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The Section serves as a collegialforum for its members, the profession, and the public to provide leadership and educational resources in
urban, state, and local government law and policy.
Local Government and the First
Amendment at the Supreme Court:
Legislative Voting as Speech and Union Grievances as Petitions
By Robert H. Thomas
1. Introduction
The U.S. Supreme Court decided two First Amendment
cases this Term of special interest to attorneys practic-
ing state and local government law. In Nevada Comm'n
on Ethics v. Carrigan,' the Court concluded Nevada's
Ethics in Government Law, which requires elected and
appointed government officials to recuse themselves
from voting when they might have a conflict of interest,
does not violate an official's right to vote. By upholding
Nevada's ethics laws, the Court allowed state and local
governments to continue to regulate the conflicts of
interests of elected and appointed government officials
and other government employees. In Borough of Duryea
v. Guarnieri,' the Court applied the long-standing bal-
ancing test applicable to government employee speech to
government employee union grievances and held that a
public employee-in that case, a police chief-was pro-
tected by the Petition Clause against retaliation for filing
a union grievance only if it addressed a matter of public
concern. In both cases, the Court allowed state and local
governments to exercise broad discretion in how they
manage their elected officials and employees.
II. Carrigan. Legislators' Voting Is
an Exercise of Power, Not Speech
The technical legal question before
the Court in Carrigan was wheth-
er legislative voting by an elected
Robert H. Thomas (www. inverse
condemnation.com) is a Director with
Damon Key Leong Kupchak Hastert
in Honolulu, Hawaii, and Berkeley,
California. He is the CLE Directorfor
the Section and chair ofthe Section's
Condemnation Law Committee.
official was speech and if so, whether it was protected
by the First Amendment. The Court's opinion reaffirmed
the core principle of representative government: when
casting votes, elected and appointed officials are not
speaking for themselves, but are exercising power that
belongs to the people.
A. Nevada' Ethics Statute Requires Recusal
for Close Relationships
The case began when Michael Carrigan, a city councilman
in Sparks, Nevada, did not recuse himself from consider-
ing an application for development filed by a hotel/casino
project known as the Lazy 8. The developer's consultant
was Carrigan's longtime friend and campaign manager,
during each of his two election campaigns.' The Nevada
Ethics in Government Law prohibits public officers,
including local elected officials, from voting or advocating
on matters in which their independent judgment could
be reasonably questioned because of a commitment in
a private capacity. Nev. Rev. Stat § 281A groups those
private commitments into five categories, including those
to family and household members, employers, and certain
business contacts, as well as [a]ny other commitment or
relationship that is substantially similar to a commitment
or relationship described in this subsection.
(continued on page 13)
* Chair's Message, page 3
* Section News
2011 Fall Meeting in Tucson, pages 4-5
2010-11 Student Excellence Awards, page 7
* Is Zoning Coming to an Ocean Near You?,
page 6
* Supreme Court Watch, page 9
Vol. 35, No. 1, Fall 2011](ViewImageLocal?handle=hein.journals/stlolane35&div=1&collection=&method=preview&ext=.png&size=3)
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