The late Supreme Court Justice Potter Stewart is most remembered for the greatest sentence ever written in a Supreme Court opinion, in which he explained hardcore pornography: “I know it when I see it.” But Stewart made two other wonderful comments that are particularly noteworthy: “Government cannot function in a goldfish bowl,” and “Ethics is knowing the difference between what you have a right to do and what is right to do.”
Which brings us to two recent developments about ethics, neither of which is nearly so thrilling as Stewart’s statements, involving Rep. Shelley Berkley and North Las Vegas Mayor Shari Buck.
Berkley faces a House Ethics Committee investigation of allegations that she may have violated conflict of interest rules. Republicans filed the complaint after a New York Times story about her support for a kidney transplant program at University Medical Center. Her husband, Dr.
Larry Lehrner, is a nephrologist, and his practice had a contract in the six figures to provide services for the UMC program. The Times also reported that she opposed Medicare cuts for dialysis treatment and co-sponsored bills for kidney care.
Berkley said she should have disclosed more fully, but she thought everybody involved knew about her husband—she certainly hasn’t hidden him or his profession. She also made the point that just because her father is a veteran, does that mean she should do nothing to help veterans?
Buck and her husband supported Wade Wagner for the North Las Vegas City Council Ward 4 seat that he won by one vote over incumbent Richard Cherchio. No issue with that. But with such a close vote, the City Council had to decide whether to do a recount or hold a new election. Buck asked the city attorney’s office for advice, then announced to the Council, “I want to take this opportunity just to express my opinion before I abstain and leave the room again. I have grave concerns that the direction this Council has chosen to go in is not only wrong but is illegal.” Then she left the room.
The Nevada Ethics Commission and Buck agreed that this was “advocacy” and thus a violation. But there’s no penalty because it was “non-willful,” since she sought an attorney’s advice.
Last week, this space discussed Bob Beers, the former assemblyman and state senator just elected to the Las Vegas City Council, suing his opponent, Ric Truesdell, over claims about his ethics. Beers said he didn’t act unethically, and he even asked the attorney general for an opinion to make sure.
Justice Stewart was right on both counts. We can talk all we want about everything in government being open, but we cannot enter people’s minds or know everything said in places ranging from a dinner party to a bathroom. At some point, we must trust our elected officials that they know to do the right thing without legal advice.
But they shouldn’t, as Stewart suggests, need to ask an attorney (Berkley is one) what they can do legally. Disclosure is all well and good, and they should disclose, but they also should know enough to step aside if any question exists.
Buck shouldn’t have needed to ask, nor should Beers. Berkley’s situation is trickier. She should have screamed to the heavens each time any such issue came up that her husband is a nephrologist, which would have expanded everybody’s vocabulary. But even if she had and then gone forward, would there have been questions? Of course, and she would have had to make the same statement that she was trying to help UMC and her constituents, and that she has strong views on Medicare funding that have nothing to do with the renal system.
Will all of this hurt Berkley? Even if the Ethics Committee decides that this isn’t a violation, she will be attacked for it and it could do damage. She might be wise to have an ad ready showing a kidney patient saying that he or she would be dead if not for Berkley. And don’t be amazed if the ad includes the statement that Heller voted twice to kill Medicare under Rep. Paul Ryan’s plan. That vote was ethical. But was it the right thing to do?