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. Charles Hackleman, candidate for
re-election to the City Council of Mesquite, Nevada, on June 7, 2001.
Mr. Hackleman alleges that the Committee for Checks and Balances impeded
the success of his campaign in violation of NRS 294A.345 by a making false
statement of fact in a paid political advertisement that appeared in the Desert
Valley Times on May 31, 2001.
Notice
of the hearing was properly posted and served.
Mr. Hackleman appeared by telephone and presented sworn testimony.
Mr. Grant Lindsay appeared by telephone on behalf of the Committee for
Checks and Balances and 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.
Hackleman was a Mesquite City Councilman and a candidate for re-election.
He was appointed to fill a vacancy on the Mesquite City Council on
November 14, 2000.
2.
The Committee for Checks and Balances is a politically active citizens
group 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 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.”
5.
The Committee for Checks and Balances and Senior Citizens for Change
failed to proofread the ad and verify the accuracy of the statements in the ad
before having it published in the Desert Valley Times on May 31, 2001.
6.
In 1998, the members of the Mesquite City Council approved 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).
7.
The May 31, 2001, ad was published in the last edition of the weekly Desert
Valley Times before the June 5th election.
8.
Mr. Hackleman’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. Hackleman 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.
Mr.
Hackleman 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 when the members of the Mesquite City Council approved
an increase in the Mesquite mill levy for property taxes over the subsequent two
years Mr. Hackleman was not a member of the Mesquite City Council, 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. Hackleman
(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.
Hackleman 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.
Hackleman (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. Hackleman 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.[1]
Further, the Committee for Checks and Balances clearly published the ad
in an effort to obstruct Mr. Hackleman’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. Hackleman’s campaign in causing the false statement to be
published – was met. However, Mr.
Hackleman 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.
Mr. Hackleman’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.
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
By: TODD RUSSELL, Chairman
[1]
On behalf of the Committee for Checks and Balances, Mr. Lindsay offered to
write for Mr. Hackleman’s approval and publish in the Desert Valley
Times an apology to Mr. Hackleman for the publication of the false
statement of fact. Although the
Commission believes that a published apology would be very appropriate under
these circumstances, and the Commission appreciates the willingness of both
parties to work together in that respect, the Commission has no jurisdiction
to either recommend or enforce such action.