School board members should be exempt from ethics law, since trustees serve 'the children,' says CCSD lawyer
Argument seeks to defend district board president, top lobbyist
LAS VEGAS — Requiring members of the Clark County School District Board of Trustees to obey Nevada’s Ethics in Government law, says CCSD’s top lawyer, could keep those members from doing their jobs.
School board President Carolyn Edwards in February was hit with a formal ethics complaint for using school district staff, resources and databases to advocate for the passage of a 2012 ballot question to raise county property taxes.
Responding to the complaint on Edwards’ behalf, Clark County School District lead attorney Carlos McDade wrote the state Ethics Commission that “The provision [of state law] cited by petitioner may actually prevent trustees from performing their statutory duty.”
The statute in question, NRS 281A.520, states that “a public officer or employee shall not request or otherwise cause a governmental entity to incur an expense or make an expenditure to support or oppose … (a) A ballot question….”
Those prohibitions were initially enacted in 2001 under Title 24 of the Nevada Revised Statutes, Nevada’s elections title, and pertained to government, political subdivisions and agencies of the State.
A citizen-proposed amendment to the bill — ultimately adopted by the Legislature — deleted all language limiting the monetary restrictions to a specific timeframe, and noted the amendment’s purpose: to maintain the neutrality of government in decisions reserved for the people through the ballot box.
Subsequently, the Nevada Supreme Court noted in Glover v. Concerned Citizens Fuji Park that “The legislative history reveals the statute was intended to prevent the government from spending money on campaigning, directly or indirectly, for or against a ballot question or candidate.”
After an incident involving a public officer, the Legislature in 2003 moved the provisions now found in NRS 281A.520 from Title 24 to Nevada’s Ethics in Government chapter. Lawmakers also amended the law to apply specifically to public officers and employees, rather than entities.
“We did have a complaint filed last summer during the election cycle against a public officer for something of this nature,” testified Stacy Jennings, then-executive director for the Nevada Commission on Ethics before the Assembly Committee on Elections, Procedures, and Ethics in 2003. “The way the ethics and government laws are currently drafted, we were not able to find a violation under state law.”
By putting the emphasis on the public officer, testified Jennings, it would give the Commission an opportunity to pursue particular instances involving public officers.
“I think that gives them some personal responsibility in the issue,” said Jennings.
CCSD legal counsel McDade appears to be attempting to craft a legal defense for not only school board President Edwards but also for the district’s associate superintendent for community and government Affairs, Joyce Haldeman, who faces ethics allegations in a separate, but related, complaint.
Caren Cafferata-Jenkins, executive director of Nevada’s Commission on Ethics, acknowledges that “responses containing such zealous legal advocacy are unusual,” but such issues are, she said, for the Commission to address.
“The Commission’s Counsel will offer advice to the Commissioners about how properly to address such arguments,” she told Nevada Journal.
The commission’s hearings — recently rescheduled from this week to Sept. 18 and 19 — are the beginning of that process, says Cafferata-Jenkins.
Nevada law creates county school boards to run county school districts, argues McDade in his submission. Moreover, he says, “NRS 386.350 grants school boards, by statutory edict, ‘such reasonable and necessary powers ... as may be requisite to attain the ends for which the public schools ... are established and to promote the welfare of school children ....’”
“As an elected official, Trustee Edwards has a duty to represent her constituents,” he writes. Trustees are “elected to provide an education to and protect the welfare of children,” and because “school boards are effectively required to raise money for capital construction projects,” Clark County’s trustees chose, “in compliance with Nevada law, to raise funds” by way of 2012’s controversial Ballot Question 2.
Thus, McDade implies, Edwards was simply fulfilling her statutory obligations as an elected official when she used the school district’s email system and possibly staff to advocate the passage of Question 2 — notwithstanding the ethics provisions in state law.
At the very least, he argues, the matter involves a legal question that has not been previously raised or resolved in Nevada courts.
However, McDade’s argument has a serious problem: What he cited to the Commission as NRS 386.350 strategically omitted a key provision — which he could not have missed.
CCSD’s counsel cites NRS 386.350, as granting school boards “such reasonable and necessary powers ... as may be requisite to attain the ends for which the public schools ... are established and to promote the welfare of school children ...”
In actuality, however, NRS 386.350 grants school boards “such reasonable and necessary powers, not conflicting with the Constitution and the laws of the State of Nevada, as may be requisite to attain the ends for which the public schools ... are established and to promote the welfare of school children, including the establishment and operation of schools and classes deemed necessary and desirable.” (Emphasis added)
That McDade would resort to this type of legal trickery, says Michael Silbergleid, the local resident who filed the complaints against Edwards and Haldeman, is a disservice to every taxpayer and student in Clark County.
“I think it misrepresents the meaning of NRS 386.350, the way they cite it,” says Silbergleid. “Putting ellipsis in there does not make it right. He cited NRS 386.350 for the pure benefit of Edwards and not for the benefit of the citizens of Clark County.”
“They are pure proponents of errors of omission,” says Silbergleid. “They only tell you what they want you to know, not what should be known.”
McDade also sought to refute the allegations lodged against Edwards by arguing that while Edwards used the school district’s email system, no expense was incurred or expenditure made as a result. “Therefore,” argued McDade, “there can be no violation.”
As an authorized user of the school district’s email system, argues McDade, “Trustee Edwards’ use of email to communicate school business is within the authorized uses permitted to her.”
“In other words,” he continues, the district’s budget already provides for Edwards’ use of the email system, and therefore, “it cost the District no more or no less” that Edwards sent the email advocating passage of ballot Question 2.
“This particular email in question,” McDade concluded, “did not incur an expense to the District or cause the District to make an expenditure of any calculable amount.”
As additional support, McDade offers the district policy — which authorizes their personal use of the email system — as evidence that minor use of the system does not incur any additional expense or require additional expenditures.
“The Technology Division of the District has determined,” writes McDade, “that most incidental use is minor in nature in comparison to the huge volume of official email and as a consequence, requires no additional labor and no additional data storage of measurable amount.
“Therefore,” reasons McDade, “even if this email is considered incidental personal use, it did not incur extra expense or require additional expenditures.”
Silbergleid, however, disputes that claim. He says Edwards personally told him that staff compiled the email message and after Edwards approved it, staff distributed it via Edwards’ CCSD email account. But Silbergleid is encouraged by McDade’s admission that Edwards’ email usage is funded by the district’s budget.
Silbergleid also drew attention to a section of McDade’s official message to the Ethics Commission where the CCSD lawyer complained that the complaint had referred to Edwards as “Ms. Edwards.”
“Petitioner’s position is incorrect for several reasons,” wrote McDade, saying the first of which was that “it is incorrect to refer to Trustee Edwards as ‘Ms. Edwards' (she is now ‘President Edwards’ after election to that Board position) as though she has no more duties or obligations as a trustee than a normal citizen would have.”
“When elected officials become so pompous with their titles,” responded Silbergleid, “that they demand that they be referred to as ‘trustee’ or ‘president’ instead of the more informal ‘Ms.’ or ‘Mr.’, the public should take note and be outraged especially because they work for us. It’s pompous and elitist.”
Edwards and Haldeman are currently scheduled to appear before the Ethics Commission on September 18 and 19. Information on the location and time will be posted on the Commission’s website.
Although the Commission is exempt from Nevada’s open-meeting laws, Cafferata-Jenkins says it is the body’s “default position” that all attempts will be made to open the hearings to the public.
CCSD spokeswoman Amanda Fulkerson declined to comment on McDade’s response, citing the postponed hearing.