Minutes
of the meeting of the
State of Nevada Commission on Ethics
Thursday, September 27, 2002
9:00 a.m.
Grant Sawyer State Office Building
555 East Washington Avenue, Room 4401
Las Vegas, Nevada 89101
(Continuance of September 13, 2002 hearing)
These minutes constitute a summary of the above proceedings of the Nevada Commission on Ethics. A verbatim transcript of the proceedings, prepared by a certified court reporter, is available for inspection at the Commission office.
Commission Members Present: Todd Russell, Chairman; William Flangas, P.E.; Jim Kosinski, Esq.; Thomas R. Sheets, Esq.; Ernest E. Adler, Esq.; Lizzie R. Hatcher, Esq.
Commission Members Absent: Rick Hsu, Esq.
Commission Staff Present: Stacy M. Jennings, Executive Director; Nancy Lee Varnum, Commission Counsel; Beverly L. Amundson, Administrative Assistant
Parties Present: Earlene and James Forsythe; Pat Lundvall, Esq. representing Earlene Forsythe; Francis Allen; Frank Cremen, Esq. representing Francis Allen; George Harris and Dan Burdish, Nevada Liberty Caucus
Others Present: Judith and John Dubois; Lisa Lombardi; Blane Rush; Susan Wohlbrandt; Gary Peck, ACLU of Nevada; Gary Thompson, Las Vegas Review Journal; Timothy Pratt, Las Vegas Sun
Chairman Todd Russell called the meeting to order Thursday, September 27, 2002, at 9:10 a.m.
Agenda Item 2 – Request for Opinion 02-16 submitted by James and Earlene Forsythe (candidate for Assembly 37) pursuant to NRS 281.477 alleging that the Nevada Republican Liberty Caucus a.k.a. Nevada Liberty Caucus violated the campaign practices provisions of NRS 294A.345.
In open session, a continuation of the hearing held September 13, 2002, the Commission heard testimony, received evidence, deliberated, and rendered an opinion relating to Request for Opinion No. 02-15 submitted by James and Earlene Forsythe (candidate for Assembly 37) pursuant to NRS 281.477 alleging that Francis Allen (candidate for Assembly 37) violated the campaign practices provisions of NRS 294A.345; and Request for Opinion No. 02-16 submitted by James and Earlene Forsythe (candidate for Assembly 37) pursuant to NRS 281.477 alleging that the Nevada Republican Liberty Caucus a.k.a. Nevada Liberty Caucus violated the campaign practices provisions of NRS 294A.345.
Under the provisions of NAC 281.101, testimony was heard regarding both requests for opinion simultaneously. The opening statements of Pat Lundvall, Esq. from September 13, 2002 were provided to the commissioners and she agreed to proceed with testimony of witnesses. Witnesses testifying in support of Earlene Forsythe’s request for opinion were: Blane Rush, John Dubois, Earlene Forsythe, and James Forsythe. Frank Cremen, Esq. called witnesses Francis Allen, subject of the request for opinion, and Dan Burdish and George Harris of the Nevada Liberty Caucus.
Chairman Russell thanked all parties participating in the testimony and presentations and expressed the Commission’s appreciation for bringing the matter forward for appropriate review and evaluation.
Chairman Russell stated his intent to take these matters separately. The complaint against Francis Allen was handled first and Commissioners were invited to make comments.
Commissioner Adler: “On the Francis Allen complaint, the only sworn testimony we have shows that she did not know about the two what I would consider most offensive brochures, and as to her, her brochure, I think it is a rather mild milk toast comparison brochure. I don’t think it has any – it doesn’t even rise to anything.
I think it did impede the campaign, but I think all comparison pieces are designed to impede the opponent’s campaign. You are certainly not trying to promote your opponent.
But there is nothing in there that gets even close to anything I would consider so untrue that it would be so clear and convincing evidence.”
Commissioner Adler made the motion, and Commissioner Hatcher seconded, that the charge be dismissed.
Chairman Russell asked for discussion on the motion.
Vice Chairman Flangas: “Well, specifically Allen, but the comments I’m about to make will be pertinent to both. I have listened carefully to a lot of arguments and counter arguments, listened to a lot of testimony here today, thoroughly studied the documentation and the arguments, and then there is a number of significant facts that bubbled out. There are some significant peripheral dimensions involved in this situation here today. And they haven’t been addressed, and I won’t attempt to do that now.
But this has been a significant case before the Commission. It’s obviously aroused a lot of media attention and others. And I’m going to list the concerns I have in a broad sense and keep it crisp and like in me-Tarzan-you-Jane language.
First of all, there is nothing overly complicated about ethics. Now ethics is a matter of personal conscience with a duty and obligation to exercise moral self-discipline in the spirit of public service as a public trust. And the law was written that way.
You can be marginally legal and overwhelmingly unethical. Seldom if ever is it possible to write a perfect law to cover all the possible contingencies, and therefore, intent becomes paramount, and we have heard a lot about that today.
I’m very much aware and I’m overly sensitized to the actions of a few unethical, free-wheeling, greedy, corrupt people either seeking office or elected public officials or their agents who bring shame and disgrace to the public process, and they unfairly stigmatize the majority of sincere, honest, hard-working and dedicated individuals who conscientiously strive to serve the public trust. Private citizens do not have the right to choose and pick which laws they will respect and obey, and in the same sense, this applies to this Commission.
I believe that clear and convincing evidence has not surfaced in this case, and I quote the evidence of actual malice may not be presumed. The complainants have the option and the opportunity to seek justice in the court of law.
What I have heard here today is some compelling arguments that may have been made regarding the inadequacies of NRS 294A.345 that strongly suggest clarification or repeal of this law, and that is beyond the forepower of this Commission to deal with at this time.
Now I neither condone nor respect the scurrilous, negative, unethical, shameful campaign practices, and I still hold out hope that some day an angry voting public will hold those who practice this type of campaigning accountable and responsible. Meanwhile, we’re obliged to abide by the law as is.
I think this, these documents right here are scurrilous, shameful, disgusting, but unfortunately, unfortunately, under the provisions of 294A.345, they are legal.
However, there is – under the laws of common decency, in the vernacular of the kids, they suck. I’m not comfortable with making subjective moral judgments. Unfortunately, negative campaigners don’t get what they deserve; they get elected.
Candidates need to show more restraint in terms of negative campaigning, and the voting public needs to do a better job of holding them responsible and accountable. And having said all that, I intend to vote for the motion.”
Chairman Russell repeated that the motion on the floor was primarily as to agenda item 02-15 and that he wanted to make it clear that was only action dealing with Francis Allen. He asked if any other Commissioners wished to make a comment.
Commissioner Kosinski: “Having run in a few campaigns myself, back in the days before they became quite so aggressive as they are today, I can understanding how Mrs. Forsythe was very upset when she was presented with the material, not the material published by Miss Allen but the material published by the so-called Liberty, Nevada Republican liberty group.
However, having said that, as was pointed out earlier, the burden of proof is on the complainant in this case to show all of the elements of the violation under the Campaign Practices Act, and I do not believe that the evidence shows, number one, that Miss Allen’s material itself was defamatory or was false, and nor was there clear and convincing proof that Miss Allen was in any way involved with the publication of the material by Mr. Harris’ group.
So I would have to support the motion by Mr. Adler.”
Chairman Russell repeated that the Commission was talking only about the motion with regard to Miss Allen and turned the comments over to Commissioner Sheets.
Commissioner Sheets: “I understand. ‘A hair perhaps divides the false and truth.’ That is Omar Khayyam and Rubaiyat. And I can understand in looking at Miss Allen’s piece, that that may be a hair that looks pretty thin to everybody involved.
But nonetheless, the statute sets out, as Commissioner Adler said, a fairly specific criteria of not only intending to impede, which the Commissioner points out really is if you are running against somebody and you post a sign, you are arguably trying to impede, but it’s the actual malice part of it. I just in my view having listened to what I did, I don’t like any particularly negative campaigning, but I don’t find the actual malice in Miss Allen’s actions that are necessary under the statute to find that there’s been a violation of the statute. So I’m going to support the motion as well.”
Chairman Russell thanked the Commissioners for their comments, and stated: “As Chairman, I go along with Commissioner Kosinski’s view. I believe a review of the particular, one particular document that we do have, 4-J, the comparison piece, I find most of the information contained therein to be truthful. The only, I guess, area that you would get kind of close on is this failed campaigns indication, and again, I think there was sufficient evidence to indicate that at least Miss Forsythe was looking into running for Mayor of Reno, and as a result of that, I don’t know whether she was forced out or not, but I’m not sure any of that arises to the particular standards required for a violation under 281.477. Therefore, I would support the motion as well.”
The motion was put to a vote and passed unanimously.
Chairman Russell stated the second matter to be taken up was 02-16, which concerned the complaint against the Nevada Republican Liberty Caucus; also known as Nevada Liberty Caucus. The Commissioners were asked if they wished to make additional comments.
Commissioner Hatcher: “First I want to say, Mr. Chairman, that I do find these mailers offensive.
What was of concern to me was the testimony that was given; I believe it was by Mr. Burdish. Mr. Burdish directly stated that it was not the Nevada Liberty Caucus that did that. He stated that the decision was made by Mr. Burdish and Mr. Harris, and that the Nevada Liberty Caucus had absolutely noting to do with these three mailings. So if they had nothing to do with the mailings, I don’t know how we could find that the Nevada Liberty Caucus did anything wrong.”
Chairman Russell: “Other than possibly the fact that they are the Nevada Liberty Caucus, I think.”
Commissioner Hatcher: “That is a concern that I have, whether there are additional people there, in there.”
Chairman Russell: “I’m not sure what legal entity they are. I think that is a significant question in regards to really who they truly are. Are they two individuals out there basically going forward on a particular mission or whatever.”
Commissioner Adler: “I think what disturbs me about these mailers actually is that I really do take offense to the fact that there was an attempt I think to ruin the reputations of two fine medical professionals, and that does bother me, because everything we had here today shows that not only they are competent medical practitioners, but superior medical practitioners.
But one of the things – I have a problem with this, and I have a problem I guess because I agree with this, and I have a problem I guess because I agree with the Nevada Republican Liberty Caucus in this regard, I think to rule that these are violations of the statute, you have to essentially be regulating the content of free speech of a group, and I really don’t think we can do that under the Constitution. I really do believe that violates the First Amendment to the Constitution of the United States. Even though I really find these offensive, I just don’t see how we can do that.
Because that’s the most rigid standard under the U.S. Constitution is content, and that’s exactly what we’re addressing here is content and content in terms of can a group put this out. And it would have a chilling effect on future free speech if you are to find somebody in this context.
So maybe somebody else can address that. But I don’t know how we don’t suppress free speech if we were to find this in violation.”
Commissioner Sheets: “There’s a phrase that’s not politically correct, and I can’t use in a public meeting, that people use all the time, but Francis Bacon in the 1600’s said, ‘Hurdle your kalium boldly. Something is sure to stick.’
I think you get the import of what I’m saying. I look at these types of mailers that Mr. Burdish and Mr. Harris acknowledge are their creation, and it’s clear what they are trying to do at the late stages of a campaign when they stoop to do this kind of campaigning, or satirization, if you care to accept the testimony of one of the individuals anyway.
I agree with Commissioner Russell, Chairman Russell when he reminded Mr. Harris a couple of times that as members of the Commission, we’re obligated to follow what the law is. The law in this case is NRS 294A.345, which was adopted after all by the Nevada Legislature in their capacity of representing Nevada citizens. That’s the law we’re given. Whether we personally agree with it or not in our personal opinion probably isn’t – shouldn’t be directed to how we cast our vote here.
It is the law in the state. We have to respect it until the Legislature changes it or a judicial authority advises us that the law is infirm, and that hasn’t happened at this point yet.
But having said that, 294A.345 sets out specific criteria and requires a clear and convincing delineation of evidence if we are to act under that statute. It also tells us that there has to be actual malice, which is defined in this instance or can be defined as a reckless disregard of the truth.
I have heard the testimony, I have heard Mr. Burdish’s testimony that his intent was to impede Mrs. Forsythe’s campaign. And I don’t like at all these mailers or the content or what is attempted to gotten by their use. I truly have empathy for Mrs. Forsythe here as she watched what she claims to have been the impact of this on her campaign.
I think they are cowardly types of publications, and it’s a cowardly way of going about conducting a political campaign. But nonetheless, it’s a question of whether there is maliciousness in doing this, and I can’t find that actual maliciousness there.
‘Free speech, and more so political speech,’ paraphrasing Justice Douglass, in my favorite free speech opinion, ‘isn’t to be regulated like diseased cattle or impure butter. Today’s audience that hissed yesterday may applaud today for the very same performance.’ That is what Justice Douglass said in the Kingsley Books case back in 1957.
And I agree that free speech is the most sacred of our freedoms, and as such, as despicable as I find this kind of campaigning by cowardly people, I can’t find that it violates the statute here.”
Commissioner Kosinski: “This case was particularly interesting to me because it was the first time since law school that I had an opportunity to review the cases relating to the First Amendment, and they have come a long way in all those years. I won’t tell you how many years that has been. In fact, I was surprised in reading some of the cases.
The Court clearly goes out of its way to indicate that they do not want to control, they don’t want to inhibit free speech in political campaigns, and that’s really what we’re talking about here.
Dr. Forsythe was not a candidate. I think had some language been used in here that would impliedly refer to him – and I can understand his anger and probably his hurt at having that happen.
Most of the language, quite frankly, that I find in these two brochures, I think there is enough truth, there is enough truth in the facts presented in this case relating to the mayoral campaign up in Reno and relating to the complaint and then stipulation and order that was entered by the Board of Medical Examiners against Dr. Forsythe, I think there is enough there that it would support these statements probably being labeled by a court hyperbole or something that. Hyperbole, is that the word?”
Chairman Russell: “Political hyperbole I think is the term used.”
Commissioner Kosinski: “Courts have repeatedly said, come at it from every imaginable side that we’re going to give a lot of leeway to political discourse. And I think that most of these two brochures are just that.
I am more troubled with the word quack. It came out of left field as far as the facts are concerned. There is nothing here in the record that in my opinion would even suggest that either Dr. Forsythe or Mrs. Forsythe in any way are not highly qualified practitioners in their field, and I think that the term was really inappropriate.
However, again, reading the Supreme Court cases, I just think that they say in the heat of a political campaign, a lot of excesses in the use of language are going to be permitted, and so I again, as I indicated earlier, I don’t find by clear and convincing evidence that the content of these brochures are false or false in the sense that they would lend themselves to a finding of a false statement under the provisions of 294A.345.
So I would not be able to support a motion that would find a violation of that statute.”
Chairman Russell: “For the record, my thoughts, basically when people seek to run for political office, and as Mrs. Forsythe has done, it’s unfortunate but they invite the press and the public into their lives. When you invite the press and the public into your lives, it appears that everything is fair game, even though it shouldn’t be.
Going back to 1995 and finding a no contest pleading in an administrative hearing to me is offensive. I think it’s not right to come forward and use that as a pure basis to go campaign against an individual. I think that it’s a distorted attempt to ridicule Mrs. Forsythe and her husband.
However, when you truly go through these two particular pieces, I have tried to go through and analyze them, they go over the line to a certain extent, but they also go right along the line. It’s kind of interesting. Because they use the word he pleaded no contest to overcharging their dying patients. It doesn’t say Dr. Forsythe. It says their, referring back to both of them. And there is little innuendos as you go through these things that are over the line and I think are inappropriate.
However, the problem we get into again is this political hyperbole where politically you go along this particular path and people come forward and say things at the last minute and you try and justify them. We are governed by NRS 281.477, and that’s one of our guiding lights. The other guiding light obviously is the First Amendment and the protection of freedom of speech.
And I’m troubled because I think and believe that these were probably inappropriate, they are over the line. I understand why they were done. They were clearly done to impede Mrs. Forsythe’s campaign.
I think they contain certain information that’s pretty close to being false statements of fact. I think things are taken out of context. I think things are put in a particular way for a particular reason. “Overcharging cancer patients” is the headline.
Now, clearly, Mrs. Forsythe didn’t overcharge any cancer patients. Clearly, some of the information is inappropriate.
However, we’re governed by the First Amendment also as well as by the statute, and it is a very difficult problem, and again, when you put yourself in the political arena, it is unfortunate that you have to go through this and have the implication and the impact on you and your family, which is clearly inappropriate.”
Commissioner Sheets made the motion, and Vice Chairman Flangas seconded, that the Commission find upon due consideration of the evidence that was presented that the Nevada Republican Liberty Caucus, also known as the Nevada Liberty Caucus, had not violated the campaign practices provisions of NRS 294A.345. The motion was put to a vote and passed unanimously.
Chairman Russell adjourned the meeting at 4:44 p.m.
Minutes approved by the Commission on November 7, 2002.
NEVADA COMMISSION ON ETHICS
By: Todd Russell, Chairman