Ethics Commission counsel confirms Nevada blind spot
The Nevada Ethics Commission has determined that the superintendent of the Clark County School District — one of Nevada’s most powerful government positions — is not a public officer as defined by Nevada’s ethics laws, nor subject to state financial-disclosure rules.
Current Superintendent Dwight Jones had asked the commission for a determination. He also asked whether Nevada law prohibited him from accepting privately donated funds for relocation expenses under a plan established by CCSD trustees.
With a student enrollment of 309,335 for the 2009-10 school year, the Clark County School District is responsible for the education of 71 percent of all Nevada’s public school students. As of the beginning of the year, CCSD employed an estimated 38,000 people, making it the largest single employer in the state. According to CCSD’s tentative budget summary filed on April 15, the district anticipates receiving $730 million in DSA revenue from the State of Nevada in Fiscal Year 2012. Thus, the Clark County School District expected to receive an estimated 66 percent of the state’s K-12 general-fund appropriations over the 2011-13 biennium — some 25 percent of the state’s general-fund appropriations for the biennium.
Yet, despite the commission’s belief that the Clark County School District superintendent does exercise public power, trust and duty, and that the functions and duties of the position otherwise meet the definition of a public officer, the permissive language of NRS 391.100, wrote Commission Counsel Yvonne Nevarez-Goodson, is not mandatory, and therefore the position of superintendent is not “established” by statute. An NPRI article, “Nevada schools’ billion-dollar blindspot,” had raised the issue in August 2010.
“The position of Superintendent of Schools of Clark County,” advises a March 18 letter from the commission, “is not a position ‘established by the Constitution of the State of Nevada, a statute of this State or a charter or ordinance of any county, city or other political subdivision.’” Therefore, Jones does not “qualify” as a public officer and is “not required to file a [Financial Disclosure Statement] pursuant to NRS 281A.610.”
This permissive language of NRS 391.100 “suggests that the position need not be created at all and therefore is not ‘established’ by statute,” writes Nevarez-Goodson. The commission also determined that county ordinance also did not establish the position.
Nevertheless, the commission has submitted a bill to amend Nevada’s statute defining public officers to include positions such as school district superintendents. Senate Bill 391 passed out of the Senate Legislative Operations and Elections Committee on April 14 with an amend-and-do-pass recommendation. No amendments have been posted as of April 21.
Arguing for its ruling, the Ethics Commission cited UCCSN v. D.R. Partners, 18 P.3d 1047 (2001). In that case, “the position of community college president was created not by any statute, but administratively by the Board,” wrote Nevarez-Goodson, quoting D. R. Partners. Consequently, “for purposes of laws applicable to public employees and officers, generally,” the college president was not deemed a “public officer.”
In other matters, the commission called into question the “artifice” of the Clark County school board in arranging for Jones’ housing/relocation costs paid as a “pass-through” from the Public Education Foundation. According to the opinion, Jones’ employment contract provides that the school district will reimburse Jones’ temporary housing or relocation costs up to $5,000 a month for no more than six to eight months. This money will come from private donations to a foundation account called the “Superintendent’s Transitional Housing Fund.” The foundation will then transfer the funds to the school district to be used to reimburse the superintendent.
Wrote Nevarez-Goodson: “Although the Commission determined that accepting these funds does not create an ethical concern for the public employee who accepts them,” as part of a pass-through, “the Commission nonetheless believes that the artifice of the Board or any other public entity using foundations or other similar organizations to engage public officers and employees in commitments for economic opportunities is poor policy and contrary to the intent of the Ethics Law to encourage public officers and employees to maintain the public trust.”
CCSD provided the March 18 ethics ruling, along with accounting records that indicate that the foundation has transferred $22,040 in pass-through contributions for Jones’ housing. A list of donors can be found on the foundation’s website, here. School district records also indicate that no money, at this time, has been transferred to Jones from the transitional housing account.