The end of the Nevada 2009 Legislature was marked by curious twists in legal ethics issues, including last-minute decisions that resulted in lawmakers voting on a crucial tax bill despite initial conflict concerns.
The state is one of only a few in the nation with "citizen legislatures," where lawmakers hold full-time jobs besides holding office. That invariably makes for conflicts, with lawyers handling bills that can affect clients, and many lawmakers disclosing ties to public employees before voting on bills dealing with those employees' salaries and benefits.
The biggest ethics clash came when two Republican senators, whose votes were critical in order to pass a $781 million tax package, were confronted with conflict-of-interest questions just days before the vote.
One was Sen. Warren Hardy, R-Las Vegas, who was faced with an ethics complaint that he shouldn't have voted on bills in the 2005 and 2007 sessions because of his connection with the Associated Builders and Contractors.
The issue was resolved when the Nevada Supreme Court upheld a lower court ruling that limited the state Ethics Commission's power to discipline lawmakers. Justices said the discipline of legislators is a constitutionally permitted function of the Legislature, and the power to discipline can't be delegated when a "core legislative function" such as voting is involved.
"They said on core legislative functions we do not have jurisdiction," said Patty Cafferata, head of the Ethics Commission.
The decision from the high court was issued the day before the critical tax vote, allowing senators to vote just in time.
Senate Minority Leader Bill Raggio, R-Reno, also cast what was seen as an essential vote to pass the tax measure. Raggio at first planned not to vote, but senators then adopted an exemption to the conflict rules.
Lorne Malkiewich, director of the Legislative Counsel Bureau, said he feels strongly that decisions on whether a lawmaker should vote should be left to the Legislature. He used Sen. Dean Rhoads, R-Tuscarora, a rancher, as an example.
"I would venture a guess that 95 percent of people in his district do not want him abstaining on rancher issues," Malkiewich said. "They want him to vote because they think he's the only one that understands them."
"In a citizen legislature, where they all have outside interests and jobs, if they are worried about whether they are going to go have to go before the Ethics Commission, they may feel too intimidated to vote," Malkiewich said.
Besides having the last say on ethics issues as they apply to voting, lawmakers in Nevada can look for wiggle room in opinions of their own legal counsel. That happened at the end of the session, when a last-minute amendment to a bill about stalking was presented. The amendment allowed smoking at tobacco trade conventions.
Initially, legal counsel opined that the amendment was not "germane" to the bill because it was about a different topic. But just hours later, after lawmakers requested it, the legal department said the amendment was germane to the bill.
"It happens all the time," Malkiewich said. "Every session you will have a couple of bills that people keep fighting right to the end. But it's up to the Legislature whether to follow the legal opinion or not."