98-17 Rehearing

This matter came before the Commission for rehearing on March 25, 1999, on a Petition for Rehearing filed on January 28, 1999, by Herb Brown, City of North Las Vegas Constable, by and through his attorney, Frank J. Cremen, Esq. Mr. Brown's Petition challenged the validity of Opinion No. CP98-17 based upon (a) jurisdictional grounds, and (b) his claim that the statement in his campaign literature that the constable is "required by statute to be P.O.S.T. certified" is "literally true."

Constable Brown appeared in person and with his counsel, Frank J. Cremen, Esq. Steve Bergstrom,[1] representing himself, and Thomas Jeeves, a City of North Las Vegas deputy constable under Mr. Brown, appeared as witnesses. The witnesses were sworn, and the Commission heard testimony from Mr. Brown and Mr. Jeeves, along with the argument of Mr. Brown's counsel.

On February 5, 1999, the Commission issued an Order On Petition For Rehearing. The Order (a) denied a rehearing on the jurisdictional ground, and (b) required Mr. Brown to obtain an opinion from the North Las Vegas City Attorney regarding the P.O.S.T. certification issue.[2]

Specifically, the Commission ordered Mr. Brown to obtain an opinion from the North Las Vegas City Attorney that would answer the following question: "Was there any statute, regulation, ordinance, or city policy in effect in October 1998 that required as one of the North Las Vegas Constable's official duties that he carry a gun?" The Commission required Mr. Brown to file the City Attorney's opinion with the Commission no later than 5:00 p.m., February 25, 1999, or his petition for rehearing would be denied.

On February 24, 1999, a letter from Frank J. Cremen, Mr. Brown's attorney, was received at the Commission's office. Enclosed with Mr. Cremen's letter was a letter from the Clark County District Attorney's Office. Neither letter definitively resolved the question at issue.

On March 5, 1999, the Commission issued its Order Granting Limited Rehearing on the sole issue of whether, as a matter of law on or before the date Mr. Brown distributed his campaign flier which is the subject of this matter, the City of North Las Vegas Constable was required to be P.O.S.T. certified. The Commission conducted the rehearing on March 25, 1999.[3]

After full consideration of the record in this matter and the testimony, evidence, and argument received at the rehearing, the Commission issues the following Findings of Fact, Conclusions of Law, and Opinion:

2. In 1998, both Mr. Brown and Mr. Bergstrom campaigned for the elected office of City of North Las Vegas Constable.

3. In a campaign flier to promote his candidacy, Mr. Brown stated that he was the "only qualified candidate for North Las Vegas Constable," comparing his qualifications to those of Mr. Bergstrom.[4] Among his statements in the campaign flier, Mr. Brown asserted as a matter of fact that Mr. Bergstrom "doesn't have any record of [P.O.S.T.] certification, which is required." (Emphasis added.)

4. Mr. Brown knew that the statement contained in his campaign flier that the constable must be P.O.S.T. certified was a false statement and that distribution to potential voters was timed so that Mr. Bergstrom would have no opportunity to respond to the false statement.[5]

5. Mr. Brown was ultimately elected City of North Las Vegas Constable over his opponent, Mr. Bergstrom.

6. After the original hearing in this matter, the Commission found that Mr. Brown acted with actual malice when he distributed his campaign flier containing false statements intended to impede the success of Mr. Bergstrom's campaign, in violation of NRS 294A.345(2).

2. The Commission has jurisdiction over this matter pursuant to NRS 294A.345 and 281.477.

3. NAC 481.040 and NAC 481.050 provide the minimum standards an individual must meet to be appointed a peace officer. Those standards include P.O.S.T. certification.

4. NAG 481.036 states that an elected peace officer is not required to meet the standards established by NAG 481.040 and 481.050. (Emphasis added.)

Based upon the evidence presented in this matter, and the law as it relates hereto, an individual running for the elected position of constable is not required to be P.O.S.T. certified.

The office of Constable of the City of North Las Vegas is an elected position. Although NAC 481.040 and NAC 481.050 require appointed peace officers to be P.O.S.T. certified, NAC 481.036 exempts an elected peace officer from the P.O.S.T. certification requirement.

The Commission reaffirms and incorporates herein by reference its Opinion No. CP98-17 dated January 21,1999, including the civil penalty imposed against Mr. Brown therein pursuant to NRS 281.551(4).

NOTE: THE FOREGOING OPINION APPLIES ONLY TO THE SPECIFIC FACTS AND CIRCUMSTANCES DEFINED HEREIN. FACTS AND CIRCUMSTANCES WHICH DIFFER FROM THOSE IN THIS OPINION MAY RESULT IN AN OPINION CONTRARY TO THIS OPINION. NO INFERENCES REGARDING THE PROVISIONS OF NEVADA REVISED STATUTES QUOTED AND DISCUSSED IN THIS OPINION MAY BE DRAWN TO APPLY GENERALLY TO ANY OTHER FACTS AND CIRCUMSTANCES.

[1] Mr. Bergstrom filed the original Request for Opinion with the Commission in this matter.

[2] The issue of whether the North Las Vegas Constable was required to be P.O.S.T. certified was not raised by Mr. Brown at any prior hearing on this matter and, therefore, no facts were present in the record to support Mr. Brown's argument. Nonetheless, the Commission concluded that "the interests of justice dictate that this Commission obtain further advice before it can rule upon Mr. Brown's second argument for rehearing." See, Order On Petition For Rehearing, Opinion No. CP98-17, dated February 5, 1999, at page 2.

[3] Testimony educed at the rehearing demonstrated that Mr. Jeeves was told when he was hired (by Mr. Brown's predecessor, Lou Tabat) that he would have to carry a firearm and be P.O.S.T. certified; that he attended P.O.S.T., graduated, and became certified after one year of full time employment as a peace officer; that Mr. Brown required his deputies to be P.O.S.T. certified; that Mr. Tabat received his P.O.S.T. certificate through a "grand fathering" process; that when he became Constable, Mr. Brown was told that he would be a "working" constable as opposed to a "salaried" constable, which meant that he would have to serve papers to receive compensation; that Mr. Brown felt, as a matter of choice, it was necessary for him to carry a weapon in discharging his duties as constable; that Mr. Brown had no conversations with I the justice of the peace (who directs the office of the constable) as to whether or not he should carry a gun.

[4] See, page 2, Opinion No. CP98-17 dated January 21, 1999, the original Opinion of the Commission in this matter, for the specific language contained in Mr. Brown's campaign flier.

[5] At the original hearing in this matter, Mr. Brown testified that elected peace officers did not have to be P.O.S.T. certified. At the rehearing, Mr. Brown confirmed that he so testified at the original hearing.