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…