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 provisions regarding the use of governmental property by specified public officers and employees under certain circumstances; providing for the filing of a statement of disclosure by a member of the legislature; 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 281.481 is hereby amended to read as follows:
281.481 A code of ethical standards is hereby established to govern the conduct of public officers and employees:
1. A public officer or employee shall not seek or accept any gift, service, favor, employment, engagement, emolument or economic opportunity which would tend improperly to influence a reasonable person in his position to depart from the faithful and impartial discharge of his public duties.
2. A public officer or employee shall not use his position in government to secure or grant unwarranted privileges, preferences, exemptions or advantages for himself, any member of his household, any business entity in which he has a significant pecuniary interest, or any other person.
3. A public officer or employee shall not participate as an agent of government in the negotiation or execution of a contract between the government and any private business in which he has a significant pecuniary interest.
4. A public officer or employee shall not accept any salary, retainer, augmentation, expense allowance or other compensation from any private source for the performance of his duties as a public officer or employee.
5. If a public officer or employee acquires, through his public duties or relationships, any information which by law or practice is not at the time available to people generally, he shall not use the information to further the pecuniary interests of himself or any other person or business entity.
6. A public officer or employee shall not suppress any governmental report or other document because it might tend to affect unfavorably his pecuniary interests.
7. A public officer or employee, other than a member of the legislature, shall not use governmental time, property, equipment or other facility to benefit his personal or financial interest. This subsection does not prohibit:
(a) A limited use of governmental property, equipment or other facility for personal purposes if:
(1) The public officer who is responsible for and has authority to authorize the use of such property, equipment or other facility has established a policy allowing the use or the use is necessary as a result of emergency circumstances;
(2) The use does not interfere with the performance of his public duties;
(3) The cost or value related to the use is nominal; and
(4) The use does not create the appearance of impropriety.
(b) The use of mailing lists, computer data or other information lawfully obtained from a governmental agency which is available to members of the general public for nongovernmental purposes; or
(c) The use of telephones or other means of communication if there is not a special charge for that use.
If a governmental agency incurs a cost as a result of a use that is authorized pursuant to this subsection or would ordinarily charge a member of the general public for the use, the public officer or employee shall promptly reimburse the cost or pay the charge to the governmental agency.
8. A member of the legislature shall not:
(a) Use governmental time, property, equipment or other facility for a nongovernmental purpose or for the private benefit of himself or any other person. This paragraph does not prohibit:
(1) A limited use of state property and resources for personal purposes if:
(I) The use does not interfere with the performance of his public duties;
(II) The cost or value related to the use is nominal; and
(III) The use does not create the appearance of impropriety;
(2) The use of mailing lists, computer data or other information lawfully obtained from a governmental agency which is available to members of the general public for nongovernmental purposes; or
(3) The use of telephones or other means of communication if there is not a special charge for that use.
(b) Require or authorize a legislative employee, while on duty, to perform personal services or assist in a private activity, except:
(1) In unusual and infrequent situations where the employee's service is reasonably necessary to permit the legislator or legislative employee to perform his official duties; or
(2) Where such service has otherwise been established as legislative policy.
9. A public officer or employee shall not attempt to benefit his personal or financial interest through the influence of a subordinate.
10. A public officer or employee shall not seek other employment or contracts through the use of his official position.
Sec. 2. NRS 281.501 is hereby amended to read as follows:
281.501 1. Except as otherwise provided in subsection 2 or 3, a member of the legislative branch may vote upon a matter if the benefit or detriment accruing to him as a result of the decision either individually or in a representative capacity as a member of a general business, profession, occupation or group is not greater than that accruing to any other member of the general business, profession, occupation or group.
2. In addition to the requirements of the code of ethical standards, a member of the legislative branch shall not vote upon or advocate the passage or failure of, but may otherwise participate in the consideration of a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by:
(a) His acceptance of a gift or loan;
(b) His pecuniary interest; or
(c) His commitment in a private capacity to the interests of others.
It must be presumed that the independence of judgment of a reasonable person would not be materially affected by his pecuniary interest or his commitment in a private capacity to the interests of others where the resulting benefit or detriment accruing to him or to the other persons whose interests to which the member is committed in a private capacity is not greater than that accruing to any other member of the general business, profession, occupation or group.
3. A public officer or employee shall not approve, disapprove, vote, abstain from voting or otherwise act upon any matter:
(a) Regarding which he has accepted a gift or loan;
(b) Which would reasonably be affected by his commitment in a private capacity to the interest of others; or
(c) In which he has a pecuniary interest,
without disclosing the full nature and extent of the gift, loan, commitment or interest. [Such] Except as otherwise provided in subsection 6, such a disclosure must be made at the time the matter is considered. If the officer or employee is a member of a body which makes decisions, he shall make the disclosure in public to the chairman and other members of the body. If the officer or employee is not a member of such a body and holds an appointive office, he shall make the disclosure to the supervisory head of his organization or, if he holds an elective office, to the general public in the area from which he is elected.
4. If a member of the legislative branch declares to the legislative body or committee in which the vote is to be taken that he will abstain from voting because of the requirements of this section, the necessary quorum to act upon and the number of votes necessary to act upon the matter, as fixed by any statute, ordinance or rule, is reduced as though the member abstaining were not a member of the body or committee.
5. If a member of the legislative branch is voting on a matter which affects public employees, he shall make a full public disclosure of any personal pecuniary interest which he may have in the matter.
6. After a member of the legislative branch makes a disclosure pursuant to subsection 3, he may file with the director of the legislative counsel bureau a written statement of his disclosure. The written statement must designate the matter to which the disclosure applies. After a legislator files a written statement pursuant to this subsection, he is not required to disclose orally his interest when the matter is further considered by the legislature or any committee thereof. A written statement of disclosure is a public record and must be made available for inspection by the public during the regular office hours of the legislative counsel bureau.
Sec. 3. 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] there is just and sufficient cause to render an opinion in the matter; 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] initiate proceedings pursuant to this paragraph based solely upon an anonymous complaint. 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.
The commission shall not 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.
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. Except as otherwise provided in this subsection, each document in the possession of the commission that is related to a request for an opinion regarding a public officer or employee submitted to the commission pursuant to paragraph (b) of subsection 2, including the commission's copy of the request and all materials and information gathered in an investigation of the request, is confidential until the commission determines whether there is just and sufficient cause to render an opinion in the matter. The public officer or employee who is the subject of a request for an opinion submitted pursuant to paragraph (b) of subsection 2 may in writing authorize the commission to make its files, material and information which are related to the request publicly available.
6. Whenever the commission holds a hearing for a purpose other than to determine whether there is just and sufficient cause to render an opinion in 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 [.
6. If any person requesting] unless the person agrees to a shorter time.
7. If 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.] 8. 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.] 9. 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.] 10. 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. 4. 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) Prevents, interferes with or attempts to prevent or interfere with the discovery or investigation 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.
9. In determining for the purposes of this section whether a person submitted an accusation or information in bad faith or with a vexatious purpose, the commission may consider various factors, including, without limitation:
(a) When the accusation or information was filed with or provided to the commission;
(b) Whether and, if applicable, in what manner the person who submitted the accusation or information publicly disseminated the accusation or information before the commission determined whether there was just and sufficient cause to render an opinion in the matter;
(c) Whether the accusation or information sets forth alleged facts or details that are misleading or deceptive; and
(d) Whether the accusation or information or the conduct of the person who submitted the accusation or information:
(1) Would be perceived as annoying or harassing by a reasonable person; or
(2) Demonstrates conscious disregard for the process and procedures established by the commission.
Sec. 5. 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. 6. 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. 7. Section 47 of Senate Bill No. 215 of this session is hereby amended to read as follows:
Sec. 47. NRS 281.551 is hereby amended to read as follows:
281.551 1. In addition to 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 other penalties provided by law, the commission may impose a civil penalty not to exceed $5,000 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:
(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) Prevents, interferes with or attempts to prevent or interfere with the discovery or investigation 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 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.
4. Except as otherwise provided in this subsection, and in addition to any other penalty provided by law, the commission may impose on any person who violates any provision of section 15 or 16 of this act a civil penalty not to exceed $10,000. If the commission finds that a violation of section 15 or 16 of this act occurred within 10 days before an election, including any recall or special election, the commission may impose on the person who committed such a violation a civil penalty not to exceed $30,000.
5. 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.
[5.] 6. 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 is not a willful violation of 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) Took action that was not contrary to a prior opinion issued by the commission to the public officer or employee.
[6.] 7. In addition to other penalties provided by law, a public employee who willfully violates 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.
[7.] 8. NRS 281.481 to 281.541, inclusive, do not abrogate or decrease the effect of the provisions of the Nevada Revised Statutes which define crimes or prescribe punishments with respect to the conduct of public officers or employees.
[8.] 9. The imposition of a civil penalty pursuant to [subsection 1, 2 or 3] subsections 1 to 4, inclusive, is a final decision for the purposes of judicial review.
[9.] 10. In determining for the purposes of this section whether a person submitted an accusation or information in bad faith or with a vexatious purpose, the commission may consider various factors, including, without limitation:
(a) When the accusation or information was filed with or provided to the commission;
(b) Whether and, if applicable, in what manner the person who submitted the accusation or information publicly disseminated the accusation or information before the commission determined whether there was just and sufficient cause to render an opinion in the matter;
(c) Whether the accusation or information sets forth alleged facts or details that are misleading or deceptive; and
(d) Whether the accusation or information or the conduct of the person who submitted the accusation or information:
(1) Would be perceived as annoying or harassing by a reasonable person; or
(2) Demonstrates conscious disregard for the process and procedures established by the commission.
Sec. 8. 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. 9. This act becomes effective upon passage and approval.