Vol. 26 No. 14- Supreme Court Rules That A Conflict Of Interest Law Is Not Unconstitutional

                                  CLIENT ALERT MEMORANDUM

To:                 All Police Chiefs and Sheriffs

From:             Martin J. Mayer, Esq.


June 14, 2011

On June 13, 2011, the United States Supreme Court held, in the case of Nevada Commission on Ethics v. Carrigan that Nevada’s Ethics in Government Law, dealing with conflicts of interest, does not violate the First Amendment.

The law requires public officials to recuse themselves from voting on, or advocating the passage or failure of “a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by,” among other things, “[h]is commitment in a private capacity to the interests of others,” which includes a “commitment to a [specified] person,” e.g., a member of the officer’s household or the officer’s relative, and “[a]ny other commitment or relationship that is substantially similar” to one enumerated in the Law.


The Commission on Ethics investigated respondent Carrigan, an elected local official, who voted to approve a hotel/casino project proposed by a company that used Carrigan’s long-time friend and campaign manager (Vasquez) as a paid consultant.  Before voting on the issue, Carrigan had consulted the Sparks city attorney, who advised him that disclosing his relationship with Vasquez before voting on the Lazy 8 project, which he did, would satisfy his obligations under the Ethics in Government Law.  The Commission did not agree.

The Supreme Court noted that “[u]pon completion of its investigation, the Commission concluded that Carrigan had a disqualifying conflict of interest under §281A.420(8)(e)’s catchall provision because his relationship with Vasquez was “substantially similar” to the prohibited relationships listed in §281A.420(8)(a)-(d).”

The Commission’s written decision censured Carrigan for failing to abstain from voting on the Lazy 8 matter, but did not impose a civil penalty because they concluded that his violation was not willful.

After being censured, Carrigan sought judicial review, arguing that the Nevada law violated the First Amendment. The State District Court denied the petition, but the Nevada Supreme Court reversed, holding that voting is protected speech and that the definition regarding “[a]ny other commitment or relationship that is substantially similar” to one enumerated in the Law was unconstitutionally overbroad.


The U.S. Supreme Court stated that the issue before it was “whether legislators have a personal, First Amendment right to vote on any given matter.”  In a unanimous opinion, the Court ruled that the “Nevada Ethics in Government Law, which prohibits a legislator who has a conflict of interest from both voting on a proposal and from advocating its passage or failure, is not unconstitutionally overbroad.”


“The First Amendment prohibits laws “abridging the freedom of speech,” which, “`as a general matter . . . means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'” (Cites) But the Amendment has no application when what is restricted is not protected speech. The Nevada Supreme Court thought a legislator’s vote to be protected speech because voting “is a core legislative function.”

The Court noted that “the challenged law not only prohibits the legislator who has a conflict from voting on the proposal in question, but also forbids him to “advocate the passage or failure” of the proposal—evidently meaning advocating its passage or failure during the legislative debate.” The Supreme Court made special note of the historical importance of conflict of interest rules. “The Nevada Supreme Court and Carrigan have not cited a single decision invalidating a generally applicable conflict-of-interest recusal rule—and such rules have been commonplace for over 200 years.”

addition to conflict rules applying to legislators, the Court notes that similar rules apply to judges as well.  “Federal conflict-of-interest rules applicable to judges also date back to the founding. In 1792, Congress passed a law requiring district court judges to recuse themselves if they had a personal interest in a suit or had been counsel to a party appearing before them.  In 1821, Congress expanded these bases for recusal to include situations in which “the judge . . . is so related to, or connected with, either party, as to render it improper for him, in his opinion, to sit on the trial of such suit.” The statute was again expanded in 1911, to make any “personal bias or prejudice” a basis for recusal.” Notwithstanding such restrictions, and recognizing the differences between legislators’ votes and judges’ rulings, the Court said that “there do not appear to have been any serious challenges to judicial recusal statutes as having unconstitutionally restricted judges’ First Amendment rights.”

“Furthermore, today, virtually every State has enacted some type of recusal law, many of which, not unlike Nevada’s, require public officials to abstain from voting on all matters presenting a conflict of interest.”


The Court addressed the question: “how can it be that restrictions upon legislators’ voting are not restrictions upon legislators’ protected speech? The answer is that a legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it.”(Emphasis added.)

The Court drew a distinction between the protected First Amendment right of citizens to vote, and votes of legislators.  “[T]he legislator casts his vote “as trustee for his constituents, not as a prerogative of personal power.” In this respect, voting by a legislator is different from voting by a citizen. While “a voter’s franchise is a personal right,” “[t]he procedures for voting in legislative assemblies . . . pertain to legislators not as individuals but as political representatives executing the legislative process.”


The issue of First Amendment rights of agents or employees of the public continues to generate significant legal discussion and, as in this matter, major court decisions.

In addition to the votes of elected officials, many public sector personnel participate in various associations which represent the interests of that group, e.g. city managers, labor groups, police chiefs, sheriffs, etc.  The position adopted by the U.S. Supreme Court, in this case, might also be applicable to those associations, as well.  A key element of the decision seems to be that the role of a representative involves voting on behalf of others and, as such, the vote is not “personal.”

We have always stated that it is important, especially when dealing with complex issues of law, to seek and follow advice and guidance from one’s legal counsel.  It is interesting to note that in the instant case the legislator had secured legal advice from the city’s attorney.  As noted above, the advice of the attorney was that, by stating the connection between the legislator and his friend he would be in compliance with the ethics requirements; that was proven to not be the case.

However, seeking such guidance certainly goes a long way to supporting an argument that the legislator, or voting member of an association’s board of directors, did not vote in an arbitrary way but, rather, attempted to follow what he/she thought was appropriate legal advice.  In the instant case, no civil penalty was imposed on Carrigan because the Commission concluded that his violation was not willful.  It is reasonable to reach that conclusion when legal advice was first sought.

As always, if you wish to discuss this matter in greater detail, please do not hesitate to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.