Opinion No. 99-42

BEFORE THE NEVADA COMMISSION ON ETHICS

IN THE MATTER OF THE REQUEST FOR OPINION concerning the conduct of MARK KINCAID

This matter came before a four-member quorum[1] of the Nevada Commission on Ethics (hereinafter “Commission”) for hearing on Thursday, March 23, 2000, on a third-party Request for Opinion submitted by Mr. Steve Bergstrom concerning the conduct of Mr. Mark Kincaid.  The Request for Opinion alleged that Mr. Kincaid violated the provisions of NRS 281.525(1) in connection with his testimony during the December 4, 1998, and January 15, 1999, hearings on Opinion Request No. 98-17.  NRS 281.525(1) makes it “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.”  In his Request for Opinion to the Commission, Mr. Bergstrom alleges that during the Commission’s December 4, 1998, and January 15, 1999, hearings, Mr. Kincaid testified falsely regarding when he first learned that Mr. Bergstrom had claimed to be a police officer and the date a bulk mailing of campaign flyers had been mailed from the post office to the general public.

Commission Chairman Peter Bernhard addressed preliminary procedural and disclosure matters and then, under the standards of the Commission’s Woodbury Opinion,[2] abstained from voting in this matter.  However, with no objection from either party or any other Commission member, Commission Chairman Bernhard moderated the hearing.

Notice of the hearing was properly served.  Mr. Bergstrom appeared in person and was sworn as a witness.  Mr. Kincaid was present with his attorney, Greg Gilbert of the law firm Kummer, Kaempfer, Bonner and Renshaw, and was sworn as a witness.

The Commission, after full consideration of testimony of Mr. Bergstrom and Mr. Kincaid, and the evidence received into the record (including an offer of proof from Mr. Bergstrom), makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1.     During the 1998 campaign season, Mr. Kincaid represented three (3) candidates as campaign manager, including Mr. Bergstrom's opponent, Mr. Brown.

2.     During the January 15, 1999, hearing before the Commission on Opinion Request No. 98-17, Mr. Kincaid answered “no, the mailer could not be stopped” in response to the question “Mr. Kincaid, are you telling me that if we go to the person who did your mailer, they're going to tell us you could not have stopped that mailer?” and “No, I already knew it was gone” in response to the next question, “Did you contact your people?”[3]

3.     At the time Mr. Kincaid made those statements, he reasonably believed, based upon his prior communication with Passkey Systems,[4] that the campaign flyers were mailed on October 28, 1998, and could not be stopped.

4.      During the December 4, 1998, hearing, Mr. Kincaid testified that he first saw Mr. Bergstrom's campaign flier in which he claims to be POST certified when he received it in the mail approximately 10 days prior to the election.[5]  During the January 15, 1999, hearing, Mr. Kincaid testified that he first obtained information verifying that Mr. Bergstrom had been a police officer on October 28, 1998.[6]

CONCLUSIONS OF LAW

1.      The Commission has jurisdiction to render an opinion in this matter pursuant to NRS 281.511, Subsection 2(b).

WHEREFORE, on motion duly made, seconded, and approved by majority vote of the quorum (3 ayes, 1 no, 1 abstention), the Commission renders the following Opinion:

OPINION

Mr. Bergstrom asks this Commission to find that Mr. Kincaid violated NRS 281.525, Subsection 1, by making false statements during his testimony at the December 4, 1998, and January 15, 1999, hearings before this Commission in Opinion Request 98-17.

NRS 281.525, Subsection 1, provides that 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.”

NRS 281.525 was adopted by the Nevada Legislature in 1985, before NRS Chapter 281 permitted third-party opinion requests to be filed with the Commission.  Its title refers only to advisory opinions (first-party opinion requests filed pursuant to NRS 281.511, Subsection 1).  Therefore, NRS 281.525 may not even apply to a third-party opinion request like this, and in any case, it does not establish a separate ethical violation for enforcement by the Commission.  Instead, NRS 281.525 speaks to enforcement by the Attorney General or district attorney as a criminal matter, and the Commission's only power thereunder is to refer a matter to the appropriate prosecuting authority.

The question before the Commission, therefore, is whether or not the Commission should refer the matter to the appropriate prosecuting authority, based on Mr. Kincaid's testimony before the Commission during the December 4, 1998, and January 15, 1999, hearings on Opinion Request No. 98-17. In other words, did Mr. Kincaid make statements that he knew or through the exercise of reasonable care should have known to be false, in order to induce the commission to render an opinion or to take any action related to the rendering of an opinion, in connection with Opinion Request No. 98-17?

The Commission does not find sufficient evidence to refer this matter to the prosecuting authority. Such evidence would include knowledge of falsity by Mr. Kincaid and an intent to induce the Commission to act, based on his misstatements.  Even accepting Mr. Bergstrom's offer of proof of testimony from a witness who was not present, and assuming that such testimony would have been that Mr. Kincaid had prior knowledge of Mr. Bergstrom's police experience, the Commission does not find that Mr. Kincaid's statements before this Commission at the December 4, 1998, and January 15, 1999, hearings were made with the requisite intent to support a criminal prosecution, i.e., statements which were "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." NRS 281.525.  The Commission, therefore, declines to refer the matter to the prosecuting authority pursuant to NRS 281.525.

NOTE: THE FOREGOING OPINION APPLIES ONLY TO THE SPECIFIC FACTS AND CIRCUMSTANCES DEFINED HEREIN.  FACTS AND CIRCUMSTANCES THAT 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.

DATED:  May 31, 2000.

NEVADA COMMISSION ON ETHICS

By:  /s/  PETER C. BERNHARD, Chairman