Friday, July 06, 2007 - Las Vegas CityLife No good bill unpunished
Who killed ethics reform in the 2007 Legislature? A Senate committee with a funny name
by Steve Sebelius and Andrew Kiraly
Friday, July 06, 2007 - Las Vegas CityLife
Up Front Where ethics go to die by Andrew Kiraly
NCPE at the 2007 Nevada State Legislature: Summary and Details or Archives
I. Summary
NCPE testified personally or by submitting testimony, 18 times - twice to the Assembly Judiciary Committee (on AB 505 and SJR 2) and 16 times to the Assembly Committee on Elections, Procedures, Ethics & Constitutional Amendments and the Senate Committee on Legislative Operations and Elections. (All testimonies and bills mentioned are posted on our website.
Before the session began, our Legislation Committee had developed 11 proposals; of those 3 were later dropped by us, and 8, including one minor editing change, were argued by us. Two of these 8 - about what detail should go in to a financial disclosure statement, and how often and when should campaign contributions be reported, went nowhere. We’ll consider how to re-write them before 2009.
The other six (including our main priorities about LLC’s and ethics classes for lobbyists) were included in bill drafts. One succeeded (in AB 80), and the rest succeeded in the Assembly Committee and by a 42/0 vote in the Assembly, but were killed by the Senate Committee on Legislative Operations & Elections.
We also joined Assemblyman Dr. Joe Hardy in his AB 312 (see below), which did not pass but was folded in to AB 335, which was killed by the Senate Committee.
We joined Assemblyman Ed Goedhart in his AB 143, about NV. Commission on Ethics (NCOE) deadlines and how to tell a citizen ethics-complainer what is happening to a complaint (see below; half of it passed, the other half was killed by the Senate Committee).
Early in the session we realized many of these bills needed to stipulate that there should be electronic reporting so that the public could read campaign contribution and financial disclosure statements in a timely manner after they are filed, and that those forms should be made available to candidates electronically on the Secretary of State’s (SOS) website. The Assembly committee inserted these requirements throughout AB 335. But, as stated, it was killed by the Senate committee.
Outside of our main focus, we also testified for AB 79, to require backup paper ballots, but it lost. Clark County=s Larry Lomax testified that there is no way anyone can hack Nevada=s voting machines, that the only danger is security, whether or not they are under lock and key and guarded. He says they are safe, so, no danger in Nevada.
We testified for AB 505, to help minimize the number of judges having to raise money from litigants and lawyers by changing the deadline for filing; this passed .
Also we testified for SJR 2, which would set up a Commission on Judicial Performance, to evaluate each judge periodically according to the standards of good practice expected from judges. It also would set up a new kind of Commission on Judicial Selection, which would have public testimony about nominees, select nominees and give a vetted list to the Governor. The Governor would appoint one, and that person would have a retention election 2 years later; this passed but would amend the NV. Constitution, so it must come to the Legislature again in 2009, and, if passed at that time, then must go to the voters in Nov. of 2010 and achieve a majority vote of approval in order to become effective.
As a wrap-up, then: we came out well on the LLC’s bill, were temporarily successful on many issues when the other bills left the Assembly, but had almost all of our constructive work killed by the Senate Committee.
It needs to be said that the Assembly committee worked in a bipartisan way, listening to all contributions, members of both parties pitching in questions and ideas. The final work product leaving that Committee and going to the floor of the Assembly was truly a model of deliberative achievement - and the 42/0 floor vote seems to me to testify to that.
Then, when the bills came to the Senate Committee, we were also treated with respect and courtesy. But the scene was very different: very few questions from (the minority) Democrats, some questions from Republicans, but (with the exception of AB 80, which worked well with everyone, after amendments), what later came out as “DELETE” of almost all of AB 142 and of AB 335, half of SB 425 and most of SB 495, killing the first two and seriously gutting the last two, -- all this was done without testimony to tell us what was so objectionable, without questions to the bill sponsor or to us to highlight what is so objectionable, and without any reasons given as to why almost all of 3 ½ bills would be killed. Occasionally a Republican senator would say that this or that provision would be “burdensome” for a citizen-legislator to take care of. Also that with this or that provision, it would be harder to find good people to run for office, because they do not want all these burdensome requirements. But the committee did not operate with open cooperation and participation from all members, majority and minority, as we had seen in the Assembly committee. It was not forbidden, it just did not happen. And worst of all, given what was and was not said, the killing of these good ideas cannot lead us to make better proposals next time, because we have no reasons as to why they were killed:
- WHY is an electronic form bad?
- WHY is posting these disclosure statements electronically on the SOS website in a timely manner a bad thing?
- WHY are lobbyists NOT to have any ethics class?
- WHY NOT require executive-branch lobbyists to register and report?
- WHY NOT double the old ethics fines?
- WHY NOT let a citizen ethics-complainer know how his complaint is coming?
- WHY NOT adopt Dr. Joe Hardy’s idea for educational development of legislators by going to seminars and conferences tied to their work?
- WHY write an exception to “gifts” for anything given to a legislator by a business or professional acquaintance?
- WHY kill the blackout of monies to city & county officials close to the time of a vote?
- WHY make us choose between early voting and knowing who gave what to whom?
- WHY no “cooling off” period for high-level regulators on the PUC, the Gaming Control Board, and similar high-level regulatory positions?
What is the philosophy of citizen-legislator ethics which explains all of these “DELETE” decisions? We need to ask.
II. Detail of each bill’s provisions as passed or killed:
Requiring LLC’s to report their names and monies spent for political purposes. THIS BILL PASSED AND IS SIGNED INTO LAW.
Originally, the bill required LLC reporting, but it was amended to include any business entity, thereby including trusteeships and proprietorships, if they give money for political purposes, unless they are already publicly listed or their business purpose is already disclosed in a verifiable way to identify their business purpose [in which case, I think, they already must report]. The SOS shall post on the internet, and Ain a timely manner@ [both of those NCPE requests] these filed reports, including the entity=s name, officers, activities, purpose and related information. The only escape is if the entity does not give any money for any political purpose – so that if an LLC were created only to own an apartment building, it is not covered.
AB 142
Our 2nd-highest priority: This bill required ethics classes for certain public officials, and for all lobbyists. It added to the ‘lobbyist’ category all those who lobby for the executive branch of government (for cities, counties, or the state). It also required them to register as lobbyists. It would have changed the reporting times for lobbyist expenditures to monthly during legislative session, and quarterly otherwise. It raised the fines for ethics violations.
This bill received Republican and Democratic input in the Assembly, passed 42/0, went to the Senate ethics committee, was amended to DELETE almost all sections, and then was voted as “do not recede’ , meaning ‘do not negotiate to change any of the amendments which deleted provisions’. A conference committee was appointed to seek a compromise, but under ‘do not recede’ there was no room for compromise, so 31 of 34 sections or subsections were killed, and the entire bill died. What had been the bill’s provisions are detailed below:
Sec. 1, Subsection 1. Remains - each public officer who files a financial disclosure statement shall take an NCOE ethics class.
Subsection. 2, DELETED: each registered lobbyist shall take an ethics class.
Subsection 3, DELETED: each public employee whose job is to lobby other government entities shall take an ethics class.
Sec. 2, NEW, ADDED by the Senate Comm: The NCOE can offer ethics classes for anyone, for a fee.
Sec. 3.3, DELETED: We asked that NRS 281.501.2 (a) be amended to fit with NRS 281.481, so that not only accepting a gift or loan, but also SEEKING that gift of loan, is forbidden. Same amendment was to be made at 501.3 (a) and 501.4 (a) and 501.4 ( c).
Sec. 3.7, DELETED: The NCOE asked that the 3 levels of fine for violations – $5,000, 10,000, and 15,000 be doubled – a sort of ‘cost of living’ adjustment since these were 1987 numbers.
Sec. 4, DELETED: - change ‘membership fee’ to ‘membership dues’.
Sec. 5, DELETED: to change NRS 218.926 about lobbyists, so that they would report their gifts given and monies spent monthly during a Legislative session, and at the end of each quarter when it is not in session, both kinds of reports to be filed under penalty of perjury if falsified.
Sec. 6, DELETED: establishes that the NCOE can charge a fee for an ethics class.
Sec. 7, DELETED: Stating that Sections 8-31 shall be known as the “Executive Department Lobbying Disclosure Act”.
Sections 8-31, DELETED:
Sec. 9, the opportunity of the public to petition the government is precious and must be protected, but
Secs. 11 and 12, when one works for a government body and has as one’s official duty in establishing policy, to lobby other government entities, and when a policy-making person is appointed to a government commission, unclassified position, or is given any authority to make policy, then that person must disclose the activities and monies expended to do this lobbying.
Sec. 14, “gift” is defined, as in the lobbying statute, but with Dr. Joe Hardy’s exception for “attendance at an event relating to public office or an event benefitting an IRS 501 ( c) organization [tax-exempt charity].
Sec. 15 defines ‘lobbyist’ as paid to speak for an organization in order to influence votes or the making of rulings or laws.
Sec. 16 defines “person”, so that
Sec. 17, every person who is a lobbyist shall file an annual registration, and
Sec. 18, defines what information that registration must contain.
Sec. 19 provides for terminating one’s lobbyist registration, or also re-instating it.
Sec. 21 requires 4 quarterly reports to be made to the Secretary of State, and
Sec. 29 & 30 list prohibitions (such as an executive-branch lobbyist shall not claim authority to use another office’s personnel for his work, or mis-describe the scope of his assignment, etc.).
Not deleted, but in fact new: Sec. 32, NEW: REPLACES ALL OF SECS. 8-31 with: “Anyone who is a public employee after 10/1/07 whose job is to lobby government entities shall take an NCOE ethics class by 1/1/08". [But since the bill died, this too died].
AB 143: (half of it) PASSED
Affects timelines and citizens= complaints to NCOE: As for timelines, our NCPE suggestion to distinguish between advisory and complaint proceedings was adopted; advisories will keep the 45-day time limit for NCOE to complete. Citizen complaint proceeding will have 60 days (the NCOE average over the past 5 yrs. has been 150 days, but, with better staffing and a more effective procedure they think they can do it in 60 days). They would have the authority to take longer if necessary.
As for allowing the citizen complainer to know what is happening, Sec. 1, subsec. 8 was DELETED. It was to provide that the citizen who files an ethics complaint can, at some point, ask and be given information as to what is happening to his or her complaint, a status report, so long as nothing is given out that would jeopardize the ability of the NCOE to complete the hearing and adjudicate it
AB 312; ROLLED IN TO AB 335, THEN KILLED IN THE SENATE
From Dr. Joe Hardy ( R) of Henderson: since the ethics in government law had no definition of "gift", this bill took the definition already on the books for lobbyists, and put it into the ethics in government law for public officials. But it also made a quantum leap in institutional support of conscientious legislators, long overdue: it made it an exception, so, NOT a Agift@ , if you were invited or went to a seminar, workshop or conference in order to learn about a business or industry for which as a legislator you must make public policy. The example given on both of the NCPE Town Hall meetings, by Republicans and Democrats, was mining: most legislators know nothing about mining, what laws it needs or what regulation is or is not working right. So they used to go to a conference staged by the mining industry. But after the ARolling Stones@ concert tickets uproar, many legislators stopped going on the grounds that they could not take the flack of getting a Agift@, a bad mark, when it was really supposed to be educational. Dr. Hardy proposed that there be an exception to Agifts@ when the meeting or conference is directly related to the legislator=s duties as a lawmaker. That would not be true of golf or a concert, but it would be true of a workshop or conference informing you of how something works. This bill, AB 312, did not pass the Assembly committee, but this provision was picked up and placed inside of AB 335.
AB 335
This bill was to change campaign and financial disclosure rules, to provide that there be only 1 form for campaign and financial disclosure. NCPE argued that the public needs to be able to see these things in a timely way on the SOS website, not just having the option to drive to a county clerk’s office to find them. The bill provided that the form be electronically available on the SOS website, that those who must file these reports file them electronically and that the SOS then post them “in a timely manner” on his website . Dr.Joe Hardy’s idea of allowing legislators to attend informative seminars or conferences directly related to legislative duties (as in AB 312, above) was included here. The Senate committee DID retain the requirement that cities and counties implement standards and rules for regulating and getting reports from lobbyists. The bill received Republican and Democratic input, and ours and that of other witnesses, in the Assembly committee, passed that committee, and then passed the Assembly 42/0. It then went to the Senate committee, where almost all of the bill was DELETED (see below), and then the Senate committee voted a “do not recede” order, meaning that none of the amendments to delete can be changed. The bill went to a conference committee, but since none of the 20 deleted sections (out of a total of 31 sections) could be changed, the entire bill died. Here are details:
Sec. 1, DELETED: would have added NRS 294A.128 to the list of contributions which are reported but which now would also have to be placed on his website by the SOS. These are campaign contributions such as a loan guaranteed by a 3rd party, a loan forgiven, or a written commitment for a contribution.
Sec, 2, DELETED: No elected or appointed public officer can solicit or accept any contribution except in the period from 12 mos. before a general election until 3 mos. after.
Sec. 3, DELETED: We asked that the SOS post these reported contributions on his website in a reasonable time.
Sec. 4, DELETED: We asked that the SOS shall make and put up on his website the form to be used for reporting these contributions.
Sec. 5, DELETED: similar to Secs. 3 & 4, about electronic forms and website posting.
Sec. 6, DELETED: The SOS is to make 1 form, usable for campaign contributions and for financial disclosure statements, and post it on the SOS website.
Sec. 7, DELETED: That any form for reporting financial contributions shall be posted on the SOS website for public consideration, and shall be posted in a timely manner.
Sec. 8, DELETED: provides that published rules include the address of the website where the public can find these reports.
Sec. 9, DELETED: if the SOS finds that a person failed to file a required report, he can turn the evidence over to the First District Court for legal consideration.
Sec. 10, “Gift” is defined as at 218.908, exception (a) is the same, but exception (b) is loosened to include a loan or “any other business transaction”; exception ( c) about the cost of entertainment had been deleted by the Assembly Comm., but here is restored; exception (d) about food and beverageis kept, but to it they now add “costs and expenses for legislators to attend [with or without spouse] an event to which multiple members of the Legislative Branche have been invited”; exception (e), “family” is tightened from Dr. Joe Hardy’s 5th degree of consanguinity (to allow cousins) down to immediate family or a relative of the recipient or spouse; exception (f), Dr. Joe Hardy’s exception for attending an informational “event relating to public office or [an event] which benefits a U. S. Treasury Dept. - designated IRS 501 ( c) organization, DELETED. Instead, the Senate Comm. inserts here, as a new exception to “gift”, “anything of value received from a person with whom the recipient has an existing business or professional relationship”.
Sec. 11, retained: counties shall regulate lobbyists, and set standards and reporting rules;
Sec. 12, retained: public officers can purchase or sell state [property] warrants;
Sec. 13, retained: cities shall regulate lobbyists, and set standards and reporting rules;
Secs. 14-15, city and county officers can purchase or sell warrants;
Sec. 16, same as Sec. 10, about “Gift”, and its exceptions;
Sec. 17, DELETED: defines “filing officer” to allow city or county officials to receive filings of lobbyist reports;
Sec. 18, DELETED: on “gift”, but is was the same as Sec. 10 and 16, with same changes, which are not deleted;
Secs. 19-22, retained, referring to the new sec. 16;
Sec. 23, DELETED: we asked that “improperly” be deleted from the statute about seeking or accepting a gift to change your vote, the Assembly agreed that there is no proper way to do that, so, no need to refer to improper actions of that kind.
Sec. 24, DELETED: this section had deleted provisions for the NCOE to make certain forms for reporting financial disclosure, because Sec. 6 had given the SOS the job of unifying the forms, down to one form, so, the NCOE would no longer have to make these forms. But since Sec. 6 was deleted, so too is Sec. 24.
Sec. 25, DELETED: This was the ‘filing officer’ implementation, now moot since they deleted the definition given at Sec. 17;
Sec. 26, DELETED: This had required those filing officers in counties to give to the SOS for posting on the website all disclosure reports of lobbyist activities in cities and counties. Since Sec. 17 is deleted, they deleted Sec. 26 and made no other provision for lobbyist reports to be posted.
Sec. 27, DELETED: same as Sec. 26, for cities.
Sec. 28, DELETED: provides what detail must be included in a financial disclosure statement, and that that report must be given to the SOS for posting.
Sec. 29, DELETED: the filing officer shall retain these forms for 6 yrs.
Sec. 30, DELETED: a list shall be compiled of all those required to file financial disclosure statements, and those lists from cities and counties are to be sent electronically to the SOS .
Sec. 31, DELETED: City, county and State officials shall give to every filed candidate for office the form, instructions and deadline for filing these forms.
SB 425
This bill had 2 purposes - [1] to place a Ablackout@ on any giving of monies to elected public officials during the period from 30 days before they would vote on the donor=s requests, to 30 days after they had voted on it. (Currently a donor can give money to a city council man or county commissioner at lunchtime and the public official then vote on that donor=s issue that afternoon). Also [2] the bill defined Alegal defense fund@ created for a political purpose, and establishes reporting procedures and record-keeping.
Section [1] was totally DELETED by the Senate Committee that deals with ethics!
Section [2] was retained and improved, we think, thanks to a question we raised, so that a politician can now have a private legal defense fund for a family or personal problem, but any political problem getting a legal defense fund must have its administrator identified and full details of contributions and spending must be reported.
SB 494
This bill came from the Governor=s office and echoed one of our NCPE proposals B that the deadline for reporting campaign contributions should come before early voting starts. At present you either vote early with no chance of knowing who gave what money to whom, or, you wait to find that out, and have missed early voting. SB 494 changed the deadlines so you could both early-vote and also know who gave what money to whom. This bill was killed in the Senate Committee that deals with ethics.
SB 495
This is one of the three serious defeats for public ethics advocates (along with AB 142 and AB 335). 3 minor provisions passed both houses and are signed into laws. Seven substantial provisions DELETED by the Senate Committee were:
Section 1, a high NCPE priority, providing for a mandatory cooling off period for high-level regulators leaving the Public Utilities Commission (and maybe sought by Nevada Power), leaving the Gaming Control Board (and maybe sought by MGM Mirage), or any other high-level regulator or policy-level public official;
Section 2, an NCPE priority, to change the ethics law=s definition of Awillful@ to the same, clear and very long-standing definition we use in civil and criminal law and everyday life, namely, an adult is responsible for his action if he knew or should have known the consequences, and was not coerced;
Section 3 defined an NCOE (NV. Commission on Ethics) quorum in terms of the number of those present and authorized to participate in that meeting;
Section 6 provided that the NCOE legal counsel could be under the direction of the executive director (NCPE opposed this);
Section 8 provided that an ethics complaint is NOT Amoot@ if a year has gone by since it was filed, but that a >statute of limitations= will now be 3 yrs..
Section 11 has the 3-yr >statute of limitation= idea + a 60-day limit on completing a complaint (this 60-day limit DID make it in to AB 143, which passed both houses and is law);
Section 15 would have tightened the time one has to file a statement that, once elected, he or she did read and understand the ethics in government law.
Sections 4, 5, 7, 9, 12, 13 and 17 were all deleted but are all replaced by the new Section 18.
Not deleted, so still in the bill which passed, are these 3 pieces: Section 10 remains, which changes the deadline for filing a financial disclosure statement to Jan. 15th, making that the same date as other laws use for that filing; and
Section 16 deletes the gross misdemeanor penalty for taking an honorarium for speaking, and changes the penalty to forfeiture of the honorarium.
Section 18, which orders the LCB henceforth to refer to all of the Ethics in Government law, currently NRS 281.411-581, as, instead, “NRS 281A”, for economy of reference.
