With certain exceptions, the Nevada Ethics in Government Law (Ethics Law) governs the conduct of public officers and employees and, in certain situations, 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 (Ethics Commission), 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 Ethics Commission is authorized to issue advisory opinions requested by current and former public officers and employees who are: (1) seeking guidance on matters which directly relate to the propriety of their own past, present or future conduct under the statutory ethical standards; or (2) requesting relief from certain provisions of the Ethics Law that allow the Ethics Commission to grant such relief. (NRS 281A.670-281A.690) The Ethics Commission is also authorized to issue opinions in response to ethics complaints filed with or initiated by the Ethics Commission regarding the propriety of the conduct of current and former public officers and employees under the statutory ethical standards. (NRS 281A.700-281A.790)
Sections 2-54 of this bill amend the Ethics Law by clarifying, revising and adding to existing provisions which govern: (1) the operation, powers, functions and duties of the Ethics Commission, its members and staff and any specialized or local ethics committees; (2) the statutory ethical standards that apply to the conduct of current and former public officers and employees; and (3) the proceedings concerning requests for advisory opinions and ethics complaints and the issuance of opinions and the imposition of remedies and penalties by the Ethics Commission.
Sections 3, 8, 9, 12, 20-24 and 26-28 of this bill make various changes to existing provisions of the Ethics Law which govern the operation, powers, functions and duties of the Ethics Commission, its members and staff and any specialized or local ethics committees. (NRS 281A.200-281A.350) Under the Ethics Law, the Ethics 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 3 and 20 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 Ethics Commission under certain circumstances. Section 27 of this bill additionally authorizes the administration of oaths by a member of the Ethics Commission when appointed by the Chair to preside over any meetings, hearings or proceedings and by a certified court reporter. Section 27 also specifically authorizes the Chair to issue a subpoena during the course of an investigation for information, records and documentation regarding confidential personnel records maintained by a state or local governmental agency that relate to issues under consideration in an ethics complaint. Under section 47 of this bill, these records are made part of the investigative file. Section 27 further provides that any court proceeding commenced relating to a subpoena is deemed good cause for the Ethics Commission to grant an extension of the time limits that apply to proceedings concerning ethics complaints.
The Ethics Law requires the Chair to appoint review panels, consisting of three members of the Ethics 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 Ethics Commission to render an opinion in a matter, the members of the review panel generally cannot participate in any further proceedings of the Ethics Commission relating to that 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 21 of this bill allows one or more members of the review panel, with the consent of the parties, to participate as mediators or facilitators in any settlement negotiations between the parties that are conducted in the proceedings before the Ethics Commission holds an adjudicatory hearing in the matter.
Under the Ethics Law, the Ethics Commission may conduct investigations and proceedings and secure the participation and attendance of witnesses and the production of any books and papers. (NRS 281A.290, 281A.300) Section 8 requires public officers and employees to cooperate with the Ethics Commission in its investigations and proceedings and to furnish information and reasonable assistance to the Ethics Commission, except to the extent that they are entitled to the protection of certain rights, privileges or immunities or any confidentiality or other protection recognized by law. Section 8 is modeled, in part, on similar provisions governing the Commission on Judicial Discipline. (NRS 1.460)
Section 12 authorizes the Ethics Commission to cooperate in investigations of other state and local governmental agencies to make appropriate referrals of ethics complaints.
The Ethics Law requires the Ethics Commission to appoint and prescribe the duties of the Commission Counsel who is the legal adviser to the Ethics Commission and who, in most cases, is directed by the Ethics Commission to act as legal counsel in any litigation in which the Ethics Commission or its members or staff are parties in an official capacity. (NRS 281A.250, 281A.260) Under Nevada's Open Meeting Law, the Ethics 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) Existing law authorizes a public body to delegate authority to the chair or the executive director of a public body, or an equivalent position, to make any decision regarding litigation concerning any action or proceeding in which the public body or any member or employee of the public body is a party in an official capacity or participates or intervenes in an official capacity. (NRS 241.0357)
Section 9 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 Ethics Commission involving: (1) any decisions in litigation concerning any judicial action or proceeding 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 to the Chair or the Executive Director, or both. Section 114 of this bill makes a conforming change to the Open Meeting Law.
Section 24 of this bill specifies the powers and duties of the Commission Counsel regarding any litigation in which the Ethics Commission or its members or staff are parties in an official capacity. Section 24 clarifies that the Commission Counsel does not represent the interests of the Executive Director in a judicial action or proceeding in which the Executive Director is named as a party based on the conduct of the Executive Director in his or her official capacity as a party to an adjudicative proceeding.
Under the Ethics Law, the Ethics Commission is required to adopt procedural rules to carry out the functions of the Ethics Commission, accept acknowledgments of statutory ethical standards, conduct necessary investigations, recommend legislation to promote ethics in government and publish a manual explaining the Ethics Law. (NRS 281A.290) The Executive Director is required to conduct training on the requirements of the Ethics Law for public officers and employees. (NRS 281A.240) Section 26 of this bill replaces the requirement to publish a manual with a requirement to publish materials to educate public officers and employees on the requirements of the Ethics Law.
Under the Ethics Law, a specialized or local ethics committee may: (1) establish its own code of ethical standards suitable for the particular ethical problems encountered in its sphere of activity; and (2) render opinions upon the request of public officers and employees subject to its jurisdiction seeking an interpretation of its own ethical standards on certain questions. However, a specialized or local ethics committee may not attempt to interpret or render an opinion regarding the statutory ethical standards subject to the jurisdiction of the Ethics Commission, but it may refer such questions to the Ethics Commission. (NRS 281A.350) Section 28 of this bill clarifies the circumstances when such questions may be referred to the Ethics Commission as a request for an advisory opinion. Section 28 also makes conforming changes to ensure consistency with the other revisions that this bill makes to the Ethics Law. Section 28 of this bill also removes the authority of a specialized or local ethics committee in existing law to require the filing of financial disclosure statements if the form has been approved by the Secretary of State. Section 1 of this bill makes a conforming change related to the removal of this authority.
The Ethics Law establishes statutory ethical standards that are intended to enhance the people's faith in the integrity and impartiality of public officers and employees by requiring appropriate separation between the roles of persons who are both public servants and private citizens in order to avoid conflicts between their private interests and the interests of the general public whom they serve. (NRS 281A.020, 281A.400-281A.550) Sections 6, 7, 10, 16 and 29-33 of this bill make various changes to the statutory ethical standards.
Sections 6 and 7 restate more clearly the existing scope of the statutory ethical standards and their applicability to the conduct of current and former public officers and employees. Section 7 also codifies the existing rule of construction that the standards are cumulative and supplement each other and all such standards are enforceable to the extent that they apply to the given set of facts and circumstances.
The Ethics Law prohibits public officers and employees from engaging in certain unethical conduct that benefits themselves, any business entities in which they have a significant pecuniary interest or any persons to whom they have a commitment in a private capacity. (NRS 281A.400, 281A.420) The Ethics 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 16 makes technical revisions to the definition of “commitment in a private capacity” that do not change its substantive meaning.
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 entities in which they have a significant pecuniary interest or any persons to whom they have a commitment in a private capacity. (NRS 281A.400) Section 10 adds to the statutory ethical standards by prohibiting public officers and employees from using their position or power in government to take any actions or compel a subordinate to take any actions that a reasonable person would find, based on the given set of facts and circumstances, to be a gross or unconscionable abuse of official position or power that would undermine the integrity or impartiality of a reasonable person in the public officer's or employee's position under the same or similar facts and circumstances. However, the prohibition in section 10 does not apply to any allegations claiming only bias, error or abuse of discretion in any actions taken by public officers and employees within the normal course and scope of their position or power in government.
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 29 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 29 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 29 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.
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 31 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 as a result of a bona fide relationship that protects the confidentiality of the information under the terms of a contract or as a matter of law, such as the attorney-client relationship, if they: (1) disclose all nonconfidential information and describe the general nature of the protected relationship; 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 31 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 Ethics Commission to grant relief from the strict application of the prohibition in specified circumstances. (NRS 281A.550) Section 33 of this bill provides that 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. Section 33 also provides that the “cooling-off” period applies when certain current and former public officers and employees are or were materially involved in the implementation, management or administration of certain contracts awarded by their employing agencies.
The Ethics Law requires public officers to execute and timely file with the Ethics Commission written acknowledgments that they have received, read and understand the statutory ethical standards and that they have a responsibility to become familiar with any amendments to those standards. (NRS 281A.500) Section 11 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 must file the written acknowledgment of the statutory ethical standards; and (2) submit the list annually to the Ethics Commission. Under existing law, these same appointing authorities and administrative officials must compile and submit a similar list annually to the Secretary of State concerning public officers who must file financial disclosure statements with the Secretary of State. (NRS 281.574)
The Ethics Law contains existing provisions which govern the proceedings concerning requests for advisory opinions and ethics complaints and the issuance of opinions and the imposition of remedies and penalties by the Ethics Commission. (NRS 281A.665-281A.790) Sections 4, 5, 14, 15, 17, 18, 19, 25 and 34-54 of this bill make various changes to these existing provisions.
Under the Ethics Law, the Ethics Commission issues opinions interpreting the statutory ethical standards and applying those standards to a given set of facts and circumstances. (NRS 281A.680, 281A.710) The Ethics Law also directs the Legislative Counsel to prepare annotations of the Ethics Commission's published opinions for inclusion in the Nevada Revised Statutes. (NRS 281A.290) Section 5 defines “published opinion” as an opinion issued by the Ethics Commission that is publicly available on the Internet website of the Ethics Commission. Sections 26 and 34 of this bill move and recodify within the Ethics Law the existing provision that directs the Legislative Counsel to prepare annotations of the Ethics Commission's published opinions for inclusion in the Nevada Revised Statutes.
The Ethics Law authorizes public officers and employees to file with the Ethics Commission requests for advisory opinions to: (1) seek guidance relating to the propriety of their 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 35 of this bill authorizes the Ethics Commission to request additional information relating to the request for an advisory opinion from the requester or his or her legal counsel.
If the requester properly files a request for an advisory opinion, the Ethics Law requires the Ethics Commission to render an advisory opinion in the matter within a certain time limit after receiving the request, unless the requester waives the time limit. (NRS 281A.680) Sections 25 and 36 of this