Did Gov. Jim Gibbons commit an ethics violation by allegedly pressuring the Elko County assessor to grant him a tax break to which he was not entitled? Our answer may surprise you, because it’s “no.”

Nevada Democratic Party Executive Director Travis Brock, in a well-written brief filed with the state Ethics Commission, accuses Gibbons of a violation of NRS 281A.400 (1), which says this:

A public officer or employee shall not use his position in government to secure or grant unwarranted privileges, preferences, exemptions or advantages for himself, any business entity in which he has a significant pecuniary interest, or any person to whom he has a commitment in a private capacity to the interests of that person.

Gibbons, Brock alleges, pressured Elko County Assessor Joe Aguirre into reducing the property tax bill on land the governor owns in Lamoille from $2,000 to slightly less than $40, first by appearing and asking personally for the land to be classified as “agricultural” rather than “residential.” After he was rebuffed, Gibbons hired lawyer (and Nevada Tax Commission member) John E. Marvel to represent him in the matter.

There are two issues here: One, did Gibbons use his position in government to secure a privilege? And two, was that privilege unwarranted? The answer to the first question, we submit, has to be no. Here’s why:

First, Gibbons didn’t “use” his position to do anything. The state Supreme Court ruled in a similar case in which Las Vegas Mayor Oscar Goodman was accused of using his position in government to benefit his son, by hosting a cocktail party at which his son’s new software product was touted. The commission in late 2004 found he did violate the law. But Goodman appealed to District Court, which overturned the finding, which spurred the Ethics Commission to appeal to the state Supreme Court.

And in the 1997 case of Nevada State Commission on Ethics v. Oscar B. Goodman, the court held that Goodman did not violate the law, because he didn’t “use” his position in government to do anything.

The court did cite several examples from the Ethics Commission’s own files of cases in which public officials did use their positions in government to secure privileges: One person used a government agency’s credit card for personal purchases; another used her position to hire a job candidate so another position would be available for her husband; one used his position to compel a company to pay money to a non-profit corporation; and yet another diverted business from a state agency to a private company.

Notice anything there? In each case, the public official used the power or procedures of a government agency to do something unethical. In the instant case, Gibbons did no such thing. He simply asked for a tax exemption to which (he claims) he thought he was entitled. He didn’t tell the Agriculture Department to tell the assessor the land was used for grazing. He didn’t have a state agency classify the land as agricultural to support his case. And he didn’t have the Tax Commission overrule the assessor, although he did hire one of its members in a private capacity to be his attorney.

Second, you may object that Gibbons’s person and title are so inexorably intertwined, a request from the governor for relief from taxes cannot help but, de facto, constitute the use of his position in government to secure an unwarranted privilege. Unfortunately, that argument fails in that Aguirre flatly refused the governor’s request for the tax exemption! Although he says he felt intimidated by the governor’s request, the intimidation was obviously not sufficient to get him to capitulate.

Moreover, if you were to argue that Jim Gibbons the person and Jim Gibbons the governor are inseparable for purposes of the ethics statute, you would be forced to argue that governors (and, presumably, other elected officials) must inevitably give up certain rights as citizens. Suppose the governor were to get a parking ticket while canoodling with a lady at the rodeo. (We know, that’s far-fetched; just work with us here.) And suppose the governor believed he was legally entitled to park there. If he were to show up at the traffic appeals window, and the clerk were to say he or she felt intimidated by the governor’s presence, that would, of necessity, constitute an ethics violation, wouldn’t it? But what if the governor was entitled to have the ticket voided? You cannot circumscribe his rights as a citizen simply because of his title. And he’s entitled to ask for a tax break, as we all are.

Third, Brock argues Gibbons improperly employed a subordinate to help him secure his unwarranted privilege. But Marvel is not “a subordinate.” He’s a member of the Tax Commission who was appointed by a former governor, Kenny Guinn. And as we learned from the recent flap over the state Medical Board, Gibbons cannot oust members of state boards at his whim. (Whether it was appropriate for the Tax Commission, which can set policy that assessors must follow, to intervene on Gibbons’s behalf is a separate matter, and Brock wisely complained against Marvel before the ethics commission as well.)

But even if you were to argue that Marvel was part and parcel of a conspiracy to pressure Aguirre to grant an unwarranted tax exemption, that argument still fails when you consider that Aguirre also turned Marvel down! He told the attorney that, while the entire spread of land in Lamoille may have qualified for an agricultural tax break, the tiny 40-acre portion that Gibbons purchased from disgraced former Judge Jerry Carr Whitehead, now standing on its own, did not. (Under the law, the property must generate at least $5,000 in annual revenue and produce half the feed necessary to support grazing in order to qualify for the tax break. More on this below.)

It was only after Marvel produced two checks totaling $5,700 that Aguirre finally relented, granting the exemption. He said he “felt like they [Gibbons and Marvel] backed me into a corner.” And, in fact, they did, by supplying him with the evidence — even questionable evidence — that the little parcel qualified for a tax break. Aguirre had no choice at that point but to either grant the exemption or call the governor a liar. (And Gibbons has done his fair share of lying, even about this matter, so you could have excused Aguirre had he gone that route. He didn’t.)

Therefore, based on the absence of evidence that Gibbons used his position in government, as defined by the Nevada Supreme Court in Nevada Commission on Ethics v. Goodman, it’s clear that the governor didn’t violate NRS 281A.400(2).

Now, as to the second question, whether the privilege was unwarranted. On this, it seems clear that the land in question cannot possibly qualify for a tax exemption as “agricultural” land. Others have examined this question in great detail — here, and again, here — so there’s no need for us to repeat what’s been so well explained elsewhere.

The fact that Gibbons was able to produce $5,700 in checks from Whitehead, ostensibly for grazing leases on the tiny plot, raises other questions. Why would Whitehead overpay so radically for the lease? Was this simply a sham to convince Aguirre that Gibbons qualified for the exemption, when he really didn’t? Did Gibbons return the money to Whitehead, or strike an agreement to do so at some future date? Could Whitehead have found a way to thwart campaign finance laws, by proffering unreported contributions? These questions bear further, and immediate, investigation by somebody with subpoena power and access to forensic accountants, because, on their face, they suggest possible wrongdoing.

But that would constitute criminal fraud, not a simple ethics violation. Of that, we believe, the governor is innocent. You’ll want to bookmark this page; you don’t see us forced to type those words too often. In fact, we’ve been among Gibbons harshest critics. If we truly thought a charge of ethics violations could be sustained, we’d be driving the bandwagon. But on this, we think, Gibbons stands wrongly accused.

And that’s before you even consider that he appointed several members to the commission, which has as its executive director a former Republican Party officeholder, and which has proved to be nearly toothless in finding violations in adverse cases. But that’s another Nevada story for another day…

Look, we at Various Things & Stuff have no idea what happened at the home of Assemblywoman Francis Allen on the night of May 17, when her husband of seven weeks, Paul Maineri, was stabbed in the arm and required three stitches. And, quite frankly, we like Allen and wish her well.

But damn, if we ever stand accused of committing a crime in Las Vegas, please let us come before Las Vegas Justice of the Peace Joe Bonaventure.

Why? Good question. First, the background: On the night in question back in May, Allen and Maineri got into a spat in front of friends, and argued after those friends left. The argument moved into the kitchen (always a mistake, people!) where — in the original version of the tale — Allen grabbed a knife and stabbed Maineri in the arm.  He drove himself to the hospital (toting the knife in question in a plastic bag) where he told a doctor and a Metro Police officer that his new bride was the assailant.

Whoops. Nevada law requires the arrest of at least one party to a domestic violence incident. According to the police report, when detectives told Maineri that Allen was going to be arrested and jailed (not to mention the fact that she’s a public figure who would wind up getting her mugshot in the newspaper) he recanted. According to a police report, he “…said that he wanted to recant his story and give a taped statement now in which he would say that he stabbed himself if it would keep her from getting arrested.” It didn’t.

(Notably, Allen told cops that Maineri had stabbed himself, according to the report.)

Now, the fallout. After first getting immunity from Bonaventure, Maineri said in court Thursday that he and Allen had argued, and that he had stabbed himself. Why he would do that, and why he would initially lie, well that’s still a mystery. And so is the reason Bonaventure threw the charges against Allen out.

“I find this statement made today, that this offense did not occur, credible,” he said.

And that brings us back to why we so desperately want this judge if we’re ever in the dock. “Check this out, your honor,” we’d say. “We couldn’t have robbed that bank. You see, a shape-shifting alien from the future came back in time, and took our form. It robbed the bank, and took the money back to the future, where it’s actually worth something, as opposed to, you know, today. Anyway, we can’t get the money back and they can’t arrest the alien, since we don’t have the technology today to travel through time. But that’s what happened, judge. Honest.”

Case dismissed, right?

Only in Nevada, where we’re all at risk from time-traveling, shape-shifting aliens.

There is no better way to start the week than with Quick Hits. Enjoy!

• You know, it’s like we don’t even know President George W. Bush anymore! He says he won’t negotiate with terrorists, but there he is, being all nice to North Korea and sending an envoy to talk to the Iranians about nukes. He says he won’t set a timetable to get out of the misbegotten Iraq war, but he and the Iraqis agree on a “time horizon” for withdrawal. Next thing we know, he’ll be reading a book!
• “This is not a political move in a campaign season,” says Clark County School District Trustee Terri Janison, of delaying a $7 billion school construction bond until 2010, which was totally a political move in a campaign season.
• It looks like state Sen. Dennis Nolan was every bit as effective as a character witness to accused sex offender Gordon Joseph Lawes as he has been advocating for red-light cameras and seat-belt laws up in Carson City. Which is to say, not effective at all: Lawes was quickly convicted of the charges Friday.
• Gosh, do you think Nolan’s political opponents might use that “character witness for a convicted sex offender” against him in a couple of years, when he’s up for re-election? That would make a hell of a mailer!
• University Regent Ron Knecht is at it again, slamming Chancellor Jim Rogers for all that truth-telling Rogers is doing in his weekly memos to the board. “The tone, the personal criticism, the vendetta that he [Rogers] has against Gov. [Jim] Gibbons, that I think is really inappropriate,” Knecht says. Here’s the thing: It’s not surprising that Rogers is incensed at Gibbons, whose decisions are ruining higher education. No, the real question here is why Knecht isn’t outraged.
• Local TV station has two fake, commercially designed, product placement accessories on morning newscast. Oh, and there’s also fake McDonald’s iced coffee. Bam!
• But seriously, folks, given that the iced coffee is fake, we know at least it won’t melt down. Unlike, say, Monica “The Queen” Jackson! Bam! We’ll be here all week, folks. Be good to your waitress…

You won’t hear us at Various Things & Stuff say very often that Review-Journal Editor Tom Mitchell has a point. Other than open records, open meetings and open bottles of fine wine, he and we don’t agree on much.

But after checking out Mitchell’s Sunday column, we have to confess: The guy may have a point on this term limits thing.

While the rest of us have been debating whether the measure was approved in a constitutional way –  which, by the way, is still very much in dispute — Mitchell argues that the plain language of the initiative made it clear that term limits in Nevada were retroactive, limiting even those holding office at the time the measure was approved to a total of 12 years in any elected office.

Why does he say that? Check out the plain language now enshrined in Article 4, Sections 3 and 4 of the Nevada Constitution:

No person may be elected or appointed as a member of the Assembly who has served in that Office, or at the expiration of his current term if he is so serving will have served, 12 years or more, from any district of this State. (emphasis added)

Got that? It could reasonably be read to conclude that, if Senator X had been elected to two terms (eight years) before 1996, and was running for re-election in that year, he could only be elected to one more term, for a total of 12 years, before being banned for life from serving in the state Senate. And if Assemblywoman Y had already served six terms (12 years) before 1996 and was getting ready to run for re-election in 1998, well, she would be banned by the constitutional amendment.

So why have lawmakers who had decades of service before the 1996 final approval of term limits continued to serve? Attorney General Frankie Sue Del Papa ruled that unless the framers of a constitutional amendment declare specifically they intend the measure to be retroactive, it is only applied prospectively. So that meant the term limits clock “started ticking” in 1996, when the measure was certified, not at the beginning of a person’s 12 years of service in the Senate or Assembly. (By the way, the same language applies to local government officials, too.)

But how else are we to interpret the italicized portion in the law, above, if not to conclude the framers intended it to apply retroactively, and take effect immediately? Term limits backer Sig Rogich told Mitchell that term limits weren’t supposed to start until 1998, but it’s possible he’s now covering for his old buddy Bruce Woodbury, the longest-serving county commissioner in Nevada who may very well see his career end this year because of how term limits are interpreted.

But this retroactivity is an intriguing concept. If, as Mitchell believes, some lawmakers have been serving illegally, could their votes and public acts be invalid? Could tax increases, controversial laws and state business transacted by lawmakers serving beyond their 12 years be void? Shouldn’t all those with 12 years of service in a single office be banned from seeking re-election and forced from office immediately?

Not so fast: Mitchell’s interpretation presumes term limits were approved constitutionally. We don’t think they were, so this is merely an academic exercise. Unless…

Unless the state Supreme Court determines term limits are constitutional, which we think it will, and very soon. In that case, the Mitchell interpretation must be considered, which would mean plenty of people with more than 12 years under their belts right now are banned from running again.

It’s quite a dilemma. We wonder if perhaps the court will sidestep it entirely, upholding term limits, but setting the “start date” at the certification of the election in November 1996. That would screw local officials such as Woodbury, but allow state lawmakers to go around one more time. We’re guessing that’s what will happen.

But you have to admit, Mitchell does have a point.

He'll raise your taxes -- and steal your lady.

Gov. Jim “Gibber the Fibber” Gibbons can scarely open his mouth without a falsehood tumbling out. And, given his incessant succession of mendacities, imbecilic remarks and public indiscretions (not to mention his incurable propensity for scandal), maybe Gibbons Fatigue has finally set in among the mainstream media.

That might explain why Midnight Jim’s espousal of a de facto increase during the one-day not-so-special session of the Lege went unremarked. In reaction to a Nevada Supreme Court ruling from last March, decreeing that comped meals in casinos are ineligible for sales taxes, one of the Gibber’s last-minute proposals for filling the state budget was to amend the law to retroactively legitimize the sales tax. That would have enabled the state to hang onto $150 million (which later turned out to be more like $100 million). And casinos that were abiding by the Supremes’ March ruling would find themselves with a new tax bill to pay (and would correspondingly have less incentive to comp you a free buffet the next time you rack up a bunch of slot-club points).

Within hours, casino lobbyists made their displeasure known and from there it was a swift dance to the killing ground. But we’re promised a second visit to the issue in the ‘09 Lege.

At which point, somebody may finally ask Midnight Jim — if he’s still in office — just how this squares with his endless “I won’t raise your taxes … no new taxes … no new taxes … She’ll raise your taxes … no new taxes … no new taxes” mantra. Since the comped-meals tax will have been defunct for over a year, it ought to be harder to argue that what you’re doing amounts to “closing that loophole.”

Then again, the people who do Gibbons’ thinking for him may have concluded that what Midnight Jim was proposing was so convoluted that nobody would realize that it actually was a new tax (replacing something that had been deemed unconstitutional). Or just maybe they took note of the unpopularity of the casino industry among the public at large and figured that if the Gibber socked it to the gamers with a sneaky little tax boost, few would object.

Now, in view of the privation that is being visited upon many Nevadans and is about to get worse, it doesn’t feel good to know that the state is having to refund 100 million desperately needed bucks. But when you consider that the only accomplishment to which Governor Gasbag can point is that taxes haven’t gone up, you’d think at least one of our daily newspapers, say, might note that if Gibbons didn’t raise taxes back on June 27, it wasn’t for lack of trying.

So, after being elected on the strength of a single promise — and now having broken it — what does Midnight Jim have left in his bag of tricks?