IN THE MATTER OF THE REQUEST FOR OPINION CONCERNING
ALLEGATIONS THAT GENE McGILLIVRAY, Reporter, The Wendover Times,
IMPEDED THE SUCCESS OF THE CAMPAIGN OF
WAIT SANDERS, Candidate for the Office of Mayor of West Wendover, Nevada
This
Opinion is in response to requests for opinion filed pursuant to NRS 294A.345
and 281.477 with the Nevada Commission on Ethics (Commission) by Wait Sanders
against Gene McGillivray. Request
Nos. CP99-02 and CP99-03 were combined for purposes of hearing and adjudication.
A hearing on the opinion requests was held on May 27, 1999.
The Commission heard testimony from Mr. Sanders, Mr. McGillivray, John C.
Johnson, Jr., Josephine Thaut and Howard Copelan.
At the conclusion of the hearing the Commission publicly deliberated the
matter and rendered its decision. The
Commission now issues the Findings of Fact, Conclusions of Law and Opinion which
follows.
FINDINGS OF FACT
1.
Mr. Sanders is the incumbent and candidate for Mayor of West Wendover,
Nevada. Mr. McGillivray is the
candidate for same mayoral race. The general election is scheduled for June 8, 1 999.
2.
Mr. McGillivray is a reporter for The Wendover Times, a weekly
free publication. Randy Croasmun is
the publisher. The paper employs
three workers: Mr. Croasmun, his wife and Mr. McGillivray.
3.
In the April 2 through 9, 1999 issue of The Wendover Times, Mr.
McGillivray wrote an article entitled "Private Morals Do Affect Public
Policy" which contain many statements regarding Mr. Sanders, two of which
are as follows:
[E]stablishing
various businesses in order to cash checks without funds, (according
to the Secretary of State for Nevada he has had at least 20
"businesses").
and,
[C]ausing at least half a dozen lawsuits to be filed against him and the city.
4.
Mr. McGillivray testified that the number of businesses owned by Mr.
Sanders was verified by Paula Walther of the Nevada Department of Taxation. Ms.
Walther told him that
Mr. Sanders had over twenty businesses filed with the Secretary of State's
office. Because Ms. Walther had provided accurate information in the past, Mr.
McGillivray did not feel it necessary to contact the Secretary of State's office
directly.
5.
Mr. Sanders testified that he currently owns twelve businesses. These
companies have no subsidiaries.
6.
Mr. McGillivray testified that he contacted the judicial and municipal
courts to verify the number of complaints naming Mr. Sanders as a defendant.
7.
Mr. Sanders testified that he has been named in only four recent law
suits. Three have not been
resolved. The one resolved case names Mr. Sanders individually, not as Mayor.
8.
Mr. McGillivray testified that he wrote the article shortly before April
2, 1999. The paper was printed on
April 2, 1999 and ran through April 9, 1999 or until no more issues were left on
the newspaper stands. Any remaining issues left on the stands would have been
removed between 7:00 p.m. and 10:00 p.m. on April 10, 1999 and replaced with the
new issue.
9.
Mr. Sanders filed his bid for candidacy at 3:00 p.m. on April 9, 1999.
He had not officially announced that he would run for office prior to
April 9, 1999. He had not received
campaign contributions until after April 9, 1999.
10.
Mr. McGillivray decided to run for Mayor on April 8, 1999 and filed on
April 9, 1999 at 4:45 p.m. His
decision was motivated by another's failure to file for candidacy.
11.
Mr. McGillivray did not repeat the article or its contents in any
campaign literature.
12.
The April 23 through April 30, 1999 issue of The Wendover Times
included the following article written by Mr. Croasmun entitled "Who Got
What Award?":
Referring
to the glowing reports to cover an all expense paid trip to
Washington
D.C. for West Wendover Mayor Sanders and his entourage, for a week at taxpayers'
money, the following should be revealed to the public.
Sanders,
who had not received any award from a Jerusalem Fund raves on about how humble
he felt to be the recipient of it. Sanders did however, receive a letter from
someone who had nominated him for this "award."
Senator
Bryan and his press secretary David Lemmon are not aware of the Senator being
involved in any way shape or form. In
fact the press secretary stated that it was impossible for Sanders to have had a
photograph taken with the Senator the week prior to Sanders arriving in
Washington.
He
did state that Sanders had given them a copy of a letter in which someone had
nominated Sanders for a Israeli award.
So
begins the campaign.
13.
Mr. Sanders testified that the Washington, D.C. trip was authorized by
the West Wendover City Council in order to negotiate 14,000 acres of Air Force
property in West Wendover that was opposed by Tooele County, Utah.
The purpose of this trip was discussed at the West Wendover City Council
meeting on April 6, 1999. Mr. McGillivray attended that meeting.
On April 11, 1999, Mr. Sanders was accompanied on this trip by City
Manager Keyth Durham and Economic Development Coordinator Chris Melville.
They returned on April 16, 1999.
14.
On April 6, 1999, Mr. Sanders was notified of his nomination for the
Theodore Hertzel Award, an award presented by Israel's Prime Minister in
cooperation with the Jerusalem Mayor and the Jerusalem Fund of Aish HaTorah.
While he had not officially received the award, Mr. Sanders claims that
it was general knowledge that there was only one nominee and the nominee was the
recipient. The award is to be given
in August 1999.
15.
Mr. Sanders and company arrived in Washington, D.C. on April 11, 1999.
Mr. Sanders received the invitation to the Israeli embassy on April 13,
1999 and visited the embassy on April 15, 1999.
16.
Shortly before the April 11, 1999 trip, the High Desert Advocate
published a generic file photo of Senator Bryan with Mayor Sanders with a story
announcing that Mayor Sanders had been nominated for the award.
At no time did the Mayor claim he had his picture taken with the Senator
the week prior to their trip to Washington, D.C.
17.
Mr. McGillivray testified that while the April 23 through 30 issue of The
West Wendover Times article was written by Mr. Croasmun, Mr. McGillivray
provided investigatory material to Mr. Croasmun.
His investigation consisted of calling Senator Bryan's office and
verifying that Mr. Sanders had not visited his office.
This investigation was requested by Mr. Croasmun and was initiated by the
photograph published in the High Desert Advocate.
Mr. McGillivray stated that the photograph looked suspicious, as if it
had been altered, and the term "file photo" was not indicated on the
photograph.
The
Commission has jurisdiction over these matters 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 these matters is NRS 294A.345(l)(b), which provides:
1. A person shall not, with actual malice and the intent to impede 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. (Emphasis added.)
According
to NRS 281.477(7), the person who makes the request (in this case Mr. Sanders)
bears the burden of proving the elements of the offense under NRS 294A.345 by
clear and convincing evidence.
The
Commission concluded that Mr. Sanders did not meet his high burden of
proof against Mr. McGillivray.
Regarding
the April 23 through April 30, 1999 publication of The Wendover Times,
the evidence established that while Mr. McGillivray provided the information for
the article, he did not write the article nor cause the writer to form an
implication that Mr. Sanders mislead the citizens of West Wendover by traveling
to Washington, D.C. for his own personal business. Mr. McGillivray stated that he had given Mr. Croasmun,
publisher of the paper and writer of the article, all of the information he had
gathered, including the primary purpose for the trip.
Taken at face value, the article expressed factual truths that a) Mr.
Sanders traveled to Washington, D.C. with an "entourage" at tax payers
expense, b) he had not received an award from the Jerusalem Fund, even though he
claimed he had and c) he did not meet with Senator Bryan. Unfortunately, Mr.
Croasmun chose to ignore the real purpose of the trip in his article and gave it
a misleading slant. Mr. Sanders did
not travel for personal reasons, but in his official capacity as Mayor in an
attempt to negotiate 14,000 acres of Air Force property in West Wendover.
Despite the fact that a reader would come to an incorrect conclusion
regarding the Washington, D.C. visit, there is no evidence that Mr. McGillivray
encouraged or coerced Mr. Croasmun to write the article as he had.
The
April 2 through April 9, 1999 article required closer inspection.
There was a jurisdictional question as to whether Mr. Sanders or Mr.
McGillivray were candidates at the time the article was published.
The Commission reviewed and applied the statutes defining
"candidate" and "publish" in order to assist in its
determination.
NRS
294A.005 defines "candidate" as any person:
1.
Who files a declaration or affidavit of candidacy;
2.
Who files an acceptance of candidacy;
3.
Whose name appears on an official ballot at any election; or 4. Who has received
contributions in excess of $1 00.
NRS
294A.345(5)(b) defines "publish" as:
[T]he
act of printing, posting, broadcasting, mailing, speaking or otherwise
disseminating.
The
testimonial evidence revealed that Mr. McGillivray was not a
"candidate" at the time that he wrote the April 2, 1999 piece, nor did
he intend to run for mayor at that time. Further,
Mr. Sanders had not officially announced his bid for re-election prior to April
9, 1999. The question remains as to whether, by virtue of a weekly publication,
the article was considered disseminated on April 9, 1999, the date that both
gentlemen filed as candidates.
Mr.
McGillivray wrote the article on or before April 1, 1999. The article was
printed in The Wendover Times on April 2, 1999 to remain on the newspaper stands
until between 7:00 p.m. to 10:00 p.m. on April 10, 1999 or until all the
newspapers had been removed by
consumers. No one could testify
whether any copies of the publication remained on the news stands on April 9,
1999.
Mr.
Sanders filed his candidacy for mayor on April 9, 1999 at 3:00 p.m. He
had not received any campaign contributions prior to April 9, 1999.
Mr.
McGillivray filed on April 9, 1999 at 4:45 p.m. He had no intention of running for mayor prior to April 8,
1999 or at the time he wrote the article. He
had not received any campaign contributions prior to April 9, 1999.
The
Commission reviewed the facts and determined that "disseminating", as
used in NRS 294A.345(5)(b) for the purposes of defining "publish", is
to be applied to the date that the April 2, through April 9, 1999 newspaper was
placed on the news stands. There is
no evidence that any issues of the paper remained on the stands when the
gentlemen filed their bids on April 9, 1999. Because
of the vagueness of whether the information was available for public consumption
on April 9, 1999, the Commission determined that dissemination occurred on April
2, 1999 for purposes of this opinion request.
Because
Mr. McGillivray and Mr. Sanders were not candidates at the time that the article
was disseminated, the Commission determined that the requirements for NRS
294A.345 were not satisfied. Therefore,
the Commission did not have jurisdiction to review this matter.
Based
upon the record, the Commission concluded that Mr. McGillivray did not violate
NRS 294A.345(l)(b) with regard to the April 2 through April 9, 1999 Wendover Times
article because he and Mr. Sanders did not meet the statutory requirement of
candidate at the time Mr. McGillivray's article was published.
With
regard to the April 23 through April 30, 1999 Wendover Times article, the
Commission concluded that since Mr. McGillivray did not author or influence the
author of the article to mislead the public or have any control over the
article's contents, he did not violate NRS 294A.345(l)(b).
Because
no violations were found, no sanctions were considered by the Commission.
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:
June 30, 1999.
NEVADA
COMMISSION ON ETHICS
By:
/s/ Mary E. Boetsch,
Chairwoman