Common use of TERMS / CONCLUSIONS OF LAW Clause in Contracts

TERMS / CONCLUSIONS OF LAW. Based on the foregoing, Derbidge and the Commission agree as follows: a. Each of the findings of fact enumerated in section 4 is deemed to be true and correct. x. Xxxxxxxx holds public office which constitutes a public trust to be held for the sole benefit of the people of the State of Nevada (in particular, the people of the City of Xxx). x. Xxxxxxxx has a commitment in a private capacity to the interests of Xxxxx, a person with whom he shares substantial and continuing business relationships, as Xxxxx and Xxxxxxxx are shareholders, officers and directors in Sagebrush 66 and JDD. See NRS 281A.065(5) x. Xxxxxxxx failed to avoid conflicts of interest between his private relationships/interests and public duties and violated the provisions of NRS 281A.020 and 281A.420(1) and (3) of the Ethics in Government Law by failing to fully disclose the full nature and extent of his conflicts and failing to abstain from voting during the May 9, 2013 and June 13, 2013 City Council meetings regarding the City’s Water Project contract with JCR which affected Xxxxx’ interests, albeit in business ventures unrelated to the Sagebrush 66 or JDD. e. At the time of his actions on May 9, 2013 and June 13, 2013, Xxxxxxxx had not yet finalized the terms of the stipulated agreement in RFO 13-05C which required disclosure and abstention on JCR matters, and he misinterpreted City Attorney Xxxxx Xxxxxx’ general advice concerning disclosure and abstention offered on January 24, 2013. However, Xxxxxxxx was aware at the time of his votes that his relationship with Xxxxx was the subject of another third-party request for opinion questioning his disclosure and abstention obligations, and rather than heeding Xxxxxx’ specific advice to Derbidge regarding abstention on Xxxxx/JCR matters, Xxxxxxxx applied his incorrect interpretation of Xxxxxx’ general advice and made an insufficient disclosure of his conflict and voted on the JCR matters. x. Xxxxxxxx now fully understands that he should have disclosed sufficient information regarding his Sagebrush 66 and JDD business relationships with Xxxxx, a person to whom he had a commitment in a private capacity as a substantial and continuing business associate, to inform the public of the nature and extent of his relationship and Xxxxx’ interests in the Water Project. The disclosure should have also included information regarding the potential effect of Derbidge’s action or abstention on the agenda items and the effect it may have had on Xxxxx’ interests. See In re Woodbury, Comm’n Opinion No. 99- 56, (1999) and In re Derbidge, Comm’n Opinion No. 13-05C (2013). x. Xxxxxxxx also understands that he must abstain from voting upon matters regarding Xxxxx and/or JCR based upon his commitment in a private capacity to Xxxxx’ interests. x. Xxxxxxxx’x actions during the May 9, 2013 and June 13, 2013 meetings were willful, and the acts constitute a single course of conduct resulting in a single wilful violation of the Ethics in Government Law, implicating NRS 281A.020, NRS 281A.420(1) and (3). i. Pursuant to NRS 281A.480, Derbidge will pay a total civil penalty of $2,000 on or before 90 days after his receipt of the fully executed stipulated agreement in this matter. Derbidge may pay the penalty in one lump sum payment or in monthly installment payments as negotiated with the Commission’s Executive Director. j. This agreement depends on and applies only to the specific facts, circumstances and law related to this RFO now before the Commission. Any facts or circumstances that may come to light after its entry that are in addition to or differ from those contained herein may create a different resolution of this matter. k. This agreement applies only to these matters before the Commission and is not intended to be applicable to or create any admission of liability for any other proceeding, including administrative, civil, or criminal regarding Derbidge.

TERMS / CONCLUSIONS OF LAW. Based on the foregoing, Derbidge Xxxxxx and the Commission agree as follows: a. Each of the findings of fact stipulated facts enumerated in section 4 is deemed of this Stipulated Agreement are agreed to be true and correct.by the parties.3 x. Xxxxxxxx holds Xxxxxx held public office which constitutes a public trust to be held for the sole benefit of the people of the State of Nevada (in particularNevada, and specifically the people citizens of the City of Xxx)White Pine County. x. Xxxxxxxx Xxxxxx has a commitment in a private capacity to the interests of his daughter Xxxxx. See NRS 281A.065(3). x. Xxxxxx has a commitment in a private capacity to the interests of Midway Gold through his agreement to sell his well for the Gold Rock Project, which constitutes a person with whom he shares substantial and continuing business relationships, as Xxxxx and Xxxxxxxx are shareholders, officers and directors in Sagebrush 66 and JDDrelationship. See NRS 281A.065(5) x. Xxxxxxxx failed to avoid conflicts of interest between his private relationships/interests and public duties and violated the provisions of NRS 281A.020 and 281A.420(1) and (3) of the Ethics in Government Law by failing to fully disclose the full nature and extent of his conflicts and failing to abstain from voting during the May 9, 2013 and June 13, 2013 City Council meetings regarding the City’s Water Project contract with JCR which affected Xxxxx’ interests, albeit in business ventures unrelated to the Sagebrush 66 or JDD. e. At the time of his actions on May 9, 2013 and June 13, 2013, Xxxxxxxx had not yet finalized the terms of the stipulated agreement in RFO 13-05C which required disclosure and abstention on JCR matters, and he misinterpreted City Attorney Xxxxx Xxxxxx’ general advice concerning disclosure and abstention offered on January 24, 2013. However, Xxxxxxxx was aware at the time of his votes that his relationship with Xxxxx was the subject of another third-party request for opinion questioning his disclosure and abstention obligations, and rather than heeding Xxxxxx’ specific advice to Derbidge regarding abstention on Xxxxx/JCR matters, Xxxxxxxx applied his incorrect interpretation of Xxxxxx’ general advice and made an insufficient disclosure of his conflict and voted on the JCR matters. x. Xxxxxxxx Xxxxxx has a potential significant pecuniary interest in the pool. In re Xxxxx, Comm’n Opinion 01-15 (2002) and In re Xxxxxx, Comm’n Opinion No. 13-43C (2014). 3 Stipulated Facts do not constitute part of the “Investigative File” as that term is defined by NRS 281A.440(17), as amended by Assembly Bill 60, 78th Session of the Nevada State Legislature, effective May 27, 2015. All statutory and common law protections afforded to the Investigative File shall remain and are not affected by this Stipulated Agreement. x. Xxxxxx now fully understands that he should have disclosed sufficient information regarding his Sagebrush 66 daughter’s relationship with Desert Mountain Realty, his relationship with Midway Gold and JDD business relationships with Xxxxx, a person to whom he had a commitment in a private capacity as a substantial and continuing business associate, his property surrounding the Aquatics Center to inform the public of the nature and extent of his relationship relationships and Xxxxx’ interests in the Water Projectpecuniary interests. The disclosure disclosures should have also included information regarding occurred at every County Commission meeting that involved any of the potential effect of Derbidge’s action or abstention on the agenda items and the effect it may have had on Xxxxx’ interestsentities. See In re Woodbury, Comm’n Opinion No. 99- 99-56, (1999) ), and In re Derbidge, Comm’n Opinion No. 13-05C (2013). x. Xxxxxxxx also understands that he g. Disclosures required by the Ethics Law must abstain from voting upon matters occur “at the time the matter is considered.” (NRS 281A.420(1)) The Ethics Law does not recognize a continuing disclosure or a disclosure by reference. The purpose of disclosure is to provide sufficient information regarding Xxxxx and/or JCR the conflict of interest to inform the public of the nature and extent of the conflict and the potential effect of the action or abstention on the public officer’s private interests. Silence based upon a prior disclosure at a prior meeting fails to inform the public of the nature and extent of the conflict at the meeting where no actual disclosure occurred. (See In re Xxxx, Comm’n Opinion No. 11-63C (2011) (holding that incorporation by reference of her prior disclosure even though based upon the advice of counsel, did not satisfy the disclosure requirements of NRS 281A.420(1)) h. A public officer’s disclosure is important even where the conflict is remote in some aspects. In In re Xxxxx, Comm’n Opinion No. 09-47C (2009), the Commission held: In keeping with the public trust, a public officer’s disclosure is paramount to transparency and openness in government. The public policy favoring disclosure promotes accountability and scrutiny of the conduct of government officials…Such disclosures dispel any question concerning conflicts of interest and may very well xxxx off complaints against the public officer based on failure to disclose. i. Although the nexuses between Xxxxxx and Desert Mountain Realty and the WPC Aquatics Center were attenuated because the issues before the County Commission had peripheral impact on Xxxxxx, the disclosure provisions of the Ethics Law still apply. It is the avoidance of conflict and appearance of impropriety, even though actual impropriety is lacking, that the Ethics Law requires. (See In re Xxxxxxx, Comm’n Opinion No. 11-78A)). Therefore, Xxxxxx should have disclosed the perceived conflict regarding Desert Mountain Realty, WPC Aquatics Center and Midway Gold. j. Abstention is only required when a reasonable person’s independence of judgment must “…be materially affected by…” the public officer’s significant pecuniary interest or commitment in a private capacity. NRS 281A.420 and Woodbury. k. The evidence does not indicate that a reasonable person in Xxxxxx’x situation would be materially affected by his pecuniary interest or commitment in a private capacity to Xxxxx’ interestsas any interests are remote regarding the sale of the Xxx Times Building or the pool project. x. Xxxxxxxx’x actions during Xxxxxx’x daughter was not going to directly benefit from the May 9sale of the Xxx Times Building; votes regarding price to build the pool, 2013 and June 13, 2013 meetings were willfulpool hours, and architecture payments would not directly impact Xxxxxx’x property values as the acts land was donated to build a pool, and Xxxxxx’x contract with Midway Gold to sell his well for the Gold Rock Project was not impacted by his vote to not send comments to BLM regarding the Pan Project. (See In re Xxxxx, Comm’n Opinion 01-15 (2002)) m. However, Xxxxxx had a contract with Midway Gold to sell his well for the Gold Rock Project and that created a continuing business relationship that required abstention. (See In re Derbidge, Comm’n Opinion No. 13-05C (2013)) x. Xxxxxx’x actions constitute a single course of conduct resulting in a single wilful violation of the Ethics in Government Law, implicating NRS 281A.020, 281A.020(1) and NRS 281A.420(1) and (3). i. Pursuant o. Based upon the consideration and application of the statutory criteria set forth in NRS 281A.475, the Commission concludes that Xxxxxx’x violation in this case should be deemed “willful” pursuant to NRS 281A.170. The Commission took into consideration the following mitigating factors: 1) While there are inconsistencies in Xxxxxx’x disclosures, the gravity of the violation in each instance is not substantial, and Xxxxxx did disclose when he was prompted to disclose. Furthermore, there is no evidence that Xxxxxx’x property in proximity to the Aquatics Center will be impacted to a greater extent, if at all, than other property in the vicinity by the building of a community pool next to White Pine High School. Additionally, Xxxxxx’x mining comments and votes at issue were not for specific projects but rather supported mining in White Pine County in general. 2) Xxxxxx has not previously been the subject of any violation of the Ethics Law. This is Xxxxxx’x first violation. He did not run for re-election and does not foresee running for public office in the future. 3) Xxxxxx has been diligent to cooperate with and participate in the Commission’s investigation and analysis, as well as the resolution process. 4) Xxxxxx has not received any personal financial gain as the result of his conduct in this matter. p. Despite these mitigating factors and although Xxxxxx did not intend to violate the Ethics Law, Xxxxxx’x violation of NRS 281A was willful because he acted intentionally and knowingly, as those terms are defined in NRS 281A.105 and 281A.115, respectively. q. For an act to be intentional, NRS 281A.105 requires that Xxxxxx acted voluntarily or deliberately. The definition further states that proof of bad faith, ill will, evil or malice is not required. Xxxxxx’x conduct was not accidental or inadvertent. Nevertheless, Xxxxxx did not act in bad faith or with malicious intent to benefit his private interests. r. NRS 281A.115 defines “knowingly” as “import[ing] a knowledge that the facts exist which constitute the act or omission.” NRS 281A does not require that Xxxxxx had actual knowledge that his conduct violated NRS 281A, but it does impose constructive knowledge on a public officer when other facts are present that should put an ordinarily prudent person upon inquiry. See In re Xxxxx, Comm’n Opinion 10-48C (2010). s. For the willful violation with mitigating factors, Xxxxxx will pay a nominal civil penalty of $500.00, pursuant to NRS 281A.480, Derbidge will pay a total civil penalty of $2,000 on or before 90 not later than 120 days after his receipt of the fully executed stipulated agreement Stipulated Agreement in this matter. Derbidge Xxxxxx may pay the penalty in one lump sum payment or in monthly installment payments as negotiated with the Commission’s Executive Director. j. t. This agreement Stipulated Agreement depends on and applies only to the specific facts, circumstances and law related to this RFO now before the Commission. Any facts or circumstances that may come to light after its entry that are in addition to or differ from those contained herein may create a different resolution of this matter. k. u. This agreement applies is intended to apply to and resolve only to these matters this specific proceeding before the Commission and is not intended to be applicable to or create any admission of liability for any other proceeding, including administrative, civil, or criminal regarding DerbidgeXxxxxx.

TERMS / CONCLUSIONS OF LAW. Based on the foregoing, Derbidge Xxxxxxx and the Commission agree as follows: a. Each of the findings of fact enumerated in section 4 is deemed to be true and correct. x. Xxxxxxxx Xxxxxxx holds a public office which constitutes a public trust to be held for the sole benefit of the people of the State of Nevada (in particular, the people of the City of XxxLander County). x. Xxxxxxxx Xxxxxxx has a commitment in a private capacity to the interests of XxxxxXxxxx Xxxxxxx, a person with whom he shares substantial and continuing business relationships, as because Xxxxx and Xxxxxxxx are shareholders, officers and directors in Sagebrush 66 and JDDXxxxxxx is his son. See NRS 281A.065(5281A.065(3). x. Xxxxxxxx Xxxxxxx failed to avoid conflicts of interest between his private relationships/interests and public duties and violated the provisions of NRS 281A.020 and 281A.420(1281A.020, NRS 281A.400(2) and (35), and NRS 281A.420(3) of by advocating for his son’s interests in the Ethics in Government Law by failing to fully disclose the full nature and extent of his conflicts Golf Course contract, and failing to abstain from voting during the May 9August 22, 2013 and June 13October 10, 2013 City Council Lander County Commission meetings regarding and the City’s Water Project contract with JCR which affected Xxxxx’ interests, albeit in business ventures unrelated to the Sagebrush 66 or JDDOctober 2013 agenda-setting committee meeting. e. At the time of his actions on May 9, 2013 in August and June 13, October of 2013, Xxxxxxxx had not yet finalized the terms of the stipulated agreement in RFO 13-05C which required disclosure Xxxxxxx sought and abstention on JCR mattersrelied upon District Attorney Xxxxxxx’x legal advice regarding disclosure, participation and he misinterpreted City Attorney Xxxxx Xxxxxx’ general advice concerning disclosure and abstention offered on January 24, 2013abstention. However, Xxxxxxxx as the nature of the conflict was aware at the time of his votes that his relationship with Xxxxx was the subject of another third-party request for opinion questioning his disclosure and abstention obligationsclear, and rather than heeding Xxxxxx’ specific an absolute requirement for abstention exists despite the incorrect legal advice offered, Xxxxxxx violated the Ethics Law. As a public officer, Xxxxxxx has an obligation to understand the requirements of the Ethics Law. The “safe harbor” provision set forth in NRS 281A.480(5) requires reliance upon counsel’s advice to Derbidge regarding abstention on Xxxxx/JCR mattersbe in good faith, Xxxxxxxx applied his incorrect interpretation of Xxxxxx’ general and the advice and made an insufficient disclosure of his conflict and voted on must not be contrary to the JCR mattersEthics Law or prior, published Commission opinions. No “safe harbor” is available here. x. Xxxxxxxx now fully understands that he should have disclosed sufficient information regarding his Sagebrush 66 and JDD business relationships with Xxxxx, a person to whom he had a commitment in a private capacity as a substantial and continuing business associate, to inform the public of the nature and extent of his relationship and Xxxxx’ interests in the Water Project. f. The disclosure should have also included information regarding the potential effect of Derbidge’s Xxxxxxx’x action or abstention on the agenda items and the effect it may have had on Xxxxx’ Xxxxx Xxxxxxx’x interests. See In re Woodbury, Comm’n Opinion No. 99- 56, 99-56 (1999) and In re Derbidge, Comm’n Opinion No. 13-05C (2013). x. Xxxxxxxx also Xxxxxxx now fully understands that he must abstain from voting upon matters should have disclosed sufficient information regarding his relationship with his son, Xxxxx and/or JCR based upon his Xxxxxxx, a person to whom he had a commitment in a private capacity through a blood relationship in the first degree, to Xxxxx’ interests. x. Xxxxxxxx’x actions during inform the May 9, 2013 and June 13, 2013 meetings were willful, and the acts constitute a single course of conduct resulting in a single wilful violation public of the Ethics nature and extent of his relationship and Xxxxx Xxxxxxx’x interests in Government Law, implicating NRS 281A.020, NRS 281A.420(1) and (3). i. Pursuant to NRS 281A.480, Derbidge will pay a total civil penalty of $2,000 on or before 90 days after his receipt of the fully executed stipulated agreement in this matter. Derbidge may pay the penalty in one lump sum payment or in monthly installment payments as negotiated with the Commission’s Executive Director. j. This agreement depends on and applies only to the specific facts, circumstances and law related to this RFO now Golf Course matter before the Lander County Commission. Any facts or circumstances that may come to light after its entry that are in addition to or differ from those contained herein may create a different resolution of this matter. k. This agreement applies only to these matters before the Commission and is not intended to be applicable to or create any admission of liability for any other proceeding, including administrative, civil, or criminal regarding Derbidge.

TERMS / CONCLUSIONS OF LAW. Based on the foregoing, Derbidge Xxxxxx and the Commission agree as follows: a. Each of the findings of fact enumerated in section 4 of this Stipulated Agreement is deemed to be true and correct. x. Xxxxxxxx Xxxxxx holds a public office which constitutes a public trust to be held for the sole benefit of the people of the State of Nevada (in particular, the people of the City of XxxMcDermitt). x. Xxxxxxxx has c. By statute, public officers have a commitment in a private capacity to the interests of Xxxxx, a person with whom he shares substantial and continuing business relationships, as Xxxxx and Xxxxxxxx are shareholders, officers and directors in Sagebrush 66 and JDD. See NRS 281A.065(5) x. Xxxxxxxx failed duty to avoid conflicts of interest. See NRS 281A.020. As a public officer, the conflicts of interest between his private relationships/interests and public duties and violated the provisions of NRS 281A.020 and 281A.420(1) and (3) of the Ethics in Government Law by failing apply to fully disclose Xxxxxx’x conduct. Specifically, Xxxxxx must commit to avoid actual and perceived conflicts of interest, including not entering into contracts with governmental entities (NRS 281A.430), and publicly disclosing sufficient information concerning any private relationships and pecuniary interests which would reasonably affect his decision on matters before the full nature and extent of his conflicts and failing Fire District Board (NRS 281A.420(1)). As a public officer, Xxxxxx is also required to abstain from voting during or otherwise acting on matters in which such relationships would clearly and materially affect the May 9, 2013 and June 13, 2013 City Council meetings regarding the City’s Water Project independence of judgment of a reasonable person in his position (NRS 281A.420(3)). d. By entering into a contract with JCR which affected Xxxxx’ interestsHGH, albeit a governmental entity, to lease his property, Xxxxxx violated the prohibitions against government contracting set forth in business ventures unrelated NRS 281A.430 and Xxxxxx now understands his responsibility as a public officer to avoid such governmental contracts unless they comply with the Sagebrush 66 or JDDstatutory exceptions. e. At During the time of his actions on May 9October 4, 2013 and June 13McDermitt Fire District Board meeting, 2013Xxxxxx made a motion that the McDermitt Fire District Board not sign the Agreement for Engineering & Construction Design Services with Iridium Consulting, Xxxxxxxx had LLC (“Iridium Agreement”) regarding the scope of work as stated in the CDBG application for the Multiplex. (October 4, 2013 agenda) Xxxxxx made the motion based upon the advice of Humboldt District Attorney Xxxxxxx Xxxxxxxxx, Esq. XX Xxxxxxxxx advised Xxxxxx not yet finalized to sign the terms Iridium Agreement because the costs of the stipulated agreement scope of work were not fully delineated in RFO 13-05C which required disclosure and abstention on JCR matters, and he misinterpreted City Attorney Xxxxx Xxxxxx’ general advice concerning disclosure and abstention offered on January 24, 2013the Iridium Agreement. However, Xxxxxxxx was aware at Xxxxxx failed to discuss with DA Macdonald that a delay in the time of Multiplex would benefit his votes that significant pecuniary interest by extending his relationship with Xxxxx was rental agreement to house the subject of another third-party request for opinion questioning HGH EMS staff. Xxxxxx did not disclose his disclosure interests before making the motion and abstention obligations, and rather than heeding Xxxxxx’ specific advice to Derbidge regarding abstention on Xxxxx/JCR matters, Xxxxxxxx applied his incorrect interpretation of Xxxxxx’ general advice and made an insufficient disclosure of his conflict and voted voting on the JCR mattersmatter. x. Xxxxxxxx now fully understands that he should have disclosed sufficient information regarding f. At the October 10, 2013 McDermitt Fire District Board meeting, Xxxxxx did not disclose his Sagebrush 66 and JDD business relationships with Xxxxx, a person to whom he had a commitment in a private capacity as a substantial and continuing business associate, to inform the public of the nature and extent of his relationship and Xxxxx’ interests in the Water Projectlease agreement with HGH before participating in the Board’s discussion regarding a reduction in the scope of the Multiplex project, including the potential elimination of the HGH personnel quarters. The disclosure should have also included information regarding matter was tabled until the potential effect next meeting to consider a revised proposal from Iridium Consulting. g. To promote integrity in public service, the Ethics Law is concerned with situations involving public officers that create the appearance of Derbidge’s action or abstention on the agenda items impropriety as well as actual impropriety and the effect it may have had on Xxxxx’ interestsconflicts of interest. (See In re WoodburyXxxxxxx, Comm’n Opinion No. 99- 56, 12-66A (1999) and 2012)). h. Disclosure is important even in cases where the conflict is remote in some aspects. In re DerbidgeXxxxx, Comm’n Opinion No. 1309-05C 47C (2013). x. Xxxxxxxx also understands that he must abstain from voting upon matters regarding Xxxxx and/or JCR based upon his commitment in a private capacity to Xxxxx’ interests. x. Xxxxxxxx’x actions during the May 9, 2013 and June 13, 2013 meetings were willful, and the acts constitute a single course of conduct resulting in a single wilful violation of the Ethics in Government Law, implicating NRS 281A.020, NRS 281A.420(1) and (3). i. Pursuant to NRS 281A.480, Derbidge will pay a total civil penalty of $2,000 on or before 90 days after his receipt of the fully executed stipulated agreement in this matter. Derbidge may pay the penalty in one lump sum payment or in monthly installment payments as negotiated with the Commission’s Executive Director. j. This agreement depends on and applies only to the specific facts, circumstances and law related to this RFO now before the Commission. Any facts or circumstances that may come to light after its entry that are in addition to or differ from those contained herein may create a different resolution of this matter. k. This agreement applies only to these matters before the Commission and is not intended to be applicable to or create any admission of liability for any other proceeding, including administrative, civil, or criminal regarding Derbidge.2009):

TERMS / CONCLUSIONS OF LAW. Based on the foregoing, Derbidge Xxxxxx and the Commission agree as follows: a. Each of the findings of fact enumerated in section 4 of this Stipulated Agreement is deemed to be true and correct. x. Xxxxxxxx Xxxxxx holds public office which constitutes a public trust to be held for the sole benefit of the people of the State of Nevada (in particular, the people of the City of XxxBoulder City). x. Xxxxxxxx has Xxxxxx had a commitment in a private capacity to the interests of XxxxxXxXxxxxx, a person with whom he shares substantial and continuing business relationships, as Xxxxx and Xxxxxxxx are shareholders, officers and directors in Sagebrush 66 and JDDhis employer at the time. See NRS 281A.065(5281A.065(4). x. Xxxxxxxx failed to avoid conflicts of interest between his private relationships/interests and public duties and violated d. At the provisions of NRS 281A.020 and 281A.420(1) and (3) of the Ethics in Government Law by failing to fully disclose the full nature and extent of his conflicts and failing to abstain from voting during the May 9, 2013 and June December 13, 2013 2011 City Council meetings meeting,4 Xxxxxx voted with the entire City Council to approve Bill No. 1684 regarding the City’s Water Project contract KOMIPO Lease Agreement. However, Xxxxxx did not restate or reaffirm his prior disclosure regarding his employment with JCR which affected Xxxxx’ interests, albeit in business ventures unrelated to the Sagebrush 66 or JDDXxXxxxxx. e. At the time of his actions on May 9March 13, 2013 2012 and June 1326, 20132012 City Council meetings, Xxxxxxxx had not yet finalized Xxxxxx disclosed the terms of the stipulated agreement changed circumstances regarding his employer’s (XxXxxxxx) interests and proposed qualifications in RFO 13-05C which required disclosure KOMIPO’s Lease Agreement, but participated and abstention voted on JCR matters, and he misinterpreted City Attorney Xxxxx Xxxxxx’ general advice concerning disclosure and abstention offered on January 24, 2013. However, Xxxxxxxx was aware at agenda items affecting XXXXXX’s contract. f. At the time of his votes actions, Xxxxxx relied in good faith upon the legal advice of the Boulder City Attorney, Xxxxx Xxxxx, that his relationship with Xxxxx conduct was the subject of another third-party request for opinion questioning his disclosure and abstention obligations, and rather than heeding Xxxxxx’ specific advice to Derbidge regarding abstention on Xxxxx/JCR matters, Xxxxxxxx applied his incorrect interpretation of Xxxxxx’ general advice and made an insufficient disclosure of his conflict and voted on the JCR matterspermissible. x. Xxxxxxxx Xxxxxx now fully understands that he should have disclosed sufficient information regarding XXXXXX’s publically identified potential business relationship with XxXxxxxx, his Sagebrush 66 and JDD business relationships with Xxxxxemployer, a person an entity to whom which he had a commitment in a private capacity as a substantial and continuing business associatecapacity, to inform the public of the nature and extent of his relationship relationship. The disclosure should have occurred at every City Council meeting in which XXXXXX’s proposal was considered. Xxxxxx further understands that he should have abstained from participating and Xxxxx’ interests voting during the City Council matters affecting XXXXXX’s proposal after the time in which XxXxxxxx’x circumstances changed by submitting proposed qualifications to KOMIPO. h. Disclosures required by the Water ProjectEthics Law must occur “at the time the matter is considered.” (NRS 281A.420(1)) The Ethics Law does not recognize a continuing disclosure or a disclosure by reference. The purpose of disclosure is to provide sufficient information regarding the conflict of interest to inform the 4The Commission considers only Xx xxx’s activities between December 2, 2011 and June 26, 2012 for the purpose of this Request for Opinion and this Stipulated Agreement and all allegations prior to that time period are dismissed. However the Commission analyzed the prior activity for clarity on the issues. public of the nature and extent of the conflict and the potential effect of the action or abstention on the public officer’s private interests. Silence based upon a prior disclosure at a prior city council meeting fails to inform the public of the nature and extent of the conflict at the meeting where no actual disclosure occurred. (See In re Xxxx, Comm’n Opinion No. 11-63C (2011) (holding that incorporation by reference of her prior disclosure even though based upon the advice of counsel, did not satisfy the disclosure requirements of NRS 281A.420(1)). i. The disclosure should have also included information regarding the potential effect of Derbidge’s Xxxxxx’x action or abstention on the agenda items and the effect it may have had on Xxxxx’ XxXxxxxx’x interests. See In re Woodbury, Comm’n Opinion No. 99- 99-56, (1999) ), and In re Derbidge, Comm’n Opinion No. 13-05C (2013). j. A public officer’s disclosure is important even where the conflict is remote in some aspects. In In re Xxxxx, Comm’n Opinion No. 09-47C (2009), the Commission held: In keeping with the public trust, a public officer’s disclosure is paramount to transparency and openness in government. The public policy favoring disclosure promotes accountability and scrutiny of the conduct of government officials…Such disclosures dispel any question concerning conflicts of interest and may very well xxxx off complaints against the public officer based on failure to disclose. k. To promote integrity in public service, the Commission is concerned with situations involving public officers that create the appearance of impropriety and conflicts of interest, as well as actual impropriety and conflicts. (See In re Xxxxxxx, Comm’n Opinion No. 12-66A (2012)). l. Although the nexus between XxXxxxxx and XXXXXX was attenuated because no contact had occurred between the two companies until after the December 13, 2011 vote when XxXxxxxx submitted its qualification information to KOMIPO, the disclosure provisions of the Ethics Law still apply. It is the avoidance of conflict and appearance of impropriety, even though actual impropriety is lacking, that the Ethics Law requires. (See In re Xxxxxxx, Comm’n Opinion No. 11-78A)). Therefore, Xxxxxx should have disclosed the perceived conflict regarding XXXXXX and XxXxxxxx on December 13, 2011. m. The December 13, 2011 meeting was critical pertaining to disclosure. At this meeting, the City Council awarded XXXXXX the contract regarding the Solar Project. If the City Council had rejected XXXXXX’s proposal, XxXxxxxx’x potential to be a general contractor for KOMIPO on the project would have ceased to exist. While the prior City Council meetings necessitated disclosure based upon Xxxxxx’x commitment in a private capacity to XxXxxxxx, this meeting was critical to the advancement of XxXxxxxx’x interests in the Solar Project through XXXXXX’s proposal. This vote to provide XXXXXX the contract created the turning point for XxXxxxxx’x potential interest in the project, as the Solar Project took its first step forward. Prior to KOMIPO being awarded the contract for the Solar Project, XXXXXX had no need to enter into discussions with XxXxxxxx because being awarded the Solar Project was too speculative. x. Xxxxxxxx also understands that he must Xxxxxx should have abstained from participating and voting on the KOMIPO matters during the March 13, 2012 and June 26, 2012 meetings based upon the change in circumstances between XXXXXX and XxXxxxxx. Although the Solar Project was in its initial stages and it was not certain whether construction would ever commence, XxXxxxxx had begun discussions with XXXXXX regarding the Solar Project through submission of its bid qualifications. Accordingly, Xxxxxx was required to disclose and abstain from participating and voting upon on the KOMIPO matters because his employer’s interests had been identified and would have been materially affected by his vote. See In re Xxxx, Comm’n Opinion No. 09-10C (2010) (holding that Xxxx had a duty to disclose and abstain once he was aware of pending or impending negotiations between the entity with which he had a commitment in a private capacity and an entity seeking approval by City Council.) o. Before March 13, 2012, and June 26, 2012, XxXxxxxx had formalized its interest in pursuing its construction agreement with KOMIPO. As a member of the City Council, Xxxxxx’x ability to vote on matters affecting XXXXXX’s Lease Agreement to potentially benefit his employer’s interests created a conflict of interest requiring abstention pursuant to NRS 281A.420(3). See In re Xxxx, Comm’n Opinion No. 09-10C (2010) (holding that when Xxxx voted for a financing resolution regarding Xxxxx and/or JCR based upon a city project, the Commission found that Xxxx’x vote would have been affected by his commitment in a private capacity to Xxxxx’ intereststhe interest of the union members, even though it was not certain when or if the city hall project would be confirmed.) x. Xxxxxxxx’x actions Xxxxxx should have disclosed the perceived conflict regarding XXXXXX and XxXxxxxx during the May 9December 13, 2013 2011 City Council meeting and abstained from participating and voting during the March 13, 2012 and June 1326, 2013 2012 City Council meetings. His failure to disclose and abstain during those meetings were willful, and the acts constitute constitutes a single course of conduct related to the same matter resulting in a single wilful non-willful violation of the Ethics in Government Law, implicating NRS 281A.020281A.420(1) and (3) as set forth below. q. Although Xxxxxx’x conduct in failing to disclose and abstain would otherwise be deemed intentional and knowing and, therefore, “willful,” NRS 281A.170 obligates the Commission to consider whether the mitigating factors set forth in NRS 281A.475 and NRS 281A.480(5)(a) and (b) support a determination that the violation was not willful and whether a civil penalty should be imposed pursuant to NRS 281A.480. r. Based upon the consideration and application of the statutory criteria set forth in NRS 281A.475 and NRS 281A.480(5)(a) and (b), the Commission concludes that Xxxxxx’x violation in this case should not be deemed a “willful violation” pursuant to NRS 281A.170 and the imposition of a civil penalty pursuant to NRS 281A.480 is not appropriate for reasons that follow: 1) As stated previously, the failures to disclose and abstain are, in this instance, of such a nature, circumstance, extent or gravity as to be deemed part of a well-intentioned, good faith effort by Xxxxxx to fulfill his obligation and duty to further his service to the citizens of Boulder City as their elected representative on the City Council. 2) Xxxxxx has not previously been the subject of any violation of the Ethics Law. 3) Xxxxxx received no personal financial gain as a result of his conduct and, given the state of negotiations, his employer did not receive any financial gain. 4) Xxxxxx relied in good faith upon the advice of the Boulder City Attorney that his disclosure and abstention was not necessary. NRS 281A.420(1) and (3) attempt to ensure that the public is best served without any improper interference or influence during a City Council meeting. Public officers have an obligation to fully disclose their commitments in a private capacity to the interests of their employers when a matter under consideration by the pubic body would be reasonably affected by that commitment, and to abstain from voting on issues that materially impact the person or entity to whom they have a commitment in a private capacity. See In re Xxxx, Comm’n Opinion No. 09-10C (2010) (holding that Xxxx had a duty to disclose and abstain when the entity to which he had a commitment in a private capacity entered into negotiations or impending negotiations with an entity before the City Council). The Commission is satisfied that Xxxxxx did not intend to violate NRS 281A.420(1) and (3), but rather relied upon Counsel’s advice pertaining to disclosure and abstention issues. i. Pursuant 5) Xxxxxx has been diligent to NRS 281A.480, Derbidge will pay a total civil penalty of $2,000 on or before 90 days after his receipt of the fully executed stipulated agreement cooperate with and to participate in this matter. Derbidge may pay the penalty in one lump sum payment or in monthly installment payments as negotiated with the Commission’s Executive Directorinvestigation and analysis, as well as the resolution process. j. s. This agreement Stipulated Agreement depends on and applies only to the specific facts, circumstances and law related to this RFO and Amended Notice now before the Commission. Any facts or circumstances that may come to light after its entry that are in addition to or differ from those contained herein may create a different resolution of this matter. k. t. This agreement applies only to these matters before the Commission and Stipulated Agreement is not intended to be applicable apply to or create any admission of liability for any other proceeding, including administrative, civil, or criminal regarding Derbidgeand resolve all matters relating to the KOMIPO and XxXxxxxx matters referenced in this RFO and Amended Notice.