by Dana Gentry, Nevada Current
Republican Gov. Joe Lombardo is taking a page from the playbook of former New York Gov. Andrew Cuomo in his quest to nullify the Nevada Ethics Commission, and in the process, undue the commission’s imposition of a $20,000 fine and determination that Lombardo willfully violated ethics law.
Cuomo, once considered a star of the Democratic Party, is suing the New York State Commission on Ethics and Lobbying in Government, which ordered him to forfeit $5 million he earned from a book about his administration’s response to Covid. Cuomo asserts in his lawsuit the Commission, an executive branch agency, operates without gubernatorial oversight or control, in violation of New York’s Constitution.
Lombardo is appealing a ruling that he violated ethics law by wearing his Clark County sheriff’s badge and uniform in photos for his gubernatorial campaign. In an argument that parallels Cuomo’s, he is challenging the Commission’s constitutional authority to prosecute him and exist in its current form.
“The Ethics law improperly deprives the Governor of authority to appoint all Commission members or otherwise oversee the Commission, and improperly confers on the legislature the right to appoint half the commissioners who sit on the Commission,” says Lombardo’s petition for judicial review. “Insofar as the Ethics Law delegates certain executive powers to the legislature, it should be declared unconstitutional as a violation of the separation of powers.”
Lombardo contends that sharing the appointment of the commission’s eight members with the Legislature places the Executive branch agency outside the governor’s control, the same argument Cuomo is making.
Executive authority
Cuomo won approval from New York’s Joint Commission on Public Ethics (JCOPE) in 2020 to write a book about the state’s response to the pandemic. But like the political winds of fortune, JCOPE later turned on Cuomo and filed a complaint regarding the book.
JCOPE was a 14-member board with six members appointed by the governor and lieutenant governor and six appointments split between Assembly and Senate leadership. Minority leaders also appointed two members.
In 2022, after Cuomo resigned amid allegations of sexual harassment, Democratic Gov. Kathy Hochul, with an eye toward greater independence of ethics proceedings, replaced JCOPE with the New York State Commission on Ethics and Lobbying in Government. It has 11 members – three appointed by the Governor, two each by the Temporary President of the Senate and the Speaker of the Assembly, one by the minority leaders of the Senate and the Assembly, one by the Attorney General, and one by the State Comptroller. The complaint against Cuomo survived the commission’s transformation.
“The Act is a flagrant violation of the doctrine of separation of powers,” says Cuomo’s complaint.
Lombardo filed his suit on Sept. 28, two weeks after Justice Thomas Marcelle of the New York Supreme Court (a statewide trial court with broad jurisdiction) agreed with Cuomo that any commission with executive power must be under the control of the governor.
“The commission violates this core constitutional tenant (sic) by operating beyond the Governor’s reach. The Governor has no capacity to control the commission by populating it with her appointees,” wrote Marcelle of the New York court. “She may not call commissioners to have them explain their actions, nor may she remove commissioners who misuse their office or fail in their duties.”
”Indeed, the whole reason for the commission’s existence is to be independent from any government control,” which Hochul’s act accomplishes, Marcelle wrote. “The Constitution, which so carefully allocates power among the three branches, will not permit those powers to be transferred to (an) independent commission amounting to an unsanctioned fourth branch of government.”
The New York Ethics Commission is appealing Marcelle’s ruling and reviewing options, such as interim legislation.
“New Yorkers have the right to an ethics commission that is truly independent and fully empowered to administer and enforce the state’s ethics and lobbying laws objectively, even-handedly, and without regard to the rank, position, or political affiliation of those we regulate and without interference from any branch of government,” Chair Frederick A. Davie and Executive Director Sandford N. Berland said in a statement last month.
On Tuesday, a New York appellate court granted a stay and injunction in Cuomo’s case, allowing the Commission to continue its work in the interim.
“The ripple effect from the Cuomo case is actually pretty severe,” says Heather Ferguson, director of state operations for Common Cause, a national government accountability watchdog organization. “I’m not optimistic. I doubt any appeals are going to be fruitful.”
Ferguson spent her first six years at Common Cause crafting a constitutional amendment allowing for an independent ethics commission in New Mexico, an option she says could salvage the commission in Nevada.
Lombardo, who has wielded executive power in the form of vetoes (a record-breaking 75 in his first legislative session) and executive orders (10 in his first nine months in office), won’t say whether he got the idea for his appeal from Cuomo’s argument, or divulge whether he seeks to invalidate other sanctions imposed by the Ethics Commission.
Campbell and Williams, the law firm representing Lombardo, declined to discuss the case on the record.
Circumventing the separation
Separation of powers is a doctrine often traced to an 18th century French philosopher who divided political authority among three branches – executive, judicial and legislative – for the purpose of avoiding concentration of power and to provide for checks and balances.
The doctrine is widely acclaimed as a seminal provision of democracy.
But at the federal level, Congress has encountered challenges from the doctrine as it grappled with imposing standards of ethical conduct on the U.S. Supreme Court, following revelations that Justice Clarence Thomas received luxury travel and more from a Republican mega donor.
In Senate hearings, experts disagreed on whether the separation of powers doctrine precludes Congress from imposing a code of conduct on the court.
“Most state constitutions have language that is very similar,” says Ferguson. “Any commission that is created via statute, without amending the constitution to circumvent that separation of powers, doesn’t have jurisdiction to enforce laws against the executive branch.”
By passing a constitutional amendment, New Mexico avoided separation of powers concerns that can undermine statutorily-created commissions. Legislators, however, insisted on retaining the ability to police their own via internal commitees.
“We’ve tried to preserve and protect as many pieces of the creation of the commission to minimize the potential for political interference,” Ferguson says of the amendment, which won 75% of the New Mexico vote in 2018. “It reads to me like the only way to address the issue (in Nevada) would be to amend the Constitution and to enshrine the Ethics Commission in the Constitution.”
Unpopular since inception
Lombardo is not the first public official to challenge the state’s ethics law, which has been attacked since its enactment in 1975 during the Watergate era, a time when the conduct of government officials was under scrutiny.
A year later, the Nevada Supreme Court deemed the law unconstitutionally vague, when Nevada Tax Commission members Harley Harmon, Jerome Mack and Commission Director Jack Sheehan objected to disclosing the sources of their income in financial disclosures required by the law. (In 2001, a federal jury convicted Harmon, a prominent businessman and former assemblyman, of 34 counts of mail fraud involving his mortgage lending company, and sentenced him to five years in prison.)
The Legislature created two new commissions in 1977 – one for its own members and one for the Executive branch. Commissioners were required to currently hold public office.
The commission, permitted to issue advisory opinions but not accept complaints from the public, and stymied by a lack of work and authority, fizzled after two years.
In 1985, lawmakers took another shot and created one commission. Six years later the Legislature gave the commission authority to issue binding opinions and to accept complaints from the public.
The law, which originally prohibited officials from accepting gifts that could influence their decisions, was amended to prohibit them from using their office to benefit themselves or their families – the same provision that landed Lombardo before the Commission.
A 1997 law allowed the Commission to punish false statements made by candidates during campaigns.
Last year, the Ethics Commission received $247,000 from the general fund and $637,000 from local governments. An annual report issued by the Commission for the fiscal year ending July 2023 says:
- The Commission fielded 41 requests for advisory opinions
- Received 102 complaint cases
- Resolved 120 outstanding complaint cases
- Trained more than 1,400 public officers and employees
- Collected more than $23,000 in penalties
“We resolved a record number of complaint cases and trained a record number of public officials in 2023.” Executive Director Ross Armstrong said in a news release. “These efforts to increase the productivity and effectiveness of the Commission’s team will continue into 2024.”
But Sandra Cosgrove, executive director of Vote Nevada, a civic engagement organization that backs ballot initiatives, says enshrining an ethics commission via constitutional amendment would likely be a hard sell, given public attitudes toward the Commission.
“I think Nevada voters would be willing to see taxpayer dollars go to an independent inspector general to root out corruption,” Cosgrove said via email. “I don’t think voters would support taxpayer dollars going to an independent ethics commission. It’s the perception that it would have no teeth and would just become a tool for political attacks.”
Note: This reporter has been represented by Campbell and Williams, the law firm representing Lombardo.
