Opinion No. 98-06CP
BEFORE THE NEVADA COMMISSION ON ETHICS
IN THE MATTER OF THE REQUEST FOR OPINION CONCERNING ALLEGATIONS THAT
VIVIAN FREEMAN, incumbent Democratic candidate for Assembly District 24,
IMPEDED THE SUCCESS OF THE CAMPAIGN OF
BROOKS HOLCOMB, Republican candidate for Assembly District 24
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 Brooks Holcomb against Vivian Freeman. A hearing on the opinion request was held on October 21, 1998, in Las Vegas, Nevada. Ms. Freeman was represented by Steve Parsons, and Mr. Holcomb represented himself. The Commission heard testimony from Ms. Freeman and Mr. Holcomb and received several exhibits. 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.
FIND1NGS OF FACT
1. Mr. Holcomb is the Republican candidate for Assembly District 24, and Ms. Freeman is the incumbent and Democratic candidate for Assembly District 24.
2. In a campaign mailer, Mr. Holcomb represented his education to include "Armstrong College School of Law Law Degree," and he represented his experience to include being an "Insurance Litigation Specialist." Mr. Holcomb explained that though he has a law degree from Armstrong College, he is not licensed to practice law in any state. Mr. Holcomb also explained that he is licensed in Nevada as a claims adjuster, but he uses the title "Insurance Litigation Specialist” to identify himself because it is a title used in the insurance industry within which he operates. As an "insurance litigation specialist," Mr. Holcomb investigates and attempts to settle insurance claims that are involved in litigation. Mr. Holcomb has only limited authority to deny third-party insurance claims and no authority to deny first-party claims because of the liability associated with such denials. To perform the work of an "insurance litigation specialist," Mr. Holcomb needs to be licensed as an insurance adjuster but does not need to be licensed as an attorney.
3. Because she had been receiving questions from people during her campaigning that Mr. Holcomb was giving the impression that he is an attorney, Ms. Freeman put the following language in her campaign mailer regarding Mr. Holcomb:
[Mr. Holcomb] [i]s in the business of denying insurance claims as an insurance litigation consultant, although he is not licensed to practice law in our state.
Ms. Freeman intended the statement to clarify that Mr. Holcomb was not a licensed attorney. Ms. Freeman explained that before making this statement in her campaign mailer, she had researched whether Armstrong College had a law school, whether Armstrong College's law school was accredited, and whether Mr. Holcomb was licensed to practice law in Nevada. Ms. Freeman found that Armstrong College once had a law school, but no longer does, and that the law school was never accredited by the American Bar Association. Ms. Freeman also found that Mr. Holcomb is not licensed to practice law in Nevada.
OPINION AND ANALYSIS
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.
At issue in this matter was NRS 294A.345(1)(b) and (c), which provide:
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:
***
(b) The profession or occupation of the candidate.
(c) Whether the candidate committed, was indicted for committing or was convicted of committing a felony or other crime involving moral turpitude, dishonesty or corruption. (Emphasis supplied.)
According to NRS 281.477(7), the person who makes the request (in this case Mr. Holcomb) bears the burden of proving the elements of the offense under NRS 294A.345 by clear and convincing evidence.
In this matter, Mr. Holcomb did not carry his burden of proof. Mr. Holcomb claimed three portions of Ms. Freeman's statement regarding him are false: (1) that Mr. Holcomb is in the business of denying insurance claims," (2) that Mr. Holcomb is an "insurance litigation consultant" and (3) that Mr. Holcomb needed to be licensed to practice law in Nevada to perform his work. We find that none of these statements taken separately or together constitute a violation of NRS 294A.345(1)(b) or (c).
First, Mr. Holcomb admitted that he does occasionally deny third-party insurance claims, although he was careful to explain that the denial decision was made by insurance companies in most cases. Nonetheless, although Mr. Holcomb does not regularly deny insurance claims, he does so occasionally, and thus, Ms. Freeman's statement that he is "in the business of denying insurance claims" is true, albeit somewhat slanted.
Second, Mr. Holcomb admitted that the semantic difference between a "consultant” and a "specialist” was not, of itself, significant. As Mr. Holcomb's testimony continually showed, the title "insurance litigation specialist” is a piece of argot known only by insiders of the insurance industry. Ms. Freeman's designation of Mr. Holcomb as a "consultant” rather than a "specialist” is not a materially false statement.
Third, Mr. Holcomb asserts that Ms. Freeman's statement implies that Mr. Holcomb should be licensed to practice law to lawfully perform the work of an "insurance litigation consultant." This is certainly one possible and reasonable reading of Ms. Freeman's statement, and it may well have been Ms. Freeman's intended reading when she wrote the statement, but the statement is also reasonably susceptible of another and truthful reading.
At the core of this controversy is the appellation "insurance litigation specialist." Mr. Holcomb used the name as a term of art describing a specialty practice within the larger professional practice of insurance adjusters. Mr. Holcomb also argued that Ms. Freeman's statement implies that Mr. Holcomb was practicing law without a license, and Mr. Holcomb produced some evidence in the form of letters from people who drew the same conclusion.
Ms. Freeman interpreted the term "insurance litigation specialist" to mean, essentially, that Mr. Holcomb was an attorney who specialized in insurance litigation. On its face, Ms. Freeman's statement is true because Mr. Holcomb is not licensed to practice law in Nevada. Though Ms. Freeman's assumption is not true -- that is, Mr. Holcomb is not an attorney who specializes in insurance litigation nor does Mr. Holcomb need to be a licensed attorney to perform his job as an "insurance litigation specialist" -- her otherwise true statement does not necessarily lead to a single inference that Mr. Holcomb was engaged in the unlicensed practice of law.
Ms. Freeman's statement could have been better and more fairly worded to express her concerns with Mr. Holcomb's professional status, but we cannot find that her otherwise true statements necessarily lead to a single false conclusion. In this way, this matter is distinguishable from Matter of Dennis Silvers and Bob Beers, NCOE Opinion Nos. CP98-02 and CP98-03, because in the Beers case, the true statements inevitably and intentionally lead to a single, knowably false implication.
As one commissioner aptly put it, Mr. Holcomb "creates his own confusion" by his insistence upon a job title that is known only to industry insiders and is otherwise inherently ambiguous in view of Mr. Holcomb's advertisement that he was a graduate of Armstrong College School of Law.
Because Ms. Freeman's statements are true on their face and do not inevitably and reasonably lead to a single, knowably false implication, we conclude that Ms. Freeman's campaign mailer regarding Mr. Holcomb does not violate NRS 294A.345(1)(b) or (c).
CONCLUSION
Based upon the record, the Commission concludes that Ms. Freeman did not violate NRS 294A.345(1)(b) or (c) by statements made in her political advertisements regarding Mr. Holcomb.
COMMENT
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.
DATED: October 26, 1998.
NEVADA COMMISSION ON ETHICS
By: /s/ MARY E. BOETSCH, Chairwoman