Senate Bill No. 214

Senate Bill No. 214-Committee on Government Affairs

( On Behalf of the Office of the Attorney General)

March 13, 1997
____________

Referred to Committee on Government Affairs

SUMMARY--Makes various changes to provisions regarding commission on ethics. (BDR 23-616)

FISCAL NOTE: Effect on Local Government: No.

Effect on the State or on Industrial Insurance: No.

EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.

AN ACT relating to state government; revising the requirements for the submission of certain requests for opinions from the commission on ethics; revising the provisions regarding the confidentiality of matters before the commission; authorizing the commission to impose civil penalties and assess attorney's fees against certain persons in certain circumstances; revising the provisions regarding the disclosure of gifts on statements of financial disclosure; eliminating the criminal penalty for willful failure to file a statement of financial disclosure; establishing a civil penalty for failure to file in a timely manner statements of financial disclosure; and providing other matters properly relating thereto.

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

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Section 1 NRS 281.511 is hereby amended to read as follows:
281.511 1. The commission shall render an opinion interpreting the statutory ethical standards and apply the standards to a given set of facts and circumstances [,] upon request [,] from a public officer or employee who is seeking guidance on questions which directly relate to the propriety of his own past, present or future conduct as an officer or employee. He may also request the commission to hold a public hearing regarding the requested opinion. If a requested opinion relates to the propriety of his own present or future conduct, the opinion of the commission is:
(a) Binding upon the requester as to his future conduct; and
(b) Final and subject to judicial review pursuant to NRS 233B.130, except that [any] a proceeding regarding this review must be held in closed court without admittance of [any person] persons other than those necessary to the proceeding, unless this right to confidential proceedings is waived by the requester.
2. The commission may render an opinion interpreting the statutory ethical standards and apply the standards to a given set of facts and circumstances:
(a) Upon request from a specialized or local ethics committee . [;]
(b) Upon request from [any] a person, if the requester [submits] :
(1) Submits all related evidence deemed necessary by the commission for it to make a preliminary determination of whether it desires to take jurisdiction over the matter; [or] and
(2) Signs a statement on a form prescribed by the commission in which he affirms that:
(I) The accusation or information contained in the request is true;
(II) He did not submit the request in bad faith or with a vexatious purpose; and
(III) He understands that the commission may impose penalties upon him pursuant to NRS 281.551 if the commission determines that the accusation or information is false and was submitted in bad faith, with a vexatious purpose or in connection with a request for an opinion that the commission determines to be without merit.
(c) Upon the commission's own motion regarding the propriety of conduct by a public officer or employee, if the commission first determines in an adopted motion that there is just and sufficient cause to render an opinion concerning the conduct of that public officer or employee . [,
on the condition that any public officer or employee about whom an opinion is requested or authorized must be notified immediately by certified mail that an opinion has been requested or authorized and that he has a right to appear before the commission and present evidence and argument.] The commission shall not [issue an opinion nor] determine that there is just and sufficient cause [exists] to render an opinion without extending the public officer or employee an opportunity to appear before the commission and present evidence and argument. Proceedings that the commission initiates pursuant to this paragraph must remain confidential unless the commission determines that there is just and sufficient cause to render an opinion.
3. The commission shall render [the] an opinion requested pursuant to this section as expeditiously as possible in light of the circumstances of the public officer or employee about whom the opinion is requested, so as to minimize [any] adverse consequences to him that may result from [any] a delay in issuing the opinion.
4. Each request for an opinion [submitted] that a public officer or employee submits to the commission pursuant to subsection 1 [or 2, each such] , each opinion rendered by the commission in response to such a request and any motion, preliminary determination, evidence or record of a hearing relating to such a request are confidential unless [:
(a) It is an opinion requested pursuant to subsection 1 and] the public officer or employee who requested the opinion:
[(1)] (a) Acts in contravention of the opinion, in which case the commission may disclose the request for the opinion, the contents of the opinion and any motion, evidence or record of a hearing related thereto;
[(2)] (b) Discloses the request for the opinion, the contents of the opinion or any motion, evidence or record of a hearing related thereto; or
[(3)] (c) Requests the commission to disclose the request for the opinion, the contents of the opinion or any motion, evidence or record of a hearing related thereto . [; or
(b) It is an opinion requested pursuant to subsection 2 regarding the past conduct of a public officer or employee and:
(1) The commission determines pursuant to subsection 2 that there is just and sufficient cause to render an opinion, in which case the commission may open the proceedings to the public and disclose the request for the opinion, the contents of the opinion and any motion, preliminary determination, evidence or record of a hearing related thereto;
(2) The commission determines that there is insufficient basis to render an opinion and the person about whom the opinion was requested has asked the commission to make public the reasons for not rendering the opinion; or
(3) The person about whom the opinion was requested discloses the request for the opinion, the contents of the opinion, or any motion, preliminary determination, evidence or record of a hearing related thereto.
5. If an opinion is requested and a motion that there is just and sufficient cause to render an opinion has been adopted by the commission,]
5. Whenever the commission holds a hearing for a purpose other than to determine whether or not the commission has jurisdiction over a matter, the commission shall:
(a) Notify the person about whom the opinion was requested of the place and time of the commission's hearing on the matter;
(b) Allow [him] the person to be represented by counsel; and
(c) Allow [him] the person to hear the evidence presented to the commission and to respond and present evidence on his own behalf.
The commission's hearing may be held no sooner than 2 weeks after the notice is given [.] unless the person agrees to a shorter time.
6. If [any person requesting] a person who requests an opinion pursuant to subsection 1 or 2 does not:
(a) Submit all necessary information to the commission; and
(b) Declare by oath or affirmation that he will testify truthfully,
the commission may decline to render an opinion.
7. For the purposes of NRS 41.032, the members of the commission and its employees shall be deemed to be exercising or performing a discretionary function or duty when taking [any] an action related to the rendering of an opinion pursuant to this section.
8. Except as otherwise provided in this subsection, the commission shall publish hypothetical opinions which are abstracted from the opinions rendered pursuant to subsection 1 , [or 2,] for the future guidance of all persons concerned with ethical standards in government. [The commission need not publish a hypothetical opinion regarding issues covered by an opinion which was made public in accordance with subsection 4.]
9. A meeting or hearing [held by] that the commission holds to receive information or evidence concerning the propriety of the conduct of [any] a public officer or employee pursuant to this section and the commission's deliberations on [the] such information or evidence are not subject to [any provision] the provisions of chapter 241 of NRS.
Sec. 2. NRS 281.551 is hereby amended to read as follows:
281.551 1. In addition to [any other penalty] other penalties provided by law, the commission may impose on a public officer or employee or former public officer or employee civil penalties not to exceed $5,000 for a willful violation of this chapter.
2. In addition to [any other penalty] other penalties provided by law, the commission may impose a civil penalty not to exceed $5,000 [on any] and assess an amount equal to the amount of attorney's fees and costs actually and reasonably incurred by the person about whom an opinion was requested pursuant to NRS 281.511, against a person who [knowingly or maliciously submits to the commission any false accusation or false information, or submits to the commission any false accusation or false information in bad faith or who, by fraud or artifice, prevents the discovery of a violation of this chapter.
3. In addition to any other penalty provided by law, the commission may impose a civil penalty not to exceed $5,000 on a person, other than the person about whom an opinion is requested, who:
(a) Participates in any activity relating to the request for the opinion;
(b) Is directed by the commission to comply with the requirements relating to confidentiality set forth in subsection 4 of NRS 281.511; and
(c) Subsequently violates those requirements.
4.] :
(a) Submits to the commission, in bad faith or with a vexatious purpose, an accusation or information that is false;
(b) Submits to the commission, in connection with a request for an opinion that the commission determines to be without merit, an accusation or information that is false; or
(c) By fraud or artifice prevents the discovery of a violation of this chapter.
3. If the commission finds that a violation of a provision of this chapter by a public officer or employee or former public officer or employee has resulted in the realization by another person of a financial benefit, the commission may, in addition to [any other penalty,] other penalties provided by law, require the current or former public officer or employee to pay a civil penalty of not more than twice the amount so realized.
[5.] 4. If the commission finds that a violation of this chapter has been committed by a public officer removable from office by impeachment only, it shall file a report with the appropriate person responsible for commencing impeachment proceedings as to its finding. The report must contain a statement of the facts alleged to constitute the violation.
[6. Any]
5. An action taken by a public officer or employee or former public officer or employee relating to NRS 281.481, 281.491, 281.501 or 281.505 [shall be deemed not to be] is not a willful violation of [any] a provision of those sections if the public officer or employee:
(a) Relied in good faith upon the advice of the legal counsel retained by the public body which the public officer represents or by the employer of the public employee;
(b) Was unable, through no fault of his own, to obtain an opinion from the commission before the action was taken; and
(c) [The action taken] Took action that was not contrary to [any] a prior opinion issued by the commission to the public officer or employee.
[7.] 6. In addition to [any other penalty] other penalties provided by law, a public employee who willfully violates [any] a provision of NRS 281.481, 281.491, 281.501 or 281.505 is subject to disciplinary proceedings by his employer and must be referred for action in accordance to the applicable provisions governing his employment.
[8.] 7. NRS 281.481 to 281.541, inclusive, do not abrogate or decrease the effect of [any of] the provisions of the Nevada Revised Statutes which define crimes or prescribe punishments with respect to the conduct of public officers or employees.
[9.] 8. The imposition of a civil penalty pursuant to [subsections 1 to 4, inclusive,] subsection 1, 2 or 3 is a final decision for the purposes of judicial review.
Sec. 3. NRS 281.571 is hereby amended to read as follows:
281.571 1. Statements of financial disclosure, as approved pursuant to NRS 281.541 or in such form as the commission otherwise prescribes, must contain the following information concerning the candidate or public or judicial officer:
(a) His length of residence in the State of Nevada and the district in which he is registered to vote.
(b) Each source of his income, or that of any member of his household. No listing of individual clients, customers or patients is required, but if that is the case, a general source such as "professional services" must be disclosed.
(c) A list of the specific location and particular use of [any] real estate, other than a personal residence:
(1) In which he or a member of his household has a legal or beneficial interest;
(2) Whose fair market value is $2,500 or more; and
(3) [Which] That is located in this state or [any] an adjacent state.
(d) The name of each creditor to whom he or a member of his household owes $5,000 or more, except for:
(1) A debt secured by a mortgage or deed of trust of real property which is not required to be listed [under] pursuant to paragraph (c); and
(2) A debt for which a security interest in a motor vehicle for personal use was retained by the seller.
(e) [A list of all gifts of $200 or more which the public or judicial officer or candidate received during the preceding taxable year,] If the candidate or public or judicial officer has received gifts in excess of an aggregate value of $200 from a donor during the preceding taxable year, a list of each such gift, including the identity of the donor and value of each gift, except:
(1) A gift received from a person who is related to the candidate or public or judicial officer [or candidate] within the third degree of consanguinity or affinity.
(2) Ceremonial gifts received for a birthday, wedding, anniversary, holiday or other ceremonial occasion if the donor does not have a substantial interest in the legislative, administrative, judicial or political action of the candidate or public or judicial officer . [or candidate.]
(f) A list of each business entity with which he or a member of his household is involved as a trustee, beneficiary of a trust, director, officer, owner in whole or in part, limited or general partner, or holder of [any] a class of stock or security representing 1 percent or more of the total outstanding stock or securities issued by the business entity.
(g) A list of all public offices presently held by him for which this statement of financial disclosure is required.
2. The commission shall distribute or cause to be distributed [any] the forms required for such a statement to each candidate and public or judicial officer who is required to file one. The commission is not responsible for the costs of producing or distributing a form for filing statements of financial disclosure which is prescribed pursuant to subsection 1 of NRS 281.541.
3. As used in this section:
(a) "Business entity" means [any] an organization or enterprise operated for economic gain, including a proprietorship, partnership, firm, business, trust, joint venture, syndicate, corporation or association.
(b) "Household" includes [a] :
(1) A person who does not live in the same home or dwelling, but who is dependent on and receiving substantial support from the candidate or public or judicial officer [.] ; and
(2) A person who lived in the home or dwelling of the candidate or public or judicial officer for 6 months or more in the year immediately preceding the year in which the candidate or public or judicial officer files the statement of financial disclosure.
Sec. 4. NRS 281.581 is hereby amended to read as follows:
281.581 A [willful failure to file a statement of financial disclosure as required by the provisions of NRS 281.561 and 281.571 or regulations adopted thereunder is a misdemeanor.] candidate or public or judicial officer who fails to file his statement of financial disclosure in a timely manner pursuant to NRS 281.561 is subject to a civil penalty and payment of court costs and attorney's fees. The amount of the civil penalty is:
1. If the statement is filed not more than 7 days late, $25 for each day the statement is late.
2. If the statement is filed more than 7 days late but not more than 15 days late, $175 for the first 7 days, plus $50 for each additional day the statement is late.
3. If the statement is filed more than 15 days late, $575 for the first 15 days, plus $100 for each additional day the statement is late.
The civil penalty must be recovered in a civil action brought in the name of the State of Nevada by the commission in a court of competent jurisdiction and deposited with the state treasurer for credit to the state general fund.
Sec. 5. The amendatory provisions of this act do not apply to a person who fails to file his statement of financial disclosure in a timely manner before the effective date of this act.
Sec. 6. This act becomes effective upon passage and approval.