Former regent, political operatives among 19 candidates seeking to fill state Senate vacancy

The Legislature on Sunday, Aug. 2, 2020 during the third day of the 32nd Special Session in Carson City.

A total of 19 individuals, including a former member of the Nevada System of Higher Education Board of Regents, have applied to fill the state Senate seat vacated by Democrat Yvanna Cancela weeks before the start of the 2021 Legislature.

The applications will go before the Clark County Commission during its Feb. 2 meeting. The board is designated under state law to select a replacement lawmaker of the same political party who resides in the district to carry out the remainder of Cancela’s term.

Cancela, elected to a four-year term in 2018, resigned in early January to take a position in the Biden administration. She was appointed by the commission to fill the vacated state Senate seat of Ruben Kihuen, who left the Legislature to run for Congress.

Two applications were not accepted — one was not properly notarized, and another was filed by a registered Republican.

Senate District 10 covers portions of the Las Vegas Strip and is considered safely Democratic, given the disparity in voter registration between the two major political parties.

Among the candidates:

  • Melissa Clary, who ran unsuccessfully in 2019 for the Las Vegas City Council seat now held by Olivia Diaz, has worked at the U.S. Department of Veterans Affairs and at the Las Vegas Planning Department
  • Greg Esposito, a lobbyist who has worked as a campaign manager and supported a range of ballot initiative campaigns
  • Keenan Korth, who has worked for the Clark County Education Association teacher’s union, as well as the campaigns of Bernie Sanders and progressive congressional candidate Amy Vilela
  • Lisa Levine, a former staffer for Rep. Dina Titus who was appointed by the governor and served as a regent for the Nevada System of Higher Education.
  • Hergit Llenas, who has worked as a national director of Latino outreach for the American Federation for Children, a school choice group
  • Heather Harmon, deputy director of the Nevada Museum of Art
  • Adriana Martinez, a former chairwoman of the Nevada State Democratic Party

Other applicants for the seat include:

  • Elisabeth Apcar, a handbag designer.
  • Sergio Bustos, a UNLV student
  • John Delibos, who has been president of the Stonewall Democratic Club of Southern Nevada
  • Fabian Donate, a graduate intern at LifeBridge Health
  • David Lopez, who has been a Las Vegas parks commissioner
  • Stephanie Molina, a researcher at UNLV
  • Jonathan Norman, an attorney at the Legal Aid Center of Southern Nevada
  • John Ruse, a real estate investor
  • Dorian Stonebarger, a policy adviser for Las Vegas City Councilman Brian Knudsen
  • Kai Tao, who has worked as a hedge fund manager
  • Erik Van Houten, who teaches AP government at Equipo Academy
  • Marc Wiley, a retired police officer

Updated on Jan. 20, 2021 at 8:42 a.m. to include that an additional applicant had submitted paperwork to the Clark County election officials.

In 2011, the Legislature created a mining oversight board — then it stopped meeting

Trucks at mine site.

When then-Gov. Brian Sandoval appointed Melissa Clary to the Mining Oversight and Accountability Commission in January 2018, her expectation was that the board would soon meet to help regulate an industry so intertwined with Nevada’s politics that it is recognized on the state seal. 

But a year after her appointment, there was a problem: It never met.

“My term expired without ever having a quorum to meet,” said Clary, whose term ended in June.

Today, the entire seven-member commission is vacant. A spokesman for Gov. Steve Sisolak, a Democrat, said the governor is re-starting the appointment process, a responsibility shared with the Legislature. Legislative leadership is responsible for recommending five of the appointees.

Since the commission’s last recorded meeting in December 2015, lawmakers and state officials have wrestled over the future of the board, charged in part with reviewing mining regulations. 

In 2017, the Sandoval administration supported legislation to dissolve the commission, arguing that it was duplicative of other state regulatory boards. Mining watchdog groups pushed back on those claims. They said the board provided a necessary public forum to discuss mining issues. The Legislature kept the board around, but in practice, it operated as though it had been retired. 

Former appointees to the commission have mixed opinions about whether it should exist and in what form, raising questions about its future. Even early supporters of the commission question how effective it will be if it does not receive full support from the governor’s office and legislative leaders. 

Sheila Leslie, a former Democratic lawmaker who helped create the board and a long-time critic of how mining is taxed, said in an email that the “commission was a good idea and could work.” 

“But if the governor and the Legislature won’t buy in, it’ll die by willful neglect,” she added.

‘Function like the Gaming Commission’

With bipartisan support, the Legislature created the mining oversight commission in 2011. It came amid backlash after the Department of Taxation had failed to conduct field audits at mines for years.

“It was something that was definitely needed at the time, especially coming from the realization that the mining tax was not being audited on a regular basis,” said Dennis Neilander, an original member of the mining commission and a former chairman of the Gaming Control Board. 

The commission was housed in the Department of Taxation, but its statutory reach was much broader than tax policy. According to state law, it was charged with overseeing the state agencies that regulate the taxation, operation, safety and environmental impacts of mining. 

“When we developed the idea in 2011, we thought it could function like the Gaming Commission and serve as the reviewing body for regulations,” Leslie wrote in an email earlier this week. 

Three state agencies — the Division of Industrial Relations, the Department of Taxation and the Division of Environmental Protection — were required to submit audits and reports to the board. 

The commission also had the power to request audits, call witnesses and subpoena documents. And it was tasked with reviewing regulations approved by other boards that oversee mining: the Nevada Tax Commission, the Commission on Mineral Resources and the State Environmental Commission. 

“The value of the [commission was that] it did bring everything together in one place and got new people engaged who aren't normally engaged in the day-to-day mining industry,” said Kyle Davis, a former member of the commission and a lobbyist for the Nevada Conservation League.

Davis said that the commission's structure brought different voices into the process. The State Environmental Commission, which reviews mining regulations, largely includes state agency leaders, and the Commission on Mineral Resources draws six of seven members from the industry. 

“It was also good to get a different perspective,” he said.

This, Leslie said, was the original goal.

She said “it would have brought sunshine to the industry’s actions.”

‘A public comment board'

But some appointees said the board devolved into a redundant regulatory check. In practice, they said that it exercised little authority and lacked the clout that gaming regulators wield. 

Former state Sen. Greg Brower, a Republican who served on the commission until he left to work at the Justice Department, said he reached the conclusion that its work was duplicative.

He noted that other boards already reviewed mining regulations with opportunities for the public to comment. The State Environmental Commission, for instance, reviews regulations and holds hearings on environmental permits. The Nevada Tax Commission can adopt regulations. And the Legislative Counsel Bureau, he added, could conduct audits. 

Brower and other appointees said they started to see the mining oversight commission as a pass-through board. 

“You put all of that together and I recall concluding that maybe it made sense at the time,” he said. “But it wasn't really adding much that wasn’t in place in terms of auditing and review.”

Part of the issue is the commission completed the bulk of its work in the first two years. In those years, it worked to fix the Department of Taxation audit issue and review existing mining regulations.

“After about the third year, it became more perfunctory,” Neilander said.

Roger Bremner, a former Democratic legislator and another member of the board, said that the commission lacked the wherewithal to do much more than collect public comments and testimony.

“We were kind of a feel-good board that didn't really have any power,” he said.

Bremner, who chaired the Assembly Ways and Means Committee in the early 1980s, said that the commission turned into “a public comment board.” They listened to testimony but had little power to change regulations. He recalled hearing testimony from residents of Silver City and Gold Hill about mining activity in Virginia City, but having no power to influence the issue. 

“If they really wanted us to do something, we needed more authority than we had,” he said.

By 2016, the commission no longer had a quorum, and it stopped meeting.

“We just kind of disbanded,” Bremner said. “I don't know how else to say it.”

Four years, two governors, no meetings

When the Legislature met in 2017, the Sandoval administration backed a bill to dissolve the board. In the years between, the administration and legislative leaders had not filled the commission with new appointments, which would have made it possible for the board to resume meetings.

"As we looked through it, we believed the oversight of our mining industry was very strong and there were a lot of checks and balances,” said Pam Robinson, a policy analyst for Sandoval.

Robinson noted that it was part of a legislative package to thin state government of duplicative boards. The legislation to dissolve the mining board looked to axe the State Dairy Commission, the Alfalfa Seed Advisory Board and the Garlic and Onion Growers’ Advisory Board. 

But Leslie believes it was also reflective of changing politics. There were different priorities, and the two champions of the board — herself and then-Senate Majority Leader Steven Horsford — were gone. Leslie had lost an election to Brower in 2012. Horsford was elected to Congress.

Leslie suspects industry pressure dissuaded governors and legislators from appointing new members, in turn creating the pretext for arguing the commission was ineffective. She said Sandoval never bought into the board and “neither did much of legislative leadership or even the rank and file who really didn’t want their campaign contributions from mining to go away.”

According to minutes from 2017, state officials pointed to the lack of a quorum as one justification for why the board should be dissolved. They said the commission had fulfilled a primary purpose — to review mining regulations in light of the tax issues that came to light in 2011. The public, they argued, had other opportunities to comment on mining regulations.

In the end, the Legislature kept the commission alive — at least on paper. 

A commission pending appointments 

Why the Sandoval administration never appointed a full commission after 2015 remains an open question.

But “it was not for lack of trying,” Robinson argued.

Robinson noted the difficulty of finding qualified candidates to serve on the state’s plethora of boards and commissions. In this case, the statute delegated some of the responsibility for new appointments to the Legislature, making the process even more stringent and time-consuming. 

According to the statute, the governor is responsible for two appointments. The governor selects the remaining appointees based on recommendations from the Assembly Speaker, the Senate Majority Leader and minority leadership. The governor consults with legislative leaders on his selections. No more than two appointees can have “a direct or indirect financial interest in the mining industry or are related by blood or marriage to a person who has such an interest.”

In 2018, nearly three years after the board’s last meeting, Sandoval finally appointed a new member: Clary.

Clary said she expected to start attending meetings. She attended an ethics training to prepare. Once Sandoval left office, she started asking the Sisolak administration if it would appoint new members. But Clary said she did not get much follow-up.

Then her term expired in June. 

Now the entire board is vacant, and Sisolak has yet to appoint any new members.

That inaction has frustrated Clary, who has watched as the new administration has touted the scores of appointments it has made to state boards, most recently in a press release Thursday.

“It's not like they weren’t appointing people and considering applications,” Clary said.

Sisolak’s communications director, Ryan McInerney, said in an email exchange on Thursday that “the governor has every intention of appointing members to the commission after he confers with members of Legislative leadership, as outlined in statute. Once the commission reaches quorum, the expectation is that they will begin conducting their work.”

Senate Majority Leader Nicole Cannizzaro said her office has not received any applications yet. But Cannizzaro added that she is “currently working with stakeholders to identify qualified applicants for recommendation in coordination with other legislative leaders and the governor’s office.”

Reviving the commission?

Even if the board is reconstituted, questions remain about how effective it would be.

Glenn Miller, a UNR emeritus professor who studied chemistry and a board member of Great Basin Resource Watch, testified in favor of the mining commission when it was created in 2011. 

When asked if he thought the commission was effective, he responded bluntly: “No.”

“I think if it's reconstituted, it will have to be done in a way where there is some mission,” Miller said. “It has to be staffed. It has to have people concerned about the impacts of mining.”

Miller said the industry had “come a long way” but there remain topics that the commission could study, including pit lake regulations, safety issues and the long-term management of acid heaps.

Assemblywoman Sarah Peters, a Reno Democrat who works as an environmental consultant, said the commission is necessary because it is one of the few places where a state board can collect public opinion on a range of mining topics, from operational issues to environmental issues. Since mining projects are sited on federal land, general public comment is often collected by federal regulators.

Peters believes the commission can serve, in part, as a state clearinghouse. 

Peters said she is open to tweaking the commission’s current directive to adjust for a mining industry that has changed in the last decade, often placing a greater emphasis on social responsibility. 

“We can change that [directive],” she said. “We can add from that or subtract from that.”

“But,” she added, “I don't think dissolving the commission is the right action in this case.”

Kihuen's large federal war chest likely not transferable to City Council race

Former Congressman Ruben Kihuen still has more than $300,000 in his federal campaign account, but it's questionable whether he will be able to use that money in his bid for Las Vegas City Council.

Kihuen has stopped fundraising since announcing in 2017 that he would not run for re-election to his U.S. House seat, amid multiple accusations of unwanted sexual conduct that were largely substantiated by a House Ethics Committee report finding the congressman “made persistent and unwanted advances toward women who were required to work with him.”

But according to his most recent filing with the Federal Election Commission, Kihuen still has more than $318,000 in available cash in his federal campaign account — a modest sum for a U.S. House candidate but a huge war chest for a municipal candidate in a low-turnout, off-year election. Kihuen announced his bid for the Ward 3 City Council seat earlier this month and officially filed to run for the office on Wednesday.

State officials and legal experts warn that Kihuen will be hard-pressed to directly tap into those federal funds for a state level campaign without running afoul of state law.

There’s no overarching federal rule on whether candidates seeking state or local office can transfer funds from their federal campaign accounts to their new race. The rules are typically left up to states. Depending on state law, candidates in the past have either been able to transfer the full balance of their accounts or have sought roundabout ways to move the money over, either refunding contributions with an expectation that equivalent funds would be donated to their new campaign or given to a party or PAC to indirectly support their candidacy.

In an email sent last June when rumors of Kihuen’s city council bid first arose, Nevada Deputy Secretary of State for Elections Wayne Thorley said that although Nevada state law doesn’t directly allow or prohibit federal-to-state campaign transfers, the office would view any transfer of funds from a federal PAC as regular contributions subject to normal contribution limits.

“Nevada law does not expressly allow or prohibit the transfer of (federal) funds to state campaign accounts,” he said in the email. “Given this, any (federal) funds transferred to a state campaign account would be treated like a regular contribution to a state campaign account and would be subject to the normal contribution limits: $5,000 for the primary election and $5,000 for the general election ($10,000 total for the election cycle).”

Thorley declined to answer emailed follow-up questions this week.

Bradley Schrager, an election law attorney with Wolf, Rfikin, Shapiro, Schulman & Rabkin, said in an email that state law clearly prohibits a mass transfer of federal funds to a state or local level candidate.  Schrager is also representing former Assemblywoman Olivia Diaz in her bid for the city council seat.

“Federal campaign funds belong not to the candidate but to his or her committee — in other words, an entity,” he said in an email. “Entities can contribute to state races in Nevada, but are limited to $10,000. You can do a lot of things with $300,000 in leftover federal campaign money, but giving it all to a Nevada state race is not among them.”

Even if Kihuen transfers the funds into his state account, he’ll likely face additional restrictions on how to use the funds given differences between federal and state law. For one, candidates for any non-federal office in Nevada are restricted to raising $10,000 from a single source in any campaign cycle, which for Las Vegas City Council candidates started on May 7, 2015.

Because the technical fundraising period covered two congressional campaign cycles, a number of Kihuen’s donors to his federal campaign gave more than the maximum allowed limit of $10,000 that would be in place if the funds were being used for a statewide or local campaign. In total, roughly $108,000 of Kihuen’s available cash came from donors who had already contributed at least $10,000.

Kihuen would also likely need to balance spending between primary and general elections — the $10,000 contribution cap consists of $5,000 limits for the primary and general campaigns each. He’d also have to follow a state law requiring the loser of a primary election to return campaign donations in excess of $5,000 to the contributors within two months of the election.

Regardless of how Kihuen decides to fund his campaign, voters and members of the public won’t get a chance to look at his campaign finances until after the April 2 primary election.

That’s because of a law passed by the Legislature in 2017 that included changing the state’s campaign finance reporting requirements, effective as of Jan. 1. The final version of the bill changed the reporting deadlines in election years to a quarterly reporting system, with reports now due on the 15th of April, July, October and January of the next year.

That means nearly two weeks will come and go after the municipal primary Election Day before candidates are required to disclose who they raised money from and how they spent campaign dollars. Kihuen’s actions with his federal campaign account also won’t be disclosed until the federal reporting deadline of April 15.

In a twist, the change in reporting requirements — which was part of a larger bill affecting voter registration and requiring candidates to disclose cash on hand and to itemize expenses charged to credit cards — was pushed by former Democratic Assemblywoman and fellow Ward 3 candidate Diaz, who called the changes part of the “Diaz Amendment” during a 2017 committee hearing.

In an interview, Diaz said that the bill was an overall “step in the right direction” but acknowledged the lack of reporting before municipal primary elections was an oversight not raised by anyone until after the bill had been signed into law. Diaz said she believed in accountability and transparency and would consider disclosing her own donors publicly prior to the election.

“Voters do deserve to know where money is coming and who’s funding us, however we are in circumstance there’s no mandate to do so before the primary,” she said. “It’s going to be left up to each candidate with what they want to do with financial information and how honest they want to be about funding.”

Besides Kihuen and Diaz, filed candidates for the Ward 3 seat include Aaron Bautista, Melissa Clary, David Lopez and Shawn Mooneyham. The top two vote-getters will advance to the general election on June 11, but if any candidate receives more than 50 percent of the vote in the primary election, he or she will be automatically placed in the seat.

Updated at 9:28 a.m. to disclose that Bradley Schrager is representing Olivia Diaz's city council campaign.

After House sanctions over sexual misconduct allegations, Kihuen launches Las Vegas council bid

Former Democratic Rep. Ruben Kihuen, who was formally censured by House Ethics officials over credible accusations of sexual misconduct by multiple women, announced on Tuesday that he is running for Las Vegas City Council.

Kihuen confirmed his plans in a Twitter post on Tuesday, two months after the House Ethics Committee released a report determining the freshman Democrat “made persistent and unwanted advances toward women who were required to work with him” in violation of House rules. The former congressman has maintained his innocence though House investigators found his denials unconvincing and formally reprimanded him.

The former congressman who spent a decade in the Nevada Legislature has made little secret of his desire to run for office again, filing initial paperwork in December to create a 527 political organization for a municipal election. Incumbent Ward 3 Councilman Bob Coffin declined to run for re-election in 2018 and has said he does not plan to endorse a successor.

In a video posted on Twitter, Kihuen, clad in a “Vegas Strong” t-shirt, hammers an “Estamos con Ruben Kihuen” sign into the ground.

“It may be raining out here, but the rain’s not going to stop us,” Kihuen says. “I’m Ruben Kihuen, candidate for Las Vegas City Council, and I hope to earn your support.”

A primary election for City Council seats is scheduled for April 2, and unless a candidate takes a majority of the vote, the top two vote-getters will advance to a general election on June 11. Council members serve four-year terms and make about $79,000 a year in base pay, according to Transparent Nevada.

Former Assemblywoman Olivia Diaz, who announced she was running for the seat in December, declined to comment on the allegations and the House Ethics committee report on Kihuen.

“I think every candidate that makes a decision to jump into the race will have to do so based on their values and if they feel they’re the best fit for the district,” Diaz said in a phone interview Tuesday night. “I’ve known my neighbors here in Ward 3 for the last 30 plus years and they’ll be the best judge of character when it comes to decide who they want to represent them on the City Council. I can tell you no one can represent this ward better than me.”

Fellow candidate David Lopez, a former city parks commissioner, said he was "deeply offended" that Kihuen would "thumb his nose at his constituents and overlook the serious nature of the sexual harassment allegations against him that turned out to be true."

"We must not accept this kind of proven behavior on the Las Vegas City Council," he said in an email on Wednesday. "Our city’s taxpayers deserve much better. The public will have the ultimate say. I hope they vote their conscience.”

Other announced candidates for the seat include Melissa Clary and Shawn Mooneyham.

Prior to Kihuen's bid, a political action committee called "No Means No, Ruben PAC" was formed for the stated purpose to "keep Ruben Kihuen from political office in 2019." The PAC, which was registered on Jan. 3, is headed by Maria-Teresa Liebermann, a progressive activist with Battle Born Progress.

In an emailed statement, Nevada State Democratic Party spokeswoman Molly Forgey said the party "takes seriously all allegations of sexual misconduct and continues to hold all of our leaders accountable." Party Chair William McCurday said last year that the party was "disappointed" by the allegation and that there is "no place for this behavior in our party."

Pro-abortion rights group NARAL called on Kihuen to immediately renounce his candidacy.

"Kihuen’s announcement that he is running for City Council after a proven record of sexually harassing multiple women demonstrates his complete lack of regard for the health and safety of the women of Nevada," said NARAL Nevada State Director,Caroline Mello Roberson.  “Nevada voters have proven that we are moving our state forward and we will not tolerate or turn a blind eye to elected officials—or anyone—who chooses to harass, disrespect, and otherwise create a hostile work environment for women."

Witnesses who spoke to the House’s investigative subcommittee testified that Kihuen described a primary opponent as a “slut” in front of his campaign staff, asked a woman whose firm worked for him if she would consider cheating on her husband, suggested to a campaign staffer that the two get a room together at the Aria casino and made “progressively more sexually aggressive” advances to a Nevada lobbyist while he was a state senator.

He acknowledged “immaturity and overconfidence” in a statement released when the House Ethics Committee report came out, but said he “never intended to make anyone feel uncomfortable or disrespected.”

This story was updated at 8 AM on Wednesday with a quote from Olivia Diaz.  Updated again at 12:35 p.m. to include a statement from the Nevada State Democratic Party. Updated at 2:30 p.m. to include a statement from David Lopez and from NARAL.