Opinion No. 98-17CP

BEFORE THE NEVADA COMMISSION ON ETHICS

IN THE MATTER OF THE REQUEST FOR OPINION CONCERNING

ALLEGATIONS THAT HERB BROWN, incumbent candidate for North Las Vegas Constable,

IMPEDED THE SUCCESS OF THE CAMPAIGN OF

STEVE BERGSTROM, Candidate for the Office of North Las Vegas Constable

HERB BROWN and MARK KINCAID

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 Steve Bergstrom against Herb Brown and Mark Kincaid. A telephonic hearing on the opinion request was held on December 4, 1998 which was continued for technical reasons with the consent of both parties. The continuation of the hearing was held on January 15, 1999 in Las Vegas, Nevada. Mr. Bergstrom appeared and represented himself, Mr. Kincaid appeared and represented himself, and Mr. Brown originally appeared and represented himself at the December 1998 hearing and was represented by Frank Cremen at the January 1999 hearing. The Commission heard testimony from Mr. Bergstrom, Mr. Brown, Mr. Kincaid, and Justice of the Peace Stephen Dahl and received several exhibits into evidence. 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.

FINDINGS OF FACT

1.   Mr. Brown was the incumbent and the Democratic candidate for North Las Vegas Constable, and Mr. Bergstrom was the Republican candidate for the same position. Mr. Kincaid was Mr. Brown's campaign manager.

2.   In the promotion of his campaign, Mr. Bergstrom published a flier outlining his ideas regarding the constable's office and how he thought the constable's office could improve law enforcement in North Las Vegas. (Because the flier contained a characteristic depiction of a cowboy, we will refer to this flier as the "cowboy flier.") Mr. Brown and Mr. Kincaid received copies of Mr. Bergstrom's cowboy flier.

3.   After receiving Mr. Bergstrom's cowboy flier, Mr. Brown and Mr. Kincaid began preparing a flier to promote Mr. Brown's candidacy. On one side of Mr. Brown's flier, he stated that he was the "only qualified candidate for North Las Vegas Constable," and he compared himself to Mr. Bergstrom in a three column chart with the following pertinent language:

(Emphasis in original.)

 4.   On October 22, 1998, Mr. Bergstrom and Mr. Brown attended a candidate's forum at the West Las Vegas Library. At this meeting, Mr. Brown heard Mr. Bergstrom discuss Mr. Bergstrom's qualifications, including that Mr. Bergstrom had completed a P.O.S.T. certification program in California and that Mr. Bergstrom had been a police officer in California. This was the first time Mr. Brown and Mr. Bergstrom met. According to Mr. Brown, this is the first time that he had ever heard of these experiences and qualifications in Mr. Bergstrom's background.

5.   By October 22, 1998, Mr. Brown's flier with the above language was already at his printer's shop for printing. Mr. Kincaid had arranged on Mr. Brown's behalf that the flier would be mailed on October 27 or 28, 1998 so that it would be received by Mr. Brown's constituents on the weekend before the November 3, 1998 election.

6.   After the October 22, 1998 candidate's forum, Mr. Brown attempted to verify Mr. Bergstrom's claims regarding his P.O.S.T. certification and his employment as a police officer in California. Mr. Brown had already verified that Mr. Bergstrom was not P.O.S.T. certified in Nevada. It was not until October 28, 1998 that Mr. Brown was able to verify that Mr. Bergstrom had been employed as

a police officer in California for eleven months and that Mr. Bergstrom had completed a P.O.S.T. certification program in California.

7.   On October 28, 1998, Mr. Brown's flier was transferred by the printer to a mailing company and was mailed to thousands of potential voters in North Las Vegas.

8.   In May 1975, Mr. Bergstrom completed a 400 hour course at the Basic Law Enforcement Academy at the Northern California Criminal Justice Training and Education System, Santa Rose Center. In 1975, Mr. Bergstrom also received additional certificates of completion for courses in Non-Lethal Chemical Agents, Crisis Intervention, Advanced Driver Training, Advanced First Aid and Emergency Care, Operation of the lntoxilyzer, and Operation of the Doppler Traffic Radar. Mr. Bergstrom also received the rank of lnkyu from the National Board of Examiners of the Armed Forces Judo Association. Also in 1975, Mr. Bergstrom received an Associate in Science degree with High Honors from Santa Rosa Junior College.

9.   Mr. Bergstrom was employed as a police officer by the Santa Rosa Police Department from February 24, 1975 through January 15, 1976.

10.   After leaving the Santa Rosa Police Department in early 1976, Mr. Bergstrom did not work again in law enforcement. Instead, Mr. Bergstrom has worked in private business and now manages his own company, Fortis Investors.

11.   Mr. Bergstrom satisfied the minimum qualifications for age and residency required for his name to be lawfully placed upon the ballot.

12.   On November 3, 1998, the election was held, and Mr. Brown was elected North Las Vegas Constable.

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(l)(a) and (b), 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:

(a) The education or training of the candidate.

(b) The profession or occupation of the candidate. (Emphasis supplied.)

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

Mr. Bergstrom complains that the statements "NONE' regarding his qualifications and education and training are factual assertions and that these factual assertions are false. We agree, although not entirely for the reasons urged by Mr. Bergstrom.

Concerning his qualifications, the record showed that Mr. Bergstrom was legally qualified to be a candidate because he had attained sufficient age and residency in North Las Vegas. On this basis alone, Mr. Bergstrom urged us to find that Mr. Brown's statement concerning qualifications was false. However, we find this analysis to be too simplistic.

We think it is clear that Mr. Brown intended to compare his substantive qualifications, education and training to those of Mr. Bergstrom. We are not troubled by such an advertising technique because, when used truthfully, fairly and correctly, such a comparison may educate voters regarding the substantive differences between two candidates. Mr. Brown's comparison, though, went too

far, and in doing so, was false

The record showed that Mr. Bergstrom had numerous educational and training attainments, some related to law enforcement and some related to his private business.

Thus, it is true to say that Mr. Bergstrom possessed different qualifications, education, or training than Mr. Brown possessed. It is also true to say that in Mr. Brown's opinion Mr. Bergstrom possessed no relevant qualifications, education, or training to be constable. It is false to say, though, that Mr. Bergstrom possessed NO qualifications, education, or training that would qualify him to be constable. The difference between these two statements is the difference between Mr. Brown being the only qualified candidate and the best qualified candidate. This semantic distinction makes all the difference because it is the difference between truth and falsity.

Had Mr. Brown hedged his statement by making it a statement of opinion, not fact, or said words to the effect of "None listed" (suggested at hearing by Mr. Brown himself, or "?," it could not be said that he had made a false statement.

Instead, Mr. Brown made an unequivocal statement of fact that Mr. Bergstrom had no qualifications, education, or training. We can read Mr. Brown's "NONE" in no other way. As worded, Mr. Brown's flier is not hyperbole, opinion, or puffing (all of which would be lawful), but is a bald and bold statement of fact that the clear and convincing record of this hearing showed to be false.[1]

The other statement complained of by Mr. Bergstrom was, "Nevada P.O.S.T. . . . doesn't have any record of certification, which is required." (Emphasis supplied.) It is simply false, and Mr. Brown conceded this at hearing, that a constable is required to be P.O.S.T. certified. Thus, this statement of Mr. Brown is false.

At hearing, Mr. Brown argued for an ambiguous reading of his own statement by claiming that he meant that registration or certification with Nevada P.O.S.T. is required before one can represent himself to be "P.O.S.T. certified." If this is what Mr. Brown meant, it is not what he said. Taken within the context Mr. Brown himself framed, namely a comparison of his and Mr. Bergstrom's "Education and Training," Mr. Brown clearly intended what the statement actually says -- that a "record of certification" with P.O.S.T. is "required" as an educational or training attainment for a constable. Such a statement clearly supports Mr. Brown's express thesis that he was the only qualified candidate for constable.

Mr. Brown's testimony in support of creating ambiguity in his own flier was incredible, was unpersuasive, was disingenuous, and appeared to be concocted after-the-fact to attempt to make ambiguous what was patently false. Moreover, the patent falsity of this statement was grossly unfair and insidious because most voters would have no way of knowing that P.O.S.T. certification was not a requisite for the post of constable. In fact, if it were true that P.O.S.T. certification was required for a constable, then Mr. Brown's claim to be the only qualified candidate for constable would be literally true. This is surely the impression intended by the incumbent constable.

Having concluded that three of Mr. Brown's statements in his flier were false, we must now determine under NRS 294A.345(2) whether these statements were made with "actual malice and the intent to impede the success of' Mr. Bergstrom's campaign. "Actual malice" is defined in NRS 294A.5(a) to mean "knowledge of the falsity of a statement or reckless disregard for whether a statement is true or false." We conclude that all three of the false statements made by Mr. Brown in his flier were made with actual malice.

Mr. Brown's statement regarding the requirement of P.O.S.T. is undeniably malicious since the statement was made by the incumbent constable about the requisites of the office. Mr. Brown admitted at hearing that he knew that a constable is not required to be P.O.S.T. certified. A false statement knowingly made is a statement made with actual malice as defined in NRS 294A.345(5)(a). Mr. Brown's "P.O.S.T." statement violated NRS 294A.345(2) because it was just such a false statement knowingly made.

Mr. Brown's statements that Mr. Bergstrom had no qualifications, education, or training to be constable were made with reckless disregard for the truth for at least two reasons. First, Mr. Brown knew on October 23, 1998 that Mr. Bergstrom claimed to have relevant law enforcement training, certification, and experience, which, while arguably not comparable to his own, was certainly more than "NONE." Mr. Brown attempted to verify Mr. Bergstrom's claims and did verify them only five days later. Mr. Brown showed reckless disregard for the truth or falsity of his claim that Mr. Bergstrom utterly lacked any qualification, education, or training when Mr. Brown allowed his flier to be printed and mailed before he verified Mr. Bergstrom's claims. In fact, at hearing Mr. Brown himself admitted that he wished that he had put "None listed" instead of "NONE" on his flier, and yet he did nothing to make right and true the literature he knew his campaign would publish. Cost and political expediency are sorry excuses for such callous conduct. Such disregard for the truth or falsity-of his campaign's publications was reckless.

Second, Mr. Brown admitted at hearing that the reason he stated "NONE" regarding Mr. Bergstrom's qualifications, education, and training was because Mr. Bergstrom had not listed any on Mr. Bergstrom's cowboy flier. How curious is this reasoning. Is it really reasonable or fair to assume that one's opponent has NO qualifications, education, or training because the opponent decides to run an issue-oriented advertisement rather than a qualifications-oriented advertisement? Surely it would have been fair and reasonable for Mr. Brown to have relied upon and taken issue with statements Mr. Bergstrom made about himself in Mr. Bergstrom's own campaign literature. Just as surely, though, it was unfair and unreasonable to assume anything about Mr. Bergstrom based upon what Mr. Bergstrom did not say about himself in his campaign literature. It simply will not and cannot do to claim that a statement is true because one's opponent said nothing about it in his preceding campaign literature. Such conduct seems the very definition of reckless.

Finally, we think that the falsity, structure, wording, timing, and manner of the publication of Mr. Brown's flier render it self-evident that the intent of the flier was to impede the success of Mr. Bergstrom's campaign under NRS 294A.345(2).

Thus, we must conclude that Mr. Brown's three statements just discussed regarding Mr. Bergstrom in Mr. Brown's flier were all violations of NRS 294A.345(2). For these violations, we impose a civil penalty of $1 0,000 upon Mr. Brown pursuant to NRS 281.551(4). We set this penalty at this amount because Mr. Brown intentionally timed the publication of his flier so that it would reach the potential voters without allowing Mr. Bergstrom the time for any response or recourse, which is precisely the concern addressed with the treble penalty in NRS 281.551(4) for publications within 10 days of an election.

We assess the civil penalty against Mr. Brown alone because the evidence showed that Mr. Brown was the responsible party for the language in his flier. While we can envision cases where campaign managers might also be responsible for false publications made by a campaign, in this case, Mr. Bergstrom did not meet his burden under NRS 281.477(7) with respect to Mr. Kincaid.

Mr. Brown shall pay the penalty by cash or by cashier's check or money order made payable to "State of Nevada, Office of the Treasurer," to be received by the Commission office no later than 5:00 p.m. P.S.T. on February 19, 1999. Failure to pay the penalty shall result in such legal action as is necessary to collect the penalty.

CONCLUSION

Based upon the record, the Commission concludes that Mr. Brown violated NRS 294A.345(2) with statements made in his flier regarding Mr. Bergstrom's qualifications, education, and training. Because the statements were made with actual malice as defined in NRS 294A.345(5)(a), we impose upon Mr. Brown a civil penalty in the-amount of $10,000.

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:  January 21, 1999.

NEVADA COMMISSION ON ETHICS

BY:  /s/  Mary E. Boetsch, Chairwoman