With certain exceptions, the Nevada Ethics in Government Law (Ethics Law) governs the conduct of public officers and employees and, in certain circumstances, former public officers and employees after the end of their period of public service or employment. The Ethics Law is carried out and enforced by the Commission on Ethics, which is authorized to issue opinions interpreting the statutory ethical standards established by the Ethics Law and applying those standards to a given set of facts and circumstances. The Ethics Law also authorizes any state agency or the governing body of a county or city to establish a specialized or local ethics committee to complement the functions of the Ethics Commission. (Chapter 281A of NRS)
Under the Ethics Law, the Commission is required to annually elect a Chair and Vice Chair who are assigned certain powers, functions and duties. (NRS 281A.210, 281A.220, 281A.240, 281A.300) Sections 2 and 17 of this bill provide for the Chair's powers, functions and duties to be assigned for a particular matter to the Vice Chair or another member of the Commission under certain circumstances. Section 17 also specifies that the Chair and Vice Chair be elected at the first fiscal meeting of each year. Section 8 of this bill authorizes the Chair, with certain exceptions, to grant not more than one extension of any time limit set forth in the Ethics Law, but the Chair cannot grant an extension of any time limit in the statute of limitations. Sections 31, 35 and 37-39 of this bill make conforming changes consistent with the authority of the Chair to grant the authorized extensions.
Sections 3-5 of this bill define certain terms relating to proceedings before the Commission and the statutory ethical standards established by the Ethics Law. Sections 10, 14 and 46 of this bill make conforming changes to incorporate these definitions into the chapter.
Section 6 of this bill: (1) restates more clearly the existing scope and applicability of the statutory ethical standards to the conduct of current and former public officers and employees; and (2) codifies the existing rule of construction that the standards are cumulative and supplement each other.
Under Nevada's Open Meeting Law, the Commission may receive information regarding any litigation from its legal counsel and deliberate toward a decision regarding the litigation without holding a public meeting that complies with the Open Meeting Law. (NRS 241.015) Section 7 of this bill provides that during any period in which proceedings concerning a request for an advisory opinion or an ethics complaint are confidential under the Ethics Law, the Open Meeting Law does not apply to any meetings, hearings, deliberations or actions of the Commission involving: (1) any decisions in litigation related to the request for an advisory opinion or the ethics complaint; and (2) any delegation of authority to make such decisions in the litigation. Section 107 of this bill makes a conforming change to indicate this additional exception to the Open Meeting Law.
The Ethics Law requires public officers to execute and timely file with the Commission written acknowledgments that they have received, read and understood the statutory ethical standards and that they have a responsibility to become familiar with any amendments to those standards. (NRS 281A.500) Section 9 of this bill requires the appropriate appointing authorities and administrative officials at the state and local level to: (1) compile a list of the public officers within their purview who are required to file the written acknowledgment of the statutory ethical standards; and (2) submit the list annually to the Commission.
Under the Ethics Law, the Commission is authorized to make a decision relating to a matter or proceeding before the Commission and provide a written advisory opinion or written opinion in response to an ethics complaint. (NRS 281A.670-281A.760) Sections 11, 12, 15, 18, 19, 22, 24, 26, 28, 30-32, 34, 36-41 and 47 of this bill make various changes to distinguish between rendering a decision and issuing a written advisory opinion or issuing an opinion in response to an ethics complaint.
The Ethics Law prohibits public officers and employees from engaging in certain unethical conduct, including conduct that benefits any persons to whom they have a commitment in a private capacity. (NRS 281A.400, 281A.420) Existing law defines the persons to whom public officers and employees have a “commitment in a private capacity” to include: (1) the spouse or domestic partner of the public officer or employee, any member of his or her household or any relative within the third degree of consanguinity or affinity; (2) any person who employs the public officer or employee, his or her spouse or domestic partner or any member of his or her household; (3) any person with whom the public officer or employee has a substantial and continuing business relationship; or (4) any person with whom the public officer or employee has any other commitment, interest or relationship that is substantially similar to the foregoing commitments, interests or relationships. (NRS 281A.065) Section 13 of this bill makes technical revisions to the definition of “commitment in a private capacity” that do not change the substantive meaning of the term.
The Ethics Law requires the Chair to appoint review panels, consisting of three members of the Commission to review ethics complaints during the investigatory stage of the proceedings, and if a review panel determines that there is just and sufficient cause for the Commission to render an opinion in a matter, the members of the review panel generally cannot participate in any further proceedings of the Commission relating to the matter. (NRS 281A.220) However, the Ethics Law allows the members of the review panel to authorize the development of and approve a deferral agreement in the proceedings. (NRS 281A.730) Section 18 of this bill also allows one or more members of a review panel to participate as mediators or facilitators in any settlement negotiations with the consent of the parties during a specified period.
The Ethics Law requires the Commission to appoint and prescribe the duties of the Commission Counsel, who is the legal advisor to the Commission and generally acts as legal counsel in any litigation in which the Commission or its members or staff are parties in an official capacity. (NRS 281A.250, 281A.260) Section 20 of this bill: (1) specifies the powers and duties of the Commission Counsel regarding any litigation in which the Commission or its members or staff are parties in an official capacity; and (2) clarifies that the Commission Counsel does not represent the interests of the Executive Director of the Commission in a judicial action or proceeding in which the Executive Director is named as a party to the action or proceeding based on the conduct of the Executive Director in his or her official capacity as a party to an adjudicative proceeding.
The Ethics Law sets forth the jurisdiction of the Commission to investigate and take action regarding an alleged violation of the Ethics Law in any proceeding commenced by an ethics complaint if the ethics complaint is filed or initiated within 2 years after the alleged violation or reasonable discovery of the alleged violation. (NRS 281A.280) Section 21 of this bill similarly provides that the Commission has jurisdiction to gather information and issue an advisory opinion regarding past conduct that has occurred within 2 years before the date on which the request for an advisory opinion is filed.
The Ethics Law authorizes the Commission to impose certain penalties, fees and costs against a person who prevents or interferes with, or attempts to prevent or interfere with, any investigation or proceeding under the Ethics Law or the discovery of a violation of the Ethics Law. (NRS 281A.790) Section 21 of this bill provides that the Commission has jurisdiction to investigate and take appropriate action regarding such an alleged violation in any proceeding commenced by a written notice of the charges within 2 years after the alleged violation or reasonable discovery of the alleged violation.
Existing law requires the Commission to publish a manual explaining the Ethics Law. Section 22 of this bill replaces this requirement with a requirement to publish materials to educate public officers and employees on the Ethics Law.
Section 23 of this bill: (1) authorizes the administration of oaths by a member of the Commission when appointed by the Chair to preside over any meetings, hearings or proceedings or by a certified court reporter; (2) authorizes the Chair to issue a subpoena during the course of an investigation for certain information; and (3) provides that any court proceeding commenced relating to a subpoena is deemed good cause for the Chair to grant an extension of the time limits that apply to proceedings concerning ethics complaints.
The Ethics Law prohibits public officers and employees from using governmental time, property, equipment or other facility to benefit a significant personal or pecuniary interest of the public officers and employees or any persons to whom they have a commitment in a private capacity. The Ethics Law also contains certain limited-use exceptions that allow a limited use of governmental property, equipment or other facility for personal purposes if the limited use meets certain requirements. (NRS 281A.400) Section 25 of this bill revises these prohibitions and limited-use exceptions in several ways.
First, one of the existing requirements for the limited-use exceptions is that the public officer or employee who is responsible for and has authority to authorize the limited use for personal purposes must have established a policy allowing the limited use. (NRS 281A.400) Section 25 clarifies the exception by providing that the limited use must be authorized by a written policy which was adopted before the limited use occurs.
Second, one of the existing requirements for the limited-use exceptions is that the limited use for personal purposes must not create the appearance of impropriety. (NRS 281A.400) Section 25 defines the term “appearance of impropriety” to mean a reasonable person would find, based on the given set of facts and circumstances, that the limited use for personal purposes is inappropriate, disproportionate, excessive or unreasonable under that given set of facts and circumstances.
The Ethics Law prohibits public officers and employees from using their position in government to secure or grant any unwarranted privileges, preferences, exemptions or advantages for themselves, any business entity in which they have a significant pecuniary interest or any person to whom they have a commitment in a private capacity. (NRS 281A.400) Section 25 also adds to the statutory ethical standards a prohibition against public officers and employees using their position or power in government to take actions or compel a subordinate to take any actions that would cause unwarranted harm or damage to another person to benefit a significant personal or pecuniary interest of the public officer or employee or any person to whom the public officer or employee has a commitment in a private capacity.
With certain exceptions, the Ethics Law prohibits public officers and employees from acting upon a matter in which their personal or private interests may create potential conflicts of interests unless, at the time the matter is considered, they make a disclosure that is sufficient to inform the public of their potential conflicts of interests. (NRS 281A.420) Section 27 of this bill provides that, when public officers and employees make such a public disclosure, they are not required to disclose any information which is confidential under the terms of a contract or as a matter of law, such as a result of an attorney-client relationship, if they: (1) disclose all nonconfidential information and describe the general nature of the contract or law; and (2) abstain from acting upon the matter.
The Ethics Law allows certain public officers to represent or counsel private persons for compensation before state or local agencies in which they do not serve. In addition, although the Ethics Law requires public officers to disclose such private representation or counseling when it may create potential conflicts of interests with their public duties, they are not required to abstain from acting on a matter because of those potential conflicts of interests. (NRS 281A.410, 281A.420) Section 27 requires public officers to abstain from acting on a matter under certain circumstances when such private representation or counseling results in conflicts of interests with their public duties.
The Ethics Law prohibits certain former public officers and employees, for a 1-year “cooling-off” period after the termination of their public service or employment, from soliciting or accepting private employment from any entities regulated or awarded certain contracts by the agencies that employed the former public officers and employees. However, the Ethics Law also allows the Commission to grant relief from the strict application of the prohibition in specified circumstances. (NRS 281A.550) Section 28 provides that: (1) certain current and former public officers and management-level public employees are subject to the “cooling-off” period both during and after their public service or employment and cannot solicit or accept private employment from such entities under similar circumstances; and (2) the “cooling-off” period applies when certain current and former public officers and employees are or were in positions to materially affect or influence the awarding, renewing or amending of certain contracts by their employing agencies because they had the authority or responsibility to recommend, advise, negotiate, develop, draft, revise, review or approve any material terms of the contracts. In certain situations where current or former public officers and employees are alleged to have violated the “cooling-off” period, section 45 of this bill provides that the Commission must consider certain factors relating to the comparative value of the contract under the given set of facts and circumstances in assessing the severity of the violation and any penalties.
Under the Ethics Law, the Legislative Counsel is required to prepare annotations to the Commission's published opinions for inclusion in the Nevada Revised Statutes. (NRS 281A.290) Sections 22 and 29 of this bill move and recodify this requirement.
The Ethics Law authorizes a public officer or employee to file with the Commission a request for an advisory opinion to: (1) seek guidance relating to the propriety of his or her own past, present or future conduct under the statutory ethical standards; or (2) request relief from the strict application of certain provisions of the Ethics Law. (NRS 281A.675) Section 16 of this bill deletes duplicative provisions from the definition of a “request for an advisory opinion.” Section 30 authorizes the Commission to request additional information relating to the request for an advisory opinion from the requester or his or her legal counsel.
With certain exceptions, the Commission is subject to the Open Meeting Law, which generally requires most meetings of public bodies to be open to the public. (Chapter 241 of NRS) However, under the Ethics Law, the Open Meeting Law does not apply to meetings, hearings, deliberations and actions of the Commission relating to requests for advisory opinions, although the requester of the advisory opinion may file a request with the Commission to hold a public meeting or hearing regarding the matter. (NRS 281A.690) Section 33 of this bill requires the requester to acknowledge his or her waiver of confidentiality in the request. Section 33 also provides that if the Commission grants such a request for a public meeting or hearing regarding the matter, the Commission must provide public notice of the meeting or hearing and the meeting or hearing must be open to the public and conducted in accordance with the regulations of the Commission, but the meeting or hearing is not subject to specific requirements of the Open Meeting Law.
In addition to rendering advisory opinions, the Commission is also authorized by the Ethics Law to render opinions regarding the propriety of the conduct of public officers and employees under the statutory ethical standards in response to ethics complaints filed by a specialized or local ethics committee or a person or initiated by the Commission on its own motion. (NRS 281A.710) Section 34 of this bill authorizes the Executive Director to conduct a preliminary investigation into the propriety of the conduct of a public officer or employee to determine whether the Commission has jurisdiction and whether the Commission should initiate an ethics complaint on its own motion.
Not later than 45 days after receiving an ethics complaint, the Ethics Law requires the Commission to determine initially whether it has jurisdiction over the ethics complaint and whether an investigation is warranted in the matter, unless the subject of the ethics complaint waives the time limit. (NRS 281A.715) Section 35 authorizes the Executive Director, during this initial period, to conduct a preliminary investigation to obtain additional information concerning the allegations in the ethics complaint to assist the Commission in making its initial determination. In addition, section 35: (1) eliminates, as unnecessary, the provision authorizing the subject to waive the time limit because the subject does not receive notice of the matter during this initial period, but only receives notice of the matter if the Commission determines that it has jurisdiction and an investigation is warranted; and (2) allows the Commission to dismiss an ethics complaint initiated on its own motion if it determines that the evidence is not sufficient to warrant an investigation in the matter.
Under the Ethics Law, if the Commission determines that it has jurisdiction over an ethics complaint and an investigation is warranted, the subject of the ethics complaint is served with a notice of the investigation and provided with an opportunity to submit a response to that notice. (NRS 281A.720) Section 36 authorizes the Executive Director to grant, under certain circumstances, one or more extensions of the time limit to submit the response, but the Executive Director must set a specific and reasonable time period for such an extension.
As part of the investigation, the Ethics Law permits the Executive Director to secure the subject's participation, attendance as a witness or production of books and papers under existing procedures. (NRS 281A.300) Section 36 clarifies that, regardless of whether the subject submits a response to the investigation, the Executive Director retains the authority during the course of the investigation to secure the subject's participation, attendance as a witness or production of books and papers under those existing procedures or any other law that provides such authority.
Under the Ethics Law, a review panel is required to determine whether there is just and sufficient cause for the Commission to render an opinion in the matter. (NRS 281A.730) Section 38 of this bill requires that, after the review panel makes its determination, the review panel must serve a written notice of its determination on the public officer or employee who is the subject of the ethics complaint.
The Ethics Law establishes various requirements regarding the adjudication of ethics complaints referred to the Commission for further proceedings. (NRS 281A.745-281A.760) Section 39 requires: (1) the Executive Director to issue a formal notice of charges to the subject of the ethics complaint regarding the allegations to be presented