Nixon Makes a Mistake – Garza-Ruiz Got it Right – Give Guadalupe its Money

In one of his first acts as County Counselor, former Judge Steve Nixon faced the task of interpreting the long-delayed Jackson County Ethics Code and applying it to the County Legislature. In a memorandum issued last week, Nixon misinterpreted the statute and reached the wrong conclusion – an unfortunate mistake by a newbie to the job.

Here’s the background. The Guadalupe Center is a wonderful social service provider on the West Side that has been helping Latinos since 1919. It’s long been a shining star of Kansas City nonprofits, and the County has long provided funds for some of its programs because they are well-managed and cost-effective.

Guadalupe Center recently hired Genaro Ruiz from Congressman Cleaver’s office to serve as one of three Associate Directors. Genaro Ruiz is married to Theresa Garza Ruiz, a county legislator who fought hard against an attempt to exempt the legislature from the provisions of the Ethics Code.

When contracts between the County and Guadalupe Center came up for renewal, Garza-Ruiz immediately recused herself and filed an affidavit pledging to “not participate in any discussion, debate, deliberation, or other decision-making process with regard to possible County funding of this agency . . .”. This language mirrors precisely the language found in Section 908 of the Ethics Code, which provides: “Except as otherwise provided by law, no public servant shall, in such capacity, participate in the discussion, debate or deliberation, or otherwise take part in the decision-making process on any agenda item before the County Legislature in which the public servant or a partner in interest has a conflict of interest.”

Garza-Ruiz got it right, but Nixon thinks that more is required. His opinion is that the situation is ruled by Section 910, which provides “The County is prohibited from entering into any contract with a business in which a public servant or a public servant’s partner in interest has a controlling interest involving services or property of a value in excess of $1,000.00″. It’s an understandable mistake.

But it is a mistake. The general prohibition on contracting with public servants stands as the general rule, while the section on how a legislator is supposed to handle herself when a conflict arises governs the specific situation faced by Garza-Ruiz. The relevant principle is generalia specialibus non derogant, meaning that the specific controls over the general. Generally, contracts with legislators’ partners are forbidden, but, specifically, not when the provisions of disclosure and recusal are followed. Indeed, if not for the general prohibition, the specific instructions on how to deal with it would be useless. (As would the provisions of Section 109, which even allow the conflicted legislator to remain in the room during a consent agenda vote after disclosing a conflict.)

Conflicts of interest are serious matters, and I respect Nixon’s efforts to provide strict guidance to the legislature. The timing of his opinion is unclear in the newspaper reports, and it is entirely possible that he issued his opinion before knowing of Garza-Ruiz’s recusal, in which case his advice would have been technically correct.

This tempest in a teapot must have brought some glee to those who opposed Garza-Ruiz’s crusading in favor of ending the Jackson County Ethics Blackout, and I’m not blind to the irony inherent in using the ethics code to harass Genaro and Theresa, two of Kansas City’s most upstanding politicos.

The insiders have had their fun and laughs about this, but it’s time to grow up and stop the horse-play, before somebody gets hurt. There are people served by the Guadalupe Center who could lose important services, and the West Side of Kansas City could suffer as a result.

30 Responses to “Nixon Makes a Mistake – Garza-Ruiz Got it Right – Give Guadalupe its Money”

  1. hyperblogal says:

    The ex-judge is either a bad lawyer or a political hack… I’m gonna go with both.

  2. gonemild says:

    I disagree on both points. A flawed legal analysis is not surprising not proof of bad lawyering – everyone has off days, and he is making an adjustment to having to analyze legal problems on his own. As a judge, he could count on the adversary system to present him with two opposing arguments, and he simply had to choose the more persuasive. That’s a whole lot different than analyzing something on your own and reaching a correct conclusion. He’ll catch on.

    As for the political hack accusation, I doubt it, though I don’t know him personally. Until shown otherwise, I’m going to chalk it up to an honest mistake.

  3. Anonymous says:

    Dan, are you saying it is OK for a spouse of a legislator to get a 6 figure job with an agency that gets county money? Really? It is the concept of ethics turned on its head. Taken another way, is it OK for Tindall’s spouse now to go to work for the SCLC? Would it have been OK for Rizzo’s wife to get a job with the Old Northeast, can Waites’ daugter now get a lucrative lobbying contract for Wayside Waifs? If you and Garza are right, then the answer is “yes thay now can.” What is OK for Garza, however, must be OK for everyone else, right? All that is necessary is they go through the formality of simply “recusing” themsleves when they vote? This is not an a cure any good government citizen could stomach. It stinks. If you are correct, I fully expect every family member and hack to start lining up for jobs as, after all, Garza will have blazed the legal trail for everyone. However, all of the above scenarios are highly improper on their face. As an elected official, you are often forced to turn down opportunities because of your position and the appearance it would create. Noone, including Garza is immune. If you are right Dan, then it is very very very wrong and MUST be changed.

  4. gonemild says:

    I suppose we’re experiencing ski weather, so you go straight to the slippery slopes, ehh?

    First off, these contracts long predated Genaro’s involvement with Guadalupe and long predated Theresa’s election to the County legislature.

    And, yes, I think it is okay if there is disclosure and recusal. That allows the other legislators to do their job, and it also allows the voters to decide whether there is anything to be upset about. If this were a brand new relationship between the County and Guadalupe, fast on the heels of Genaro’s new job, I would be throwing the red flag.

  5. Anonymous says:

    No, it would be criminal as well (not just a red flag). Does it change your opinion if she was the sponsor for the GCI dollars in November when her husband was interviewing with GCI (all the case here)? Are you honest to God saying that if tomorrow Bishop Tindall’s wife goes to work tomorrow as an “advisor” for Swope Parkway for $100,000 +, you are good with that? That is good government in your opinon? That if ALL of the legislative spouses get these kind of gigs that constitutes good ethics and exemplary government? I think that your high opinon of Ms. Garza may have clouded your judgement on this one issue. Do I think she is corrupt? No, but clearly she wants the extra income and is not just motivated by a spirit of high-mindedness, otherwise her husband would simply work as a volunteer and avoid the possible implications for the poor people of the west side. I also know this looks really really bad. Almost FBI bad. And in politics, the appearance alone of impropriety ought to be enough to invoke ethical cannons. If these type of arrangments become the norm for local government, then we are lost as a community. Our offices will be full of nothing but corruption, meaning those seeing an opportunity to cash in on their power, and we will have opened the door through our acceptance. At a minimum, you have to admit that this does not look good. Furthermore, if Nixon holds to his opinion (which I think he will), then her actions will wind up simply punishing the poor people of the west side that need help. Leadership is not easy, nor should it be profitable however.

  6. Anonymous says:

    Dan, if Stephen Nixon is not a political hack and we are to take his opinion as counselor as his heart felt legal opinion, why three months before did he fail to recuse himself in Royster v. Rizzo, where the Chairman Henry Rizzo’s son went before his court. Judge Nixon knew he had a $27 million budget controlled by Henry. He also failed to disclose that his wife Betsy Anne T. Stewart had a position with the county, approved through the legislature, until early 2010. Rizzo’s spouse also clerked in the very courts Judge Nixon presided over. Yet after delivering the election in court for Rizzo Nixon gets a $145,000 5 YEAR contract with a $600 per month car allowance?

  7. craig says:

    2 things Dan.
    1. Good response to anon @ 6:32.
    2. What happened to your Glorioso post? You have had some good posts in the past, but that was probably the best ever.

  8. Anon says:

    Dan I am going to disagree with you and agree fully with hyperblogal. Didn’t you read his legal opinion on the MO District 40 race? I encourage you. No, in fact, I beg you to call Will Royster, ask for his 100 pages of evidence of at best irregularities changing the outcome of that election and at worst complete voter fraud, read it and give your honest legal opinion. I thoroughly enjoy your posts with legal opinions. Right now, Tony’s Kansas City is the only blog giving legal opinions (HAHA!) and The Kansas City Star has completely ignored the situation except when Rizzo needs defending.

  9. Anon says:

    Now that Stephen Nixon is no longer a judge, that case badly needs legal opinions. Because I think it is full of errors that one would have to question both professionally and personally on an ethical level.

  10. gonemild says:

    I would love to read that opinion – send me a copy if you have it. I’ve also sought the famous 100 page packet, but haven’t received it yet. If I get a copy and it has compelling information in it, then I’d be happy to write about it. I agree that Tony has certainly chosen a side, and the Star has a blind spot for any news that does not fit the chosen narrative of its editorialists.

  11. gonemild says:

    Craig – it turns out that the post may have had an error in it, and, to be fair, I took it down until I can be certain that it is correct.

  12. Anonymous says:

    Everyone can spin all they want, but these types of issues make governments look very bad. Spouses should not be allowed to go to work for agencies their governments give money to. Period. That is about as basic to good government principles as anything. The opportunity to fraud and corruption otherwise is just too high.

  13. gonemild says:

    You must be kidding, anonymous. So, if the government uses Sprint, no public employee can be married to a Sprint worker?

    The problem is that you are applying a simplistic and unrealistic approach to a real-world issue. Let the grown-ups tackle this one, okay?

  14. les says:

    I don’t find any definition in the ordinance; how does being one of three assistant directors constitute “controlling interest,” required to apply Sec. 908? While I’m sympathetic to some of the anonymice–city/county contracts with relatives of elected types w/ input to selection are hardly unknown in KC–this case doesn’t seem ripe for corruption. If I get it, it’s a renewal of a contract in place before the conflict arose; it’s program funds, not general operating funds (although I’m aware that money is fungible); I assume Genaro Ruiz is no more special, nor more specially compensated, than any other asst. director. I think I side with Dan, but it’s no slam dunk. Recusal should be sufficient; it at least raises the level of the issue–if the whole council is corrupt, back room horsetrading gets around recusal, but is hopefully less likely.

  15. Anonymous says:

    No Dan, you are performing mental gymnastics to defend your position. A direct fee for routine service where the market has set the value for the service, and the government is charged the same rate as the public, AND their is a competitive bid process, is exempted SO LONG AS the spouse of the legislator is NOT in a managerial position (i.e. – performs what is called minmisterial functions), or does not have an ownership interest. Makes sense to me.

    Back to my question, under your theory, if Rizzo’s wife had gone to work for the Old Northeast as the “assistant director of policy” for $100,000 per annum, or Tindall’s with the Ad Hoc group, you would have blogged that that was kosher? And that anyone raising an eyebrow was simply “applying a simplistic and unrealistic approach to a real-world issue?”

    Final point, the Garza contact also may run afould of state and federal criminal statutes where the mere interest invoked does not require proof of mens rea. FYI – I am not going to go into a legal disertation (I don’t want to waste my time as your mind is already closed), but my job is/was to enforce those statutes, and there is a real problem forming for Garza.

  16. Anonymous says:

    First, let me compliment everyone on the high-level of discussion. Very informative on both ends. Let me add what I know. There is a meeting at the County right now involving two other members of the legislature and Garza team (they are not privately arguing the issue, and want a clear fix in a new ordinance). They are discussing an amendment to the ethics rules to allow for the Genaro job so long as Garza abstains from the vote. I also know that one of the legislators is putting on the table a job for his daughter with an agency that they previously turned down due to the possible conflict. All very interesting. I will post any follow-up I hear from the meeting (It is on my floor). They may propose the ethics code change for the Tuesday meeting.

  17. Anonymous says:

    BTW Dan, I just read your point, it is not that “any public employee” can’t be married to a Sprint employee, it is that no LEGISLATOR can. Big difference. Only those that by law make the contracts. Joe or Jane blow doesn’t factor in.

  18. gonemild says:

    Hahaha – too funny. You lose.

    So, in the face of my analysis, you’ve been forced to back away from your horribly flawed simplistic analysis and come up with a wildly different one. Now we’re talking about non-ministerial acts, direct fees, market values and bid processes instead of your prior flawed analysis. What happened to that “period” you used before? Would you care to acknowledge that you were flat-out wrong when you made your prior argument?

    That awful mistake makes your claims of experience in dealing with issues like this one seem pretty far-fetched. If only I had a nickle for every anonymous commenter who made stuff up about knowing more than they do, and then hinting darkly about “a real problem forming”. If you are so smart, go ahead and point us to those state and federal criminal statutes you just made up. (Really, you enforced both state and federal statutes? Were you some kind of super-prosecutor, or maybe a comic book crime fighter?)

    As for your hypotheticals – if Rizzo’s wife got a job at Old Northeast, and he disclosed and recused when the county renewed contracts that had existed since 1989, he would have done everything required of him under the ethics ordinance. If I wanted to claim the deal was fishy, I could make that argument and try to persuade people it was a problem, but his behavior would have been within the law.

    One thing I would NOT do under such a hypothetical would be to resort to ANONYMOUS attacks based on WEAK arguments that I would be forced to abandon, and then make sh*t up about how I used to enforce statutes I cannot cite. That’s just not how I roll.

  19. gonemild says:

    Thanks for the info, anonymous 11:37 (obviously, I need to figure out how to adjust the time stamp on comments, since it’s really only 10:47 now).

  20. Anon says:

    Dan regarding your 11:42 post. I have a better hypothetical. How about if let’s say Henry Rizzo’s wife worked for the Jackson County Legislature making $50k for enough years to collect a pension all while Henry Rizzo was on the Legislature and even Chairman of the Legislature and Budget Committee? How about if Stephen Nixon’s wife also worked for the County enough years to collect a pension. And what if Henry Rizzo’s daughter-in-law worked for the County Legislature during 2007, later The County Courts and now works for The U.S. Circuit Courts?

  21. gonemild says:

    Interesting hypothetical. I have no idea whether a word of what you write is true, which is yet another reason that disclosure is such a vital part of the new Ethics Code that Rizzo fought against so hard.

  22. Anon says:

    All of it is true. Look at Stephen Nixon’s contract. Not only is he the first County Counseler to get a contract, he is also the only county counseler to have their contract end the exact day he is to receive a second pension.

  23. Anon says:

    Stephen Nixon throws MO- 40 race. Gets fat salary ,car allowance and second pension for his hard work. His leaving opens a judge seat to which Jim Kanatzar will eventually take at the pressure of Mike Sanders so that Mike Sanders and Henry Rizzo can also pay back another old friend who got involved in the M0-40 race; Michael Gunter who will run for Prosecutor.

  24. Anon says:

    This is almost third world. Henry Rizzo and Mike Sanders are clearly not afraid of the local democrats or the people of Jackson County holding them accountable for their corruption and petty political games which are now going to cost an entire community and argueably one of Kansas City’s most honorable cultural and community centers and programs it’s proper funding. Since when did being a Jackson County Democrat mean you were anti-Latino?

  25. Anon says:

    Dan Ask yourself this. What has Sanders gotten himself into or what does Henry Rizzo have on Sanders that would make him turn his back on Nutter?

    Dig Dan Dig. You might be surprised at what you will find.

  26. Anon says:

    Dan Ask yourself this. First Garza-Ruiz and now they are going after Crystal Williams? What has Sanders gotten himself into or what does Henry Rizzo have on Sanders that would make him turn his back on Nutter?

    Dig Dan Dig. You might be surprised at what you will find.

  27. Anonymous says:

    Danno, can’t the two sections be read in harmony? Isn’t that the first rule of construction, to read them in harmony if you can? One way to look at this: If it is greater than $1,000, you can’t do it…no matter whether you recuse yourself, etc.

  28. gonemild says:

    Anonymous 2/1 – That’s a decent reading of the ordinance. Good point. I’d love to see this all get tested out in court, but I don’t see that happening. The ex head of the Ethics Commission – who was in charge when the code got redrafted – agrees with me, but I know that’s not dispositive.

    I hope they clarify the code and move forward.

  29. Anonymous says:

    You endorsed two crooks in Crystal and Theresa and now you have to support them please stay out of politics you got it very wrong.

  30. gonemild says:

    Crystal and Theresa are the best people to serve on the County legislature in decades. To call them crooks is to expose your ignorance and rotten understanding of how politics ought to be practiced. I’m as proud of them as I have ever been.

    If you disagree, please back up your accusation that they are crooks with specific factual information demonstrating that they are, in fact, crooks. Bluster and slander just won’t cut it on a blog that deals with facts and logic.

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