhard may have to disclose, but he should be able to vote since he’d receive no financial benefit.
Harrah’s has just contracted for a year with one of Brown’s partners, John Sande. So Brown’s conflict with Harrah’s remains problematic.
A 2008 ethics opinion broadened the ability of lawyers to vote if their partners represent a client who comes before the commission and the commissioner wouldn’t be "materially affected."
Brown was advised by the attorney general’s office that he could declare a conflict and vote if he was not personally involved. He’d have to decide if he would be "reasonably" or "materially" affected by his commitment to his law firm. (Of course, that’s not defined, it’s a judgment call.)
Instead, Brown decided to err on the side of caution, declare a conflict and not vote. Now he says he probably could have voted on half of the 24 votes in question based on the advice of the attorney general’s office.
Brown wanted to do the right thing and be aboveboard, and he should be commended.
He probably will be a fine gaming commissioner. He’ll be tough. After all, he’s the guy who once told boxing promoter Don King to sit down, shut up and don’t play the race card.
But Gibbons didn’t do Nevada any favors by putting someone on the gaming commission who gives the appearance of having so many conflicts.
Gibbons gave Brown a plum appointment to make up for his error in judgment in removing Brown from the athletic commission. He compounded one mistake with another.
Jane Ann Morrison’s column appears Monday, Thursday and Saturday. E-mail her at Jane@reviewjournal.com or call (702) 383-0275. She also blogs at lvrj.com/blogs/morrison/.