Opinion Nos. 99-15 and 99-16
BEFORE THE NEVADA COMMISSION ON ETHICS
IN
THE MATTER OF THE REQUEST FOR OPINION concerning the conduct of JEFF GRIFFIN,
Mayor of Reno, and KRYS BART, Executive Director, Reno/Tahoe Airport Authority
This
Opinion is in response to third-party requests for opinion filed with the Nevada
Commission on Ethics (Commission) by Sam Dehné regarding the conduct of Jeff
Griffin, Reno Mayor and Krys Bart, Executive Director of the Reno/Tahoe Airport
Authority. With the permission of
Mr. Dehné, request Nos. 99-15 and 99-16 were combined for purposes of hearing
and adjudication. A just and
sufficient cause hearing was held in closed session on June 10, 1999.
Mr. Dehné appeared and represented himself.
Mr. Griffin appeared and was represented by his counsel, Michael K.
Halley, Chief Deputy City Attorney for Reno.
Ms. Bart appeared and was represented by her counsel, Robert H. Ulrich,
General Counsel for the Airport Authority.
Testimony was received from Mr. Dehné, Mr. Griffin, Ms. Bart, Jackie
Decker and Gilbert Weikel.
As
a result of the testimony and evidence presented, the Commission determined that
just and sufficient cause did not exist to proceed further with the matter, so
the Commission dismissed the matter against Mr. Griffin and Ms. Bart.
The
Commission also found that Mr. Dehné’s requests contained false information
and were submitted in violation of NRS 281.525 and 281.551(2).
The Commission now issues the Findings of Fact and Order which follow,
solely addressing Mr. Dehné’s violations of NRS 281.525 and 281.551(2).
1.
On March 29, 1999, Mr. Dehné filed two request for opinions with the
Commission. Mr. Dehné alleged that
Mr. Griffin and Ms. Bart and other airport trustees traveled together to Dallas,
Texas under the guise of meeting with American Airlines executives to discuss
American Airlines’ plans for its recent acquisition of Reno Air. It is alleged
that Mr. Griffin and Ms. Bart used this opportunity in order to conspire and
implement a cargo operations facility on property previously set aside for the
Nevada Air Guard and, that by doing so, Mr. Griffin and Ms. Bart allegedly
violated the Commission’s Opinion 97-48.
2.
Ms. Bart began her tenure at the Reno/Tahoe Airport on December 14, 1998.
Five days later she and Mr. Griffin met for the first time while boarding
a shuttle bus at the Dallas/Fort Worth airport in Texas and made their
introductions. They did not travel
together, either from Reno to Dallas or Dallas to Reno.
3.
Others attended the Dallas meeting including, but not limited to, Senator
Bryan, Governor-elect Kenny Guinn, Tom Tate, head of tourism for Nevada and Phil
Keene of the Reno-Sparks Convention and Visitors Authority (RSCVA).
4.
The purpose of the trip was to meet with American Airlines’ CEO and top
senior staff to discuss the concerns of the City of Reno and Reno/Tahoe
International Airport that American Airlines’ would take away Reno Air’s
service from Reno. The group
presented arguments as to why American Airlines and Reno Air should continue to
provide service in Reno.
5.
It was the belief of the above officials that the Reno area would be
severely impacted if American Airlines withdrew Reno Air service from the
community.
6.
Mr. Griffin attended the Dallas meeting in his capacity as Reno Mayor and
as the chairman of the RSCVA. At no
time during the meeting did Mr. Griffin and Ms. Bart discuss plans for cargo
operations at the Reno/Tahoe Airport.
7.
On or about March 8, 1999, three months after the Dallas meeting, Ms.
Bart canceled the Nevada Air Guard plans and implemented plans for the increase
of the air cargo operations. Her
decision was based on fiscal reasons. Her
analysis had shown that the airport’s growth had slowed.
Landing fees provided the primary funding for the airport.
In recent years, income from airline-related landing fees had decreased
while the air cargo activity had increased. In fact, the air cargo activity had
exceeded 400% growth in the region. Therefore,
the decision to expand the cargo operations was based on fiscal reasons, not
personal ones.
8.
The cargo area in the northern region of the Reno-Tahoe Airport will be
expanded on August 28, 1999 to handle the United States Postal Service (USPS).
The anticipated benefit of this plan is increased landing fees from cargo
operations that will off-set the cost to airline carriers, thereby providing an
economic inducement for the carriers to continue their service at the Reno-Tahoe
Airport. The long-term benefit will
allow northern Nevada to access overnight express air-mail service provided by
the USPS. Major corporations would then be able to use this service.
9.
Ms. Bart testified that the cargo operation decision was made by her and
the Board of Trustees. She has
never discussed this matter with Mr. Griffin nor has she sought his input or
approval on the issue.
10.
Mr. Dehné testified that he did not know nor did he have any evidence as
to what unwarranted benefit, exemption or privilege Ms. Bart would receive by
expanding the air cargo operations at the airport.
11.
Mr. Griffin’s contract with the Airport Authority expires in July 1999.
12.
The trip to Dallas, Texas was reported in two newspapers.
Mr. Griffin appeared on two
live talk shows to discuss the continuation of service of Reno Air.
Therefore, the trip was not clandestine nor secret.
The
Commission has jurisdiction over this matter pursuant to NRS 281.465(l)(a) and
281.511(2)(b) because Mr. Griffin and Ms. Bart are public officers as defined in
NRS 281.4365.
NRS
281.525(l) provides:
It
is unlawful for any person to make, use, publish or disseminate any statement
which is known or through the exercise of reasonable care should be known to be
false, deceptive or misleading in order to induce the commission to render an
opinion or to take any action related to the rendering of an opinion.
A
violation of NRS 281.525(l) is punishable as a misdemeanor.
NRS 281.551(2) provides in pertinent part:
2.
In addition to other penalties provided by law, the commission may impose a
civil penalty not to exceed $5,000 and assess an amount equal to the amount of
attorney's fees and costs actually and reasonably incurred by the person about
whom an opinion was requested pursuant to NRS 281.51 1, against a person who:
(a)
Submits to the commission, in bad faith or with a vexatious purpose, an
accusation or information that is false;
(b)
Submits to the commission, in connection with a request for an opinion
that the commission determines to be without merit, an accusation or information
that is false;. . .
Additionally,
there are several crimes that address the making or presenting of false
information to a governmental agency. See
NRS 197.190 (Obstructing public officer) and NRS 199.120 (Perjury).
Mr.
Dehné violated NRS 281.525(l) and 281.551(2).
Mr. Dehné’s opinion requests allege several facts and circumstances
which he did not verify or attempt to verify before filing his requests with
this Commission. Mr. Dehné
asked that this Commission take a leap of faith not based upon factual
evidence to support his position, but upon innuendo, supposition and blatant
exaggerations in order to find just and sufficient cause to go forward on a
merits hearing. This Commission could not, in good conscience, find just and
sufficient cause. Further, Mr. Dehné’s flagrant disregard for this
Commissions’ processes and procedures shows his contempt for this Commission.
The following provides examples of his blatant attempt to coerce this
Commission.
In
an effort to clear up the apparent confusion regarding Mr. Dehné’s claim that
Mr. Griffin violated this Commission’s Opinion 97-48, it should be noted that
the opinion never instructed Mr. Griffin to refrain from dealings with the
airport. The statement from the
opinion quoted by Mr. Dehné in his request 99-16 that “Mr. Griffin must
disclose the full nature and extent of his company's contract with the Airport
Authority whenever the Reno City Council is considering a matter pertaining to
the Airport Authority, including appointment of trustees, and he must abstain
from voting on those matters as long as there is the potential the Airport
Authority could take further action on his company’s contract” was taken out
of context by Mr. Dehné and applied incorrectly with this matter.
Opinion
97-48 does not mention any prohibition of contact with the Airport Authority.
It does require that Mr. Griffin distance himself from discussing with
city council members and voting at city council meetings upon any matter that
pertains to a relationship important to his business.
Opinion 97-48 narrowly discusses the disclosure and abstention
requirements of NRS 281.501(3). Mr.
Dehné’s attempt to claim otherwise can only be perceived by this Commission
as an attempt to coerce it into rendering a decision in Mr. Dehné’s favor.
At
the June 10, 1999 just and sufficient cause hearing, Mr. Griffin indicated that
his contract with the airport will expire in July 1999.
If the contract with the airport is not renewed, thus ending all private
enterprises Mr. Griffin has with the airport, Mr. Griffin may once again
participate in airport matters with the city council.
As Opinion 97-48 instructs, “Under these circumstances, we must
conclude that NRS 281.501(2) compels Mr. Griffin to abstain from participating
in any future vote regarding the Airport Authority that may come before the Reno
City Council as long as [Nevada Foreign Trade Services] is involved with the
Airport Authority. Once the
relationship between NFTS and the Airport Authority ceases [i.e. expiration of
the contract], so will Mr. Griffin’s obligation to disclose and abstain
regarding Airport Authority matters.” (Emphasis added.) Given the
foregoing analysis, even though Mr. Dehné concluded that Opinion 97-48 broadly
covers all aspects of Mr. Griffin’s dealings with the Airport, this Commission
does not and cannot reach the same conclusion.
Mr.
Dehné violated NRS 281.525(l) and
281.551(2). Mr. Dehné’s claim that Mr. Griffin violated Opinion 97-48 was
false. Further, Mr. Dehné’s
blatant attempt to induce the Commission to revisit the airport contract issue
by alleging unsupported and improbable allegations smacks of harassment and an
attempt to vex Mr. Griffin. Mr.
Dehné would like the Commission to conclude that Mr. Griffin’s participation
in discussion with the American Airlines officials at a meeting in Dallas was a
cover up for the real purpose: to meet with Ms. Bart regarding the cargo
expansion project at the Reno/Tahoe airport. He wants this Commission to
disregard the facts before it; that Mr. Griffin, acting in his capacity as
Mayor, attended the meeting in order to encourage American Airlines executives
to keep Reno Air services at the airport. American
Airlines’ withdrawal of Reno Air services at the airport would have a
devastating effect on the area’s economy. Mr. Dehné did not provide any
evidence, except hearsay testimony and, at best, circumstantial evidence.
Unfortunately for Mr. Dehné, there is ample evidence to disprove his
outlandish claims. Ms. Bart began
her tenure at the airport shortly before she met Mr. Griffin.
She did not meet or talk with him until they met in Dallas.
They did not travel together as Mr. Dehné alleges, nor did Ms. Bart seek
Mr. Griffin’s input before making the fiscally-based decision to use the land
for air cargo rather than the Nevada Air Guard.
In fact there was no evidence presented to suggest that Ms. Bart’s
decision and implementation of cargo operations occurred any other way than the
way she testified. The Dallas
meeting was not covert nor was there an attempt to hide it from the public as
Mr. Dehné implied.
NRS
281.551(10) provides guidance for this Commission’s determination as to
whether a given opinion request was submitted in violation of NRS 281.551(2),
and it provides:
In
determining for the purposes for this section whether a person
submitted
an accusation or information in bad faith or with a vexatious purpose, the
commission may consider various factors, including, without limitation:
(a)
When the accusation or information was filed with or provided to the
commission;
(b)
Whether and, if applicable, in what manner the person who submitted the
accusation or information publicly disseminated the accusation or information
before the commission determined whether there was just and sufficient cause to
render an opinion in the matter;
(c)
Whether the accusation or information sets forth alleged facts or details
that are misleading or deceptive; and
(d)
Whether the accusation or information or the conduct of the person who
submitted the accusation or information:
(1)
Would be perceived as annoying or harassing by a reasonable person; or
(2)
Demonstrates conscious disregard for the process and procedures established by
the commission.
Utilizing
the factors in NRS 281.551(10), we find that Mr. Dehné’s opinion requests
were submitted “in bad faith or with a vexatious purpose” for several
reasons. First, it is public
knowledge of which this Commission is well aware that there is a long-standing
enmity between Mr. Dehné and Mr. Griffin that was amplified by several of Mr.
Dehné’s offerings of scathing public comment or testimony at hearings on
unfounded opinion requests against Mr. Griffin which were filed by Mr. Dehné
and others.
Second,
Mr. Dehné set out the facts and circumstances of his opinion requests in a
deliberately misleading and deceptive manner. Mr. Dehné’s opinion requests
made it appear that Ms. Bart’s decision on the cargo matter was made
immediately after her return from the trip by the statement, “almost
immediately following that trip, executive director changed course 180 degrees
and canceled the long-planned movement of the Nevada Air Guard to Rewana
Farms” and “airport executive director is suddenly plowing full-steam ahead
to place cargo operations on the ill-gotten land. This sudden change in
direction came right after the executive director and the mayor were together on
that trip to Texas.” In fact, the
Dallas trip occurred in December 1998 and the decision to expand air cargo
operations at the airport was made in March 1999.
Three months had passed between the two events.
Further, Mr. Dehné attempted to continue the deception at the just and
sufficient cause hearing by testifying that the trip occurred in “early March
1999” and that “within days” of Mr. Griffin's and Ms. Bart’s return from
Dallas the plan to move the air guard was cancelled.
It is the fact that Mr. Dehné did not attempt to ascertain the truth of
his allegations prior to filing his opinion requests that is egregious to this
Commission. His opinion requests
and testimony were deliberately inflammatory and without basis in fact. The only conclusion this Commission can make is that Mr. Dehné
set out to deliberately mislead the Commission in order to induce them to render
a decision in his favor by enlarging the truth or by attempting deception.
Third,
Mr. Dehné submitted allegations which he knew he did not have evidentiary
support, and he admitted as much under questioning from this Commission.
He could not verify the date of the Dallas trip, yet he made claims that
the trip occurred immediately prior to Ms. Bart’s and the airport trustees’
decision to expand the air cargo operations at the airport.
He could not even verify that Ms. Bart and Mr. Griffin even discussed the
air cargo operations or that Ms. Bart sought Mr. Griffin’s input and approval.
Knowing there was no evidence and relying on hearsay, innuendo and
supposition, Mr. Dehné purposely chose to represent fiction as fact to this
Commission. NRS 281.511(2)(b)(1) requires that a person submitting a request to
the Commission also submit "all related evidence
deemed necessary by the commission for
it to make a preliminary determination of whether there is just and sufficient
cause to render an opinion in the matter.” (Emphasis added.) The Commission
repeatedly queried Mr. Dehné about the evidentiary support he had for his
statements that Mr. Griffin influenced Ms. Bart’s decision to use the land for
cargo operations or that Ms. Bart’s decision was influenced by anything other
than professionally or fiscally related issues.
Instead of answering these simple questions, Mr. Dehné dodged the
questions with more innuendo and supposition and attempted to shift the burden
for ascertaining his evidence onto the Commission.
Also, Mr. Dehné could not answer the Commission’s query as to where in
Opinion 97-48 it prohibits Mr. Griffin from contact with the airport
authorities. Mr. Dehné’s
response was, “It's just a conclusion of your conclusion."
Fourth,
Mr. Dehné’s attitude and demeanor at the hearing demonstrated “a conscious
disregard for the process and procedures established by the commission.”
NRS 281.551(10)(d)(2). Mr.
Dehné was openly defiant, argumentative and contemptuous of the Commission, and
the hostility and contempt manifested itself by his deliberate disregard of the
chairwoman's attempt to maintain order in the meeting.
At several points, Mr. Dehné was instructed to refrain from speaking
while the chairwoman, or others, had the floor.
His argumentative manner and blatant refusal to refrain from interrupting
resulted in his removal from the meeting.
Finally,
Mr. Dehné’s actions could only be “perceived as annoying or harassing by a
reasonable person.” NRS
281.555(10)(d)(1). Mr. Dehné’s
opinion requests were brought without substantiated evidence and were used in an
attempt to reopen an issue which had been already addressed by this Commission
which included the issue of Mr. Griffin’s dealings with the airport.
We find that a reasonable person being subjected to Mr. Dehné’s
unfounded filings would conclude that Mr. Dehné intended to annoy and harass
Mr. Griffin and Ms. Bart.
This
Commission will not be used as a weapon to further anyone's private aims.
We are not a forum for speculation, innuendo, rumor-peddling, or
vituperation. Any intentional
misuse of this Commission's process exposes the subjects of the requests to
undeserved public scrutiny and treats this Commission's salutary public mandate
with contempt.
We
conclude that Mr. Dehné made false statements to this Commission and that he
did so in bad faith and with the intent to vex Mr. Griffin and Ms. Bart.
Further, his disruptive attitude at the just and sufficient cause hearing
also displayed his contempt for this Commission.
Such a blatant misuse of this Commission's processes deserves and
necessitates an appropriately stiff sanction.
Consequently, this Commission imposes upon Mr. Dehné a civil penalty in
an assessment of $5,000 pursuant to NRS 281.551(2). Mr. Dehné
shall pay the penalty by cash or cashier’s check or money order made payable
to “State of Nevada, Office of the Treasurer,” to be received by the
Commission’s office no later than 5:00 p.m. P.S.T. on July 30, 1999.
Failure to pay the penalty shall result in such legal action as is
necessary to collect the penalty. Furthermore,
because Mr. Dehné’s violations are so obvious and so abusive of this
Commission’s purpose, a violation of NRS 281.525(l), this Commission will
refer this matter for criminal review and potential prosecution to the Washoe
County District Attorney pursuant to NRS 281.525(3).
Based
upon the foregoing and the substantial evidence in the record, the Commission
concludes that Mr. Dehné violated NRS 281.525(1) and 281.551(2) in this matter.
For this violation, the Commission imposes a civil penalty upon Mr. Dehné of
$5,000.00. Pursuant to NRS 281.525(3), the Commission will also inform the
Washoe County District Attorney of Mr. Dehné’s violation of NRS 281.525(1) so
that the District Attorney can determine whether to proceed against Mr. Dehné
under NRS 281.525(2) or other applicable criminal statutes.
DATED:
July 7, 1999
NEVADA
COMMISSION ON ETHICS