This
matter came before the Nevada Commission on Ethics (hereinafter the
“Commission”) for hearing on June 20, 2001, pursuant to NRS 281.477, upon a
Request for Opinion submitted by Mr. Cresent Hardy, candidate for re-election to
the City Council of Mesquite, Nevada, on June 4, 2001.
Mr. Hardy alleges that the Committee for Checks and Balances and Senior
Citizens for Change impeded the success of his campaign in violation of NRS
294A.345 by making false statements of fact in certain paid political
advertisements that appeared in the Desert Valley Times on May 24 &
31, 2001.
Notice
of the hearing was properly posted and served.
Mr. Hardy appeared by telephone and presented sworn testimony.
Mr. Grant Lindsay and Ms. Christine Strohl appeared by telephone on
behalf of the Committee for Checks and Balances and Mr. Al Campbell appeared by
telephone on behalf of Senior Citizens for Change. Mr. Lindsay, Ms. Strohl and Mr. Campbell presented sworn
testimony.
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, Mr. Hardy was an elected Mesquite
City Councilman and was a candidate for re-election.
2.
The Committee for
Checks and Balances and Senior Citizens for Change are politically active
citizens groups organized to provide to voters information on local candidates
and issues.
3.
The Desert Valley
Times is a local weekly newspaper published in Mesquite, Nevada.
4.
On May 24, 2001, a
half-page political advertisement was published in The Desert Valley Times.
The ad was written and paid for by Senior Citizens for Change.
The ad reads:
Is
It Leadership When…
Councilman
Hardy overrides
two of the mayor’s vetoes, and gives Messrs. Marren
and
Montgomery a raise? (Raises for two
already overpaid officials.)
Councilman
Hardy votes
to raise your taxes a 170%, because it is easier
than
raising the room tax for hotel tourists?
(Why
would he rather tax the homeowner instead of the tourists?)
Councilman
Hardy
believes that if you don’t like the politics in Mesquite,
you
can leave? (Is this why the
business owners are leaving?)
Councilman
Hardy
abstains 21% of the time because his business dealings conflict
with
his role as City Councilman. (Is he
working for you or someone else?)
GIVE
US A BREAK!!!
5.
On May 31, 2001, a
full-page political advertisement was published in the Desert Valley Times.
The ad was written and paid for by the Committee for Checks and Balances.
Included in the full-page ad is the statement “Hardy and Hackleman
raised your personal property taxes by 170% last year.”
6.
The Committee for
Checks and Balances and Senior Citizens for Change failed to proofread the ads
and verify the accuracy of the statements in the ad before having them published
in the Desert Valley Times on May 24 and 31, 2001.
7.
In 1998, as a Mesquite
City Councilman, Mr. Hardy voted to approve an increase in the Mesquite mill
levy for property taxes over the subsequent two years from .112 in 1998 to .152
in 1999 (a 35.7% increase) and from .152 to .302% in 2000 (a 98.7% increase).
8.
As a Mesquite City
Councilman, in 1998 Mr. Hardy abstained on 12 out of 522 agenda items (2.3%); in
1999 he abstained on 23 out of 524 agenda items (4.4%); in 2000 he abstained on
21 out of 462 agenda items (4.5%); and through May 2001 he abstained on 10 out
of 167 agenda items (6%). From
1998-May 2001, as a Mesquite City Councilman Mr. Hardy
abstained on a total of 66 of 1,675 agenda items (3.94%).
9.
The May 31, 2001, ad
was published in the last edition of the weekly Desert Valley Times before
the June 5th election.
10.
Mr. Hardy’s
political campaign was successful and he was re-elected to a seat on the City
Council of Mesquite.
1.
At all times relevant
to the allegations presented in his request for opinion, Mr. Cresent Hardy was 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 unanimously approved, 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:
2.
[A request for opinion filed with the Commission pursuant to NRS
294A.345] must be accompanied by all evidence and arguments to be offered by the
requester concerning the issues related to the request.
Except as otherwise provided in this subsection, if such evidence and
arguments are not submitted with the request the commission may:
(a)
Draw any conclusions it deems appropriate from the failure of the person
or group of persons requesting the opinion to submit the evidence and arguments,
other than a conclusion that a person alleged to have violated NRS 294A.345
acted with actual malice; and
(b)
Decline to render an opinion.
The
provisions of this subsection do not prohibit the commission from considering
evidence or arguments presented by the requester after submission of the request
for an opinion if the commission determines that consideration of such evidence
or arguments is in the interest of justice.
******
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.
A
request for opinion pursuant to NRS 294A.345 must be filed with the Commission
in proper form not later than ten (10) days after the date on which the false
statement of fact is alleged to have been made.
See, NRS 294A.345(2) and NAC 281.202.
The statute provides no exception to the 10-day requirement.
Further,
The
commission will consider only those complaints concerning campaign practices
which are submitted to the office of the commission in proper form.
A complaint concerning campaign practices must be filed with the
executive director at the office of the commission and be accompanied by
all evidence and argument to be offered by the requester concerning the issues
related to the complaint. NAC
281.202 (emphasis added).
The
request for opinion (campaign practices complaint) form in this matter was filed
with the Commission on Monday, June 4, 2001.
However, the evidence to be offered in connection with the request for
opinion was not filed with the Commission until the following day, Tuesday, June
5, 2001. The political
advertisements containing the alleged false statements were published on May 24
and May 31, 2001. Therefore,
although the Commission agrees, based upon the evidence, that the statement,
“Councilman Hardy abstains 21% of the time,” published in the May 24, 2001,
ad is a false statement, since the complaint concerning that alleged false
statements of fact was not timely filed pursuant to NRS 294A.345(2), the
Commission’s consideration herein is limited to the alleged false statement of
fact published by the Committee for Checks and Balances in its May 31, 2001,
political advertisement.
Mr.
Hardy alleges that the statement, “Hardy and Hackleman raised your personal
property taxes by 170% last year,” published by the Committee for Checks and
Balances in its May 31, 2001, political advertisement is false.
Since the evidence presented herein clearly and convincingly establishes
that in 1998, as a Mesquite City Councilman, Mr. Hardy voted to approve an
increase in the Mesquite mill levy for property taxes over the subsequent two
years from .112 in 1998 to .152 in 1999 (a 35.7% increase) and from .152 to
.302% in 2000 (a 98.7% increase), the Commission agrees that the published
statement is, indeed, false. However,
a published false statement of fact alone does not amount to a campaign
practices violation under NRS 294A.345. Rather,
for the Commission to find that the Committee for Checks and Balances has
violated NRS 294A.345 by publishing the false statement of fact, Mr. Hardy (the
candidate) must prove, by clear and convincing evidence, that the Committee for
Checks and Balances violated each element of NRS 294A.345 and, in doing so,
acted with “actual malice.” See,
NRS 281.477(7).
Mr.
Hardy met his burden of proving by clear and convincing evidence the first
element of NRS 294A.345 and NRS 281.477(7) – that the Committee for Checks and
Balances caused to be published a false statement of fact concerning Mr. Hardy
(the candidate). Also, based upon
Mr. Lindsay’s admission that the statement was not accurate and his testimony
that the Committee for Checks and Balances published the May 31, 2001, political
advertisement without proof reading the ad to verifying the truthfulness of the
statements in the ad, Mr. Hardy met his burden of proving by clear and
convincing evidence the second element of NRS 294A.345 and NRS 281.477(7) –
that the Committee for Checks and Balances acted with reckless disregard for
whether the published statement was true or false (and, therefore, acted with
“actual malice”) in publishing the false statement of fact.
Further, the Committee for Checks and Balances clearly published the ad
in an effort to obstruct Mr. Hardy’s re-election as a Mesquite City Councilman
and, therefore, the third element of NRS 294A.345 and NRS 281.477(7) – that
the Committee for Checks and Balances acted with the intent to impede the
success of Mr. Hardy’s campaign in causing the false statement to be published
– was met. However, Mr. Hardy
failed to meet his burden of proving by clear and convincing evidence the final
element of NRS 294A.345 and NRS 281.477(7) – that the publication of the false
statement did, in fact, impede the success of his campaign.
Even though the false statement of fact was published by the Committee
for Checks and Balances in the last edition of the weekly Desert Valley Times
before the June 5th election and Mr. Hardy had no opportunity in the media
to respond to or refute the false statements, Mr. Hardy’s campaign was
successful and he was re-elected on June 5th.
Therefore,
based solely on the lack of clear and convincing evidence to prove the fourth
element required by NRS 294A.345 and NRS 281.477(7), the Commission finds no
violation of NRS 294A.345 by the Committee for Checks and Balances.
Further, based on Mr. Hardy’s failure to cause his campaign practices
complaint to be timely filed pursuant to NRS 294A.345(2) and NAC 281.202, the
Commission finds no violation of NRS 294A.345 by Senior Citizens for Change.[1]
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 18, 2001.
NEVADA
COMMISSION ON ETHICS
[1]
Even if the complaint had been timely filed, as discussed above, Mr. Hardy
would still have failed to meet his burden of proving by clear and
convincing evidence the fourth element required by NRS 281.477(7) – that
the published false statement did, in fact, impede the success of his
campaign.