Must Washoe County commissioners abstain from approving vote totals if they're a candidate?

• Question: Must county commissioners in Nevada recuse themselves from approving the vote totals in their own election?

• Short answer: No. Nevada law does not require commissioners to recuse themselves or abstain when reviewing vote totals. In fact, it requires them to approve election results.

That said, the state ethics commission does not appear to have weighed in on the issue before.

Pushback on 3-2 vote to approve primary results

When Washoe County’s 2024 primary results were delivered in June to the board of commissioners to “canvass” – or review and make a formal announcement of the vote totals – the numbers were approved 3 to 2.

Alexis Hill, Mariluz Garcia and Clara Andriola voted in favor while Mike Clark and Jeanne Herman voted against. (On Tuesday, the commission voted 3-2 against certification of a recount in two races.)

If one yes vote had flipped or not been cast, the commission would have failed to meet its requirement under Nevada law that it “shall” canvass the vote totals.

Some people quickly jumped on social media to claim that two of the yes votes should not have happened because Hill and Andriola are candidates this year.

On the Greater Reno Facebook page, the wife of county commission candidate Mark Lawson – Melissa Lawson – asked if it would be a conflict for those running in 2024 to vote yea or nay on the matter.

Frequent Reno City Council candidate Eddie Lorton responded that it was.

“Certifying the vote is a conflict of interest for Alexis and Clara – they have skin in the game,” he said. “They both should have abstained from the vote – it is an ethics violation and a conflict of interest.”

Is approving ballot results in one’s own election a Nevada ethics violation?

The Nevada Commission on Ethics is not permitted to provide legal advice or speculate on how it might determine a specific issue.

However, “I am not aware of a specific, similar prior opinion on this matter,” said Sam Harvey, the commission’s outreach and education officer.

A search of the ethics commission’s opinion database did not turn up any decisions on elected officials’ potential conflict of interest in approving vote totals that include their own elections.

The case against a conflict of interest

The issue could be spelled out clearer in Nevada law and code, but the Nevada Secretary of State’s office and the Washoe County District Attorney’s office say it’s not a conflict of interest.

The former oversees Nevada elections, while the latter advises the county commission on its legal obligations.

They say approving vote totals is required of county commissions.

When asked about this by the Reno Gazette Journal, the Secretary of State’s office pointed to Nevada Revised Statute 293 – covering elections – which is filled with the word “shall” for what commissioners must do. The word is not “may,” which would be the case if they had an option to do something else, or “should” if an action were recommended.

“The board shall meet and canvass the returns,” the law says. “The canvass must be completed on or before the 10th day following the election.”

It continues that the board shall note clerical errors and shall cause the county’s top election official to certify the results.

That means commissioners must approve the vote totals or else be in violation of state law, said Washoe County Chief Deputy District Attorney Mary Kandaras during a recent public meeting .

“This is not a discretionary act,” she said. “It's an act mandated by statute.”

Kandaras added that commissioners are voting only on whether the ballot results reflect the numbers that the Registrar of Voters' office reported, not whether there were violations of election law – that's handled by the Secretary of State's office, the Attorney General's office, county district attorneys and other law enforcement agencies.

Asked about commissioners abstaining or recusing if they’re a candidate, the DA’s office said in a statement, “An elected official who is running for re-election is not required to abstain from voting on matters properly before him or her, including the canvass of an election. Nevada law favors full performance of the duties for which an officer is elected.”

Besides, the DA’s office added, there is historical precedent that it’s not an ethics violation.

“For instance, in 2022, Nevada Supreme Court justices signed the final election results and made them official,” the DA’s office said. “Notably, one of the signing justices was on the ballot in that election and won, yet no recusal occurred.”

Washoe County Commission Chair Alexis Hill’s perspective

Hill emphasized to the Reno Gazette Journal that the job of a commissioner as outlined in Nevada law is to approve the vote totals.

“There is no exception for whether or not you're running for office,” she said. “It’s a duty of the office. Just because the Ethics Commission hasn't heard this issue before doesn't mean it's unethical to do the job of a county commissioner whether you're on the ballot or not.”

If commissioners had to recuse themselves if they are up for election, Hill said, then there would be times when three of five members – due to the election cycle – would have to abstain. This would leave too few members to conduct business.

“The reason we canvass the vote is so the public can come to the Board of County Commissioners to hear the results of the election before they are sent to the state,” she said.

The work of the registrar of voters is a public record, Hill said, and the job of the county commission is to canvass the vote as stated in Nevada law.

“So I'm prepared to conduct the full duties of the office because that is what the voters have asked me to do, and I think anyone who chooses not to do that – who chooses to vote no on the canvass – is not actually conducting themselves with the full requirements of the job,” she said.

“That's the real ethics issue – and that's what's happening now. That should upset our community and upset voters.”

Updated with clarifications to make clear the Secretary of State's office is not commenting on hypotheticals about election law.

Mark Robison is the state politics reporter for the Reno Gazette Journal, with occasional forays into other topics. Email comments to mrobison@rgj.com or comment on Mark’s Greater Reno Facebook page .

This article originally appeared on Reno Gazette Journal: Must Washoe County commissioners abstain from approving vote totals if they're a candidate?