Opinion No. 98-05CP

This Opinion is in response to a request for opinion filed pursuant to NRS 294A.345 and 281.477 with the Nevada Commission on Ethics (Commission) by Richard Ziser against William Cames and Jack Levin. A telephonic hearing on the opinion request was held on September 24, 1998, at locations in Reno and Las Vegas, Nevada. Mr. Ziser represented himself, Mr. Levin represented himself, and Mr. Cames did not attend the hearing but he had submitted a written response. The Commission heard testimony from Mr. Ziser and Mr. Levin. At the conclusion of the hearing, the Commission deliberated the matter and reached a decision. The Commission now issues the Findings of Fact and Opinion which follows.

1. Mr. Ziser and Mr. Levin were two of three candidates running for Clark County School Board (District F) in the 1998 campaign season.

2. On August 30, 1998, an advertisement ran in the Las Vegas Review-Journal. The advertisement was a paid political advertisement by the Las Vegas Typographical Union No. 933 (Local 933) and four union printing companies, PDQ Printing, In-House Printers, Time Printing, and Newmark Signs.[1]

3. Local 933's advertisement contained the following language pertinent to this inquiry:

Candidates for public office can show their support for the working men and women of our community BEFORE they are elected to public office by choosing a LOCAL UNION PRINTER rather than a non-union printer. We, the members of the Las Vegas Typographical Local 933 recommend that union members support candidates that have shown their support for local union workers. Those candidates whose names appear in BOLD TYPE are candidates who support union members by buying LOCAL UNION PRINTING and SIGNS. As reported by our member Union Printers.

Clark County School Board Candidate (District F) Richard Ziser had a machinist union emblem on his campaign material, it was not printed by Printing Union Labor. (Emphasis in original.)

In the body of the advertisement, Mr. Levin's name was bold-faced and notably larger than Mr. Ziser's name and the name of Susan Brager, the third candidate in the primary.

4. Thomas Cames is the owner of PDQ Printing and Newmark Signs. Thomas Games is also Mr. Levin's campaign manager. William Games is Thomas Cames' son and is employed as the sales manager for PDQ Printing. William Cames is also president of Local 933.

5. Mr. Levin was aware that Local 933 was going to run its advertisement about two days before the advertisement ran. Mr. Levin testified that he was not consulted about and did not know what the text or content of the advertisement would be.

6. Mr. Ziser used Marc Wilkinson Printers to print his campaign materials. Mr. Ziser's printed materials displayed the "bug" from the International Association of Machinists and Aerospace Workers (IAM&AW) because Marc Wilkinson Printers was signatory to a Die Authorization and Label Agreement with the IAM&A W.

7. On September 1, 1998, the primary election was held. Mr. Levin defeated Mr. Ziser by 914 votes.

The Commission has jurisdiction over this matter and these parties pursuant to NRS 294A.345 and 281.477 because they are both candidates as defined in NRS 294A.005.

1. A person shall not, with actual malice and the intent to impeded the success of the campaign of a candidate, cause to be published a false statement of fact concerning the candidate, including, without limitation, statements concerning:

(f) Whether another person endorses or opposes the candidate. (Emphasis supplied.)

According to NRS 281.477(7), the person who makes the request (in this case Mr. Ziser) bears the burden of proving the elements of the offense under NRS 294A.345 by clear and convincing evidence.

This was a close case, but we must conclude that Mr. Ziser has not carried his high burden of proof against either Mr. Levin or Mr. Games. Regarding Mr. Levin, the evidence established that local 933'5 advertisement was not created by Mr. Levin’s campaign and that Mr. Levin had no involvement in the text or substance of Local 933's advertisement. The only potential involvement Mr. Levin may have had in local 933'5 advertisement was that Mr. Levin’s campaign manager is the father and employer of William Games, and William Games is an officer in Local 933, but we find this evidence insufficient to conclude that Mr. Levin was actually involved in the preparation of local 933'5 advertisement. Thus, Mr. Levin did not violate NRS 281.345.

Regarding William Games, we are satisfied that he must have been involved in the preparation, text, and substance of local 933'5 advertisement. We are also satisfied that the intent of local 933'5 advertisement was to endorse and promote the candidacies of those who used the printing services of local 933 printers, including PDQ Printers, William Games' employer and his father's business. Therefore, if any statements in local 933'5 advertisement were false, we could assess a penalty against William Games. Because we find that no statements in Local 933'5 advertisement were false, we cannot find a violation of NAS 281.345 by William Games.

It is apparent that Local 933'5 relationship with IAM&AW is anything but brotherly and that William Games is out front regarding Local 933'5 animosity regarding IAM&AW. The evidence showed that William Games had called Mr. Ziser and Mr. Ziser's campaign manager specifically to make disparaging remarks regarding IAM&A W printers, including Marc Wilkinson Printers. The language throughout Local 933'5 advertisement is calculated to define "union printing" to mean only printing done by Local 933'5 printers. In fact, the language specifically targeted at Mr. Ziser can only be read as a disparagement of Mr. Ziser for using a printer who, while a union printer, was not a Local 933 printer.

Obviously, the dispute between Local 933 and IAM&A W spilled over into Mr. Levin's and Mr. Ziser's race. Nonetheless, none of the statements in Local 933'5 advertisement are false. It is true that Mr. Ziser had a machinist union emblem on his printed campaign materials. It is true that Mr. Ziser's campaign materials were not printed by "Printing Union Labor," since that term was essentially defined in the introductory paragraph to mean Local 933 printers.

We must caution, though, that this was a close case because Local 933'5 advertisement was clumsy and careless. The advertisement is on its safest footing when it castigates candidates for not using Local 933 printers; the advertisement is on precarious footing when it implies that a candidate who does not use Local 933 printers is not a supporter of and should not be supported by all organized labor. Local 933'5 advertisement was irresponsibly worded and dangerously close to being false, but because our findings must be supported by "clear and convincing evidence" (see NRS 281.477(7)), we must conclude that Local 933's advertisement did not contain any false statement of fact concerning Mr. Ziser. Therefore, we must find that William Games did not violated NRS 281.345.

Based upon the record, neither Mr. Levin nor William Games violated NRS 294A.345 regarding statements made about Mr. Ziser in Local 933's advertisement.

It is specifically noted that the foregoing Opinion applies only to these specific facts and circumstances. The provisions of the Nevada Revised Statutes quoted and discussed above must be applied on a case-by-case basis, with results which may vary depending on the specific facts and circumstances involved.

[1] On September l, 1998, Time Printing ran an advertisement in the Las Vegas Review-Journal indicating that Local 933's inclusion of Time Printing was misleading because Time Printing refused to be involved with the Typographical Union's advertisement and that legal action was being pursued. Time Printing's advertisement also listed candidates who had supported union labor by using Time Printing for their printing needs, including some candidates who had not been shown as having used printer's union printing in Local 933’s advertisement.