Opinion No. 01-18CP
BEFORE THE NEVADA COMMISSION ON ETHICS
IN THE MATTER OF THE REQUEST FOR OPINION CONCERNING
ALLEGATIONS THAT HOWARD COPELAND and/or THE HIGH DESERT ADVOCATE
IMPEDED THE SUCCESS OF THE CAMPAIGN OF
JOEL W. MURPHY, Candidate for the Office of Mayor of West Wendover, Nevada
This
matter came before the Nevada Commission on Ethics (hereinafter the
“Commission”) for hearing by on May 17, 2001, pursuant to NRS 281.477, upon
a Request for Opinion submitted by Joel W. Murphy, a candidate for the office of
Mayor of West Wendover, Nevada, on May 4, 2001, alleging that the editorial
opinion published by Howard Copelan[1]
in the April 25, 2001, edition of the High
Desert Advocate, a West Wendover, Nevada, newspaper, contained false
statements of fact intended to impede the success of Mr. Murphy’s campaign, in
violation of NRS 294A.345.
Notice
of the hearing was property posted and served.
Mr. Murphy and Mr. Copelan appeared by telephone, and the Commission
heard sworn testimony from both.
The
Commission, after full consideration of the record in this matter, makes the
following Findings of Fact and Conclusions of Law.
1.
At the time of the events alleged in the complaint filed herein, Joel W.
Murphy was a candidate for the office of Mayor of West Wendover, Nevada.
2.
At the time of the events alleged in the complaint filed herein, Howard
Copelan was, and still is, owner and editor the High
Desert Advocate, a West Wendover, Nevada, newspaper.
3.
In the April 25, 2001, edition of the High
Desert Advocate, Mr. Copelan published the following editorial opinion:
As
our municipal election heats up, we are appalled at the tactics of mayoral
candidate Joel Murphy that if not slanderous border on unethical.
To
condemn Mayor Reese Melville for bringing bad publicity to the city for the
mayor’s choice of location for a private wedding reception when it was Murphy
himself who publicized it was a gratuitous cruelty that cannot be forgiven.
Incidentally the bar is closed the day of the reception.
Perhaps
Mayor Melville’s choice of locations was not as politically correct as it
could have been. But the reason why Reese has been such a good mayor and not
incidentally why Reese is a good man is because Reese could care less about
political correctness. He does what
is right because he believes it to be right and not how it looks.
The
fact that Reese is not running for re-election and that his reception was being
used only as a foil to stress Joel’s so-called family values platform makes
this whole affair disgusting. Never
once has Reese Melville publicly or to our knowledge privately attacked Joel
Murphy. If he ever did knowing
Reese as a man of honor we know that our mayor would not even consider attacking
Joel’s personal life no matter how tempting a target it may be.
But
Reese needs no defense, from us or anyone else.
This latest outrage is however another indication of the deficiencies in
Murphy’s character. Is being
Mayor so important that it justifies ruining a couple’s reception?
4.
Mr. Copelan’s editorial opinion was based upon an article in the April
20-27, 2001, Wendover Times newspaper, which read:
Mayor
to get married at Exotic Dance Club.
After
a week of television interviews, newspaper stories, and radio talk shows
centered around the discussion of brothels in West Wendover and city involvement
with sex businesses, one couldn’t expect anything more.
But there is. West Wendover
Mayor Reese Melville has sent out invitations to his wedding, which will be held
inside the American Bush Exotic Dance Club.
When? On the last day of
being mayor, he has selected Tuesday, July 3, at 7 p.m. for his wedding.
Since
Melville did not seek re-election, one of the three candidates running for
mayor, will be sworn-in as the new mayor on the same night around 7:15 p.m. at
the West Wendover City Council meeting.
Melville
has worked at the American Bush Club during his last year of office.
He was appointed to office 15 months ago after the former Mayor Walt
Sanders resigned.
Sanders
had endured 26 lawsuits, bounced 35 checks and took a trip to jail, all while in
office as mayor. After resigning,
Sanders took another trip to jail within 30 days.
Although all this may be embarrassing to the city, both men were named
“Man of the Year” by Howard Copelan’s Advocate newspaper.
Melville was selected by Copelan earlier this year and Sanders was picked
just two weeks before he went to jail.
Still,
most of the city’s council members say they like Melville, they respect him,
and they think Sanders did a lot for the newly formed city.
But since it is election time, the City may be in for a change.
Councilman
Joel Murphy has filed to run for mayor, saying the city doesn’t need any more
publicity like this.
Yesterday
Murphy said, “I really think this whole brothel issue shouldn’t have been
brought up. Most of us in the community knew it wouldn’t go anyway.
I was elected because people thought I stood for the same morals as them.
I’m their representative on the council.
If I have to stop and have the public vote on ridiculous issues such as
‘brothels in our community,’ it wastes time and energy.
I could understand if it was about taxes, schools or hospitals.
Those are the kind of things that you put on the ballot.”
Another
candidate who is running for mayor has also taken a firm stand.
Candidate Bob Fox says, “I’m dead set against any kind of sex
businesses in West Wendover. I
don’t think it’s right for anyone on the city council to be involved in sex
businesses while in office.”
Fox
could have also been referring to Councilwoman Lori Cook who has owned and
operated Hot Spot Video, which sells x-rated adult videos.
Cook, like Melville, was not involved in any adult business when she went
into office, but she has filed to run again.
The
upcoming election will be June 5th.
5.
In the April 11, 2001, edition of the High
Desert Advocate, Mr. Copelan published the following editorial opinion:
Losing
a Friend
It
is with a heavy heart we write this column about our friend City Councilman and
candidate for mayor Joel Murphy and it will probably cost us that friendship.
But
we are first and foremost newspapermen and it should be of little consideration
to our readers and advertisers how reporting news affects our personal lives.
The moment we censor ourselves because the news hurts our friends is the
moment we stop being a newspaper.
So
here goes, in recent conversations with Joel we have learned that he was a
bartender and bodyguard in a brothel in Carlin.
If we hadn’t been sitting down we could have been knocked over with a
feather. We have known Joel and his family for close to ten years.
He and his wife have worked for us on and off for close to seven years.
He gave the eulogy for our father and we endorsed him in his first run at
city council. Yet in all that time
even when he sought public office for the first time he never intimated any of
these details of his past.
Granted
all of this was a long time ago and we believe him when he maintains that he has
reformed. But our belief in his
reformation in no way annuls his past as though it did not happen.
Nor does it absolve him of his duty as seeker of public confidence to
inform the same public of his public past.
Yes
there are probably things in all our lives that are embarrassing and we are not
interested in delving into any candidate’s bedroom or report card for dirt.
But what one did in one’s adult life to make one’s living is quite a
different matter.
If
Joel ran on his more recent past as a minister and doer of good deeds to win
votes, he cannot and should not keep his more distant past a secret.
While
forgiveness of sins is a theological matter, a man’s or woman’s past sins
whether repented or not should be a factor in determining any candidate’s
fitness for office. Although this is Nevada in the 21st century there are still
certain things that a politician simply cannot have in his or her past.
More
than that as the prospective chief representative of the city Joel had the
almost sacred duty to reveal those details that could embarrass the city.
Confessing to being a generic sinner simply is not good enough and
therefore he failed.
We
at the Advocate also failed two years ago, when we took Joel at his word
that there was nothing in his past that would embarrass the city.
It was our duty to check him out regardless of our friendship and we
apologize to our readers.
1.
Joel W. Murphy is a candidate for public office as defined by NRS
294A.005.
2.
The Commission has jurisdiction to render an opinion in this matter
pursuant to NRS 281.477 and NRS 294A.345.
WHEREFORE, on
motion duly made, seconded, and approved by majority vote, the Commission
renders the following Opinion:
NRS
294A.345 provides:
1.
A person shall not, with actual malice and the intent to impede the
success of the campaign of a candidate, impede the success of the candidate by
causing 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.
(c)
Whether the candidate committed, was indicted for committing or was
convicted of committing a felony or other crime involving moral turpitude,
dishonesty or corruption.
(d)
Whether the candidate has received treatment for a mental illness.
(e)
Whether the candidate was disciplined while serving in the military or
was dishonorably discharged from service in the military.
(f)
Whether another person endorses or opposes the candidate.
(g)
The record of voting of a candidate if he formerly served or currently
serves as a public officer.
2.
Any candidate who alleges that a false statement of fact concerning the
candidate has been published in violation of subsection 1 may file a request for
an opinion with the commission on ethics pursuant to NRS 281.411 to 281.581,
inclusive. Such a request must be
filed with the commission not later than 10 days after the date on which the
false statement of fact is alleged to have been made. The commission shall give priority to such a request over all
other matters pending with the commission
3.
A person who violates the provisions of this section is subject to a
civil penalty that may be imposed by the commission on ethics pursuant to NRS
281.551.
4.
As used in this section:
(a)
“Actual malice” means knowledge of the falsity of a statement or
reckless disregard for whether a statement is true or false.
(b)
“Publish” means the act of printing, posting, broadcasting, mailing,
speaking or otherwise disseminating.
In pertinent part,
NRS 281.477 provides:
7.
The person or group of persons that filed the request for the opinion
pursuant to NRS 294A.345…has the burden of proving the elements of the
offense, including that a person alleged to have violated NRS 294A.345 acted
with actual malice. The existence
of actual malice may not be presumed. A
final opinion of the commission rendered pursuant to this section must be
supported by clear and convincing evidence.
In addition to the other requirements for issuing an opinion pursuant to
this subsection, the commission shall not render a final opinion determining
that a person has violated NRS 294A.345 unless the commission makes specific
findings that:
(a)
The person caused to be published a false statement of fact concerning a
candidate;
(b)
The person acted with actual malice in causing the false statement to be
published.
(c)
The person acted with the intent to impede the success of the campaign of
the candidate in causing the false statement to be published; and
(d)
The publication of the false statement did in fact impede the success of
the campaign of the candidate.
*****
13.
As used in this section:
(a)
“Actual malice” has the meaning ascribed to it in NRS 294A.345.
(b)
“Publish” has the meaning ascribed to it in NRS 294A.345.
Mr.
Murphy’s testimony and Mr. Copelan’s testimony concerning the basis for and
the truthfulness of the factual statements about Mr. Murphy provided in Mr.
Copelan’s April 25, 2001, editorial opinion directly contradicted each other.
However, even if any of those factual statements could be deemed to be
“false,” there was absolutely no testimony provided or evidence presented
that (a) Mr. Copelan acted with “actual malice” in publishing any statement
about Mr. Murphy in the editorial opinion, and
(b) that the publication did in fact impede Mr. Murphy's campaign.
Mr. Copelan’s published remarks about Mr. Murphy in response to the
article published in the April 20-27, 2001, Wendover Times was clearly labeled an “Opinion” and,
therefore, readers would know that the content was political commentary and the
opinion of the writer.
Mr.
Murphy failed to meet the burden of proof required by NRS 281.477, Subsection 7,
to find a violation of NRS 294A.345. No
clear and convincing evidence was presented on which the Commission could make
specific findings that Mr. Copelan (a) caused to be published a false statement
of fact concerning candidate Murphy prohibited by NRS 294A.345, and (b) acted
with actual malice in causing such a false statement to be published, and (c)
acted with the intent to impede the success of candidate Murphy’s campaign in
causing such a false statement to be published, and (d) actually impeded the
success of candidate Murphy’s campaign in causing such a false statement to be
published. Therefore, NRS 294A.345
was not violated when Mr. Copelan published his editorial opinion in the April
25, 2001, edition of the High Desert
Advocate.
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:
September 7, 2001.
NEVADA
COMMISSION ON ETHICS
By: TODD RUSSELL, Chairman