Michael Carrigan, a member of the
City Council in Sparks, Nevada, “says he was trying to make sure his vote on a
proposed casino, one that his campaign manager helped develop, did not pose an
ethics problem.”[1]
Carrigan backed the Lazy 8 casino project proposed by Red Hawk Land Co.
Carrigan’s friend and campaign manager, Carlos Vasquez, worked as a consultant
on the project. The question is whether the elected official’s relationship to
his campaign manager who was a consultant on a project to be voted on constitutes
a conflict of interest sufficient for the official to have not voted. The Sparks city attorney told
Carrigan that he could vote on the project as long as he publicly disclosed his
relationship with the project consultant. The attorney was obviously thinking
in terms of transparency. Carrigan made the recommended disclosure. The Nevada
Ethics Commission, however, claimed after the vote that Carrigan had a conflict
of interest and should have abstained even with the transparency. In its reprimand, the commission
cited ethics law that says public officials must not vote when their judgment
could be affected by a commitment or relationship to someone in their
household, a relative, business partner, or a person “substantially similar” to
those specified. The commission classifies the campaign manager in the
“substantially similar” category because Carrigan’s loyalties to his campaign
manager would have affected his judgment. Caren Jenkins, executive director of
the Nevada Ethics Commission, explains, “Here was a friend, a buddy, a close
confidant. If Mr. Carrigan ever thought it was in his best interest to vote
against the project, would he have?”[2] Carrigan sued the commission for
its reprimand, claiming it violated his free speech rights. The Nevada Supreme
Court sided with Carrigan, who pointed to the fact that he was not in business
with his campaign manager. The Nevada Supreme Court said the catch-all category
the commission cited failed to “limit the statute’s potential reach (or) guide
public officers as to what relationships require recusal.”[3]
The state court said the law “thus chilled speech.” In its appeal to the U.S. Supreme
Court, the lawyer representing the commission argues, “State and local
legislators have no personal ‘free speech’ right to cast votes on particular
matters, much less ones in which they have a personal interest.”[4]
The Reporters Committee for Freedom of the Press similarly claims that rules
such as Nevada’s are important to ensure politicians don’t vote based on
personal interests.
In 2009, the U.S. Supreme Court
ruled by 5-4 that a West Virginia judge should have withdrawn from case because
of a risk of bias. The court majority said judges must sit out a case when a
risk of bias arises because a person with a significant stake in the case “had
a significant and disproportionate influence” in getting the judge on the
bench. In the present case, Carrigan’s campaign manager had a significant
influence in getting Carrigan elected, but did his consulting role at the
casino constitute a significant stake, and, if so, was it only in the past, or
did the consultant/campaign manager stand to benefit financially after the
vote?
Regarding the Nevada ethics law, a
campaign manager can be regarded as similar to a business partner. The
vagueness of last category in the law is poor legislation, but it does not
nullify the similarity in the present case. In fact, I contend that the law
does not go far enough, for it excludes friendship. Presumably a public
official would want to see one of his friends benefit even if there is no
financial relationship between the official and the friend. Suddenly the
vagueness in the law does not seem to be a formidable problem, but, rather, a
virtue.
In general, a conflict of interest
in politics or business need not involve a financial relationship between the
decision-maker and the other person. The problem with sidestepping
votes to avoid any conflict of interest is that too many votes may be missed.
Moreover, evading votes when an official might be tempted to vote in line with
his or her more particular interest can be interpreted as giving up on the
civic duty to vote in line with the public good; it is assumed that if there is
a personal interest involved, the official will act on it rather than the good
of the city. In other words, the Nevada law essentially punts by separating a
voting official from conditions in which voting in the public interest would be
felt as a duty (there being an opposing motive in line with the official’s own
interest extended out to business associates, relatives and friends.
As for the Nevada ethics law, that
its vagueness somehow “chills speech” is perplexing. The same kind of
conflation seems to take place when spending money is reckoned as political speech.
The court seems to have been assuming that the vagueness would mean that
officials would be skipping many votes, and therefore “silenced” by the
law. Even if the law is too broad in its coverage, to consider
voting as “speech” is patently absurd. To vote is not to
speak. To claim that one is proffering his opinion by voting
magnifies a side-effect out of what it means to vote. A vote takes place after
the give and take of opinions in order to settle the
question. Hence, “the vote is on the question” rather than being an
elaboration of the question. A vote is a collective decision rather
than a dialogue. We are therefore back to the problem of whether too
many votes would be skipped.
At some point, if the duty of
civic virtue is trampled upon, no law can bracket the corruption. In
the end, it is up to the popular sovereign, the people, to evaluate their
elected officials with respect to the voting records. As for the officials,
skipping a vote to avoid a conflict of interest must be weighed against the
duty to vote. From the standpoint of the latter, a skipped vote is a
failure, even if it is to obviate a hard choice. Ideally, public officials
would stand up to their particular relations and explain to them that the
public trust is bigger than them and the relations. Yet if the official
foresees himself succumbing to the temptation of expediency, skipping a vote
would be worth evading the duty.
