Assembly Bill No. 130–Committee on Elections,
Procedures, and Ethics

February 4, 1999

____________

Referred to Committee on Elections, Procedures, and Ethics

 

SUMMARY—Repeals certain provisions related to campaigns. (BDR 24-857)

FISCAL NOTE: Effect on Local Government: No.

Effect on the State or on Industrial Insurance: No.

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).

 

AN ACT relating to elections; repealing the provision prohibiting a person from making a false statement of fact concerning a candidate or a question on a ballot under certain circumstances; repealing the provision prohibiting certain persons from willfully impeding the success of the campaign of a candidate or the campaign for the passage or defeat of a question on a ballot; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

1-1 Section 1. NRS 294A.410 is hereby amended to read as follows:

1-2 294A.410 1. [Except as otherwise provided in NRS 294A.345 and

1-3 294A.346, if] If it appears that the provisions of this chapter have been

1-4 violated, the secretary of state may:

1-5 (a) Conduct an investigation concerning the alleged violation and cause

1-6 the appropriate proceedings to be instituted and prosecuted in the first

1-7 judicial district court; or

1-8 (b) Refer the alleged violation to the attorney general. The attorney

1-9 general shall investigate the alleged violation and institute and prosecute

1-10 the appropriate proceedings in the first judicial district court without delay.

1-11 2. A person who believes that any provision of this chapter has been

1-12 violated may notify the secretary of state, in writing, of the alleged

1-13 violation. The notice must be signed by the person alleging the violation

1-14 and include any information in support of the alleged violation.

2-1 Sec. 2. NRS 281.461 is hereby amended to read as follows:

2-2 281.461 1. The commission shall:

2-3 (a) At its first meeting and annually thereafter elect a chairman and vice

2-4 chairman from among its members.

2-5 (b) Meet regularly at least once in each calendar quarter, unless there

2-6 are no requests made for an opinion pursuant to NRS 281.511, [294A.345

2-7 or 294A.346,] and at other times upon the call of the chairman.

2-8 2. Members of the commission are entitled to receive a salary of not

2-9 more than $80 per day, as fixed by the commission, while engaged in the

2-10 business of the commission.

2-11 3. While engaged in the business of the commission, each member and

2-12 employee of the commission is entitled to receive the per diem allowance

2-13 and travel expenses provided for state officers and employees generally.

2-14 4. The commission shall, within the limits of legislative appropriation,

2-15 employ such persons as are necessary to carry out any of its duties relating

2-16 to:

2-17 (a) The administration of its affairs;

2-18 (b) The review of statements of financial disclosure; and

2-19 (c) The investigation of matters under its jurisdiction.

2-20 5. The commission may, within the limits of legislative appropriation,

2-21 maintain such facilities as are required to carry out its functions.

2-22 Sec. 3. NRS 281.465 is hereby amended to read as follows:

2-23 281.465 1. The commission has jurisdiction to investigate and take

2-24 appropriate action regarding an alleged violation of [:

2-25 (a) This] this chapter by a public officer or employee or former public

2-26 officer or employee in any proceeding commenced by:

2-27 [(1)] (a) The filing of a request for an opinion with the commission;

2-28 or

2-29 [(2)] (b) A determination of the commission on its own motion that

2-30 there is just and sufficient cause to render an opinion concerning the

2-31 conduct of that public officer or employee or former public officer or

2-32 employee.

2-33 [(b) NRS 294A.345 or 294A.346 in any proceeding commenced by the

2-34 filing of a request for an opinion pursuant thereto.]

2-35 2. The provisions [of paragraph (a)] of subsection 1 apply to a public

2-36 officer or employee who:

2-37 (a) Currently holds public office or is publicly employed at the

2-38 commencement of proceedings against him.

2-39 (b) Resigns or otherwise leaves his public office or employment:

2-40 (1) After the commencement of proceedings against him; or

2-41 (2) Within 1 year after the alleged violation or reasonable discovery

2-42 of the alleged violation.

3-1 Sec. 4. NRS 281.475 is hereby amended to read as follows:

3-2 281.475 1. The chairman and vice chairman of the commission may

3-3 administer oaths.

3-4 2. The commission, upon majority vote, may issue a subpoena to

3-5 compel the attendance of a witness and the production of books and

3-6 papers. Before issuing such a subpoena, the commission shall submit a

3-7 written request to the public officer or public employee who is the subject

3-8 of an inquiry or opinion of the commission, [or to the person or group of

3-9 persons requesting an opinion pursuant to NRS 294A.345 or 294A.346,]

3-10 requesting:

3-11 (a) His appearance [, or the appearance of a representative of the

3-12 group,] as a witness;

3-13 (b) The appearance as a witness of any other person who may have

3-14 information relating to the inquiry or opinion; or

3-15 (c) The production of any books and papers.

3-16 Each such request must specify the time and place for the attendance of

3-17 any witness or the production of any books and papers, and designate with

3-18 certainty the books and papers requested, if any. If the public officer or

3-19 other witness fails or refuses to attend or produce the books and papers

3-20 requested by the commission, the commission may issue the subpoena.

3-21 3. If any witness refuses to attend, testify or produce any books and

3-22 papers as required by the subpoena, the chairman of the commission may

3-23 report to the district court by petition, setting forth that:

3-24 (a) Due notice has been given of the time and place of attendance of the

3-25 witness or the production of the books and papers;

3-26 (b) The witness has been subpoenaed by the commission pursuant to

3-27 this section; and

3-28 (c) The witness has failed or refused to attend or produce the books and

3-29 papers required by the subpoena before the commission, or has refused to

3-30 answer questions propounded to him, and asking for an order of the court

3-31 compelling the witness to attend and testify or produce the books and

3-32 papers before the commission.

3-33 4. [Except as otherwise provided in this subsection, upon] Upon such

3-34 a petition, the court shall enter an order directing the witness to appear

3-35 before the court at a time and place to be fixed by the court in its order, the

3-36 time to be not more than 10 days after the date of the order, and then and

3-37 there show cause why he has not attended, testified or produced the books

3-38 or papers before the commission. [If the witness has been subpoenaed by

3-39 the commission in response to a request for an opinion filed pursuant to

3-40 NRS 294A.345 or 294A.346, the court shall direct the witness to appear

3-41 before the court as expeditiously as possible to allow the commission to

3-42 render its opinion within the time required by NRS 281.477.] A certified

3-43 copy of the order must be served upon the witness.

4-1 5. If it appears to the court that the subpoena was regularly issued by

4-2 the commission, the court shall enter an order that the witness appear

4-3 before the commission, at the time and place fixed in the order, and testify

4-4 or produce the required books and papers. Upon failure to obey the order

4-5 the witness must be dealt with as for contempt of court.

4-6 Sec. 5. NRS 281.521 is hereby amended to read as follows:

4-7 281.521 1. The commission’s opinions may include guidance to a

4-8 public officer or employee on questions whether:

4-9 (a) A conflict exists between his personal interest and his official duty.

4-10 (b) His official duties involve the use of discretionary judgment whose

4-11 exercise in the particular matter would have a significant effect upon the

4-12 disposition of the matter.

4-13 (c) The conflict would materially affect the independence of the

4-14 judgment of a reasonable person in his situation.

4-15 (d) He possesses special knowledge which is an indispensable asset of

4-16 his public agency and is needed by it to reach a sound decision.

4-17 (e) It would be appropriate for him to withdraw or abstain from

4-18 participation, disclose the nature of his conflicting personal interest or

4-19 pursue some other designated course of action in the matter.

4-20 2. [Except as otherwise provided in NRS 281.477, 294A.345 and

4-21 294A.346, the] The commission’s opinions may not include guidance to a

4-22 public officer or employee on questions regarding the provisions of chapter

4-23 294A of NRS.

4-24 Sec. 6. NRS 281.551 is hereby amended to read as follows:

4-25 281.551 1. In addition to any other penalty provided by law, the

4-26 commission may impose on a public officer or employee or former public

4-27 officer or employee civil penalties not to exceed $5,000 for a willful

4-28 violation of this chapter.

4-29 2. In addition to other penalties provided by law, the commission may

4-30 impose a civil penalty not to exceed $5,000 and assess an amount equal to

4-31 the amount of attorney’s fees and costs actually and reasonably incurred by

4-32 the person about whom an opinion was requested pursuant to NRS

4-33 281.511, against a person who:

4-34 (a) Submits to the commission, in bad faith or with a vexatious purpose,

4-35 an accusation or information that is false;

4-36 (b) Submits to the commission, in connection with a request for an

4-37 opinion that the commission determines to be without merit, an accusation

4-38 or information that is false; or

4-39 (c) Prevents, interferes with or attempts to prevent or interfere with the

4-40 discovery or investigation of a violation of this chapter.

4-41 3. If the commission finds that a violation of a provision of this

4-42 chapter by a public officer or employee or former public officer or

4-43 employee has resulted in the realization by another person of a financial

5-1 benefit, the commission may, in addition to other penalties provided by

5-2 law, require the current or former public officer or employee to pay a civil

5-3 penalty of not more than twice the amount so realized.

5-4 4. [Except as otherwise provided in this subsection, and in addition to

5-5 any other penalty provided by law, the commission may impose on any

5-6 person who violates any provision of NRS 294A.345 or 294A.346 a civil

5-7 penalty not to exceed $10,000. If the commission finds that a violation of

5-8 NRS 294A.345 or 294A.346 occurred within 10 days before an election,

5-9 including any recall or special election, the commission may impose on the

5-10 person who committed such a violation a civil penalty not to exceed

5-11 $30,000.

5-12 5.] If the commission finds that a violation of this chapter has been

5-13 committed by a public officer removable from office by impeachment

5-14 only, it shall file a report with the appropriate person responsible for

5-15 commencing impeachment proceedings as to its finding. The report must

5-16 contain a statement of the facts alleged to constitute the violation.

5-17 [6.] 5. An action taken by a public officer or employee or former

5-18 public officer or employee relating to NRS 281.481, 281.491, 281.501 or

5-19 281.505 is not a willful violation of a provision of those sections if the

5-20 public officer or employee:

5-21 (a) Relied in good faith upon the advice of the legal counsel retained by

5-22 the public body which the public officer represents or by the employer of

5-23 the public employee;

5-24 (b) Was unable, through no fault of his own, to obtain an opinion from

5-25 the commission before the action was taken; and

5-26 (c) Took action that was not contrary to a prior opinion issued by the

5-27 commission to the public officer or employee.

5-28 [7.] 6. In addition to other penalties provided by law, a public

5-29 employee who willfully violates a provision of NRS 281.481, 281.491,

5-30 281.501 or 281.505 is subject to disciplinary proceedings by his employer

5-31 and must be referred for action in accordance to the applicable provisions

5-32 governing his employment.

5-33 [8.] 7. NRS 281.481 to 281.541, inclusive, do not abrogate or decrease

5-34 the effect of the provisions of the Nevada Revised Statutes which define

5-35 crimes or prescribe punishments with respect to the conduct of public

5-36 officers or employees.

5-37 [9.] 8. The imposition of a civil penalty pursuant to [subsections 1 to

5-38 4, inclusive,] subsection 1, 2 or 3 is a final decision for the purposes of

5-39 judicial review.

5-40 [10.] 9. In determining for the purposes of this section whether a

5-41 person submitted an accusation or information in bad faith or with a

5-42 vexatious purpose, the commission may consider various factors,

5-43 including, without limitation:

6-1 (a) When the accusation or information was filed with or provided to

6-2 the commission;

6-3 (b) Whether and, if applicable, in what manner the person who

6-4 submitted the accusation or information publicly disseminated the

6-5 accusation or information before the commission determined whether there

6-6 was just and sufficient cause to render an opinion in the matter;

6-7 (c) Whether the accusation or information sets forth alleged facts or

6-8 details that are misleading or deceptive; and

6-9 (d) Whether the accusation or information or the conduct of the person

6-10 who submitted the accusation or information:

6-11 (1) Would be perceived as annoying or harassing by a reasonable

6-12 person; or

6-13 (2) Demonstrates conscious disregard for the process and procedures

6-14 established by the commission.

6-15 Sec. 7. NRS 281.477, 294A.345 and 294A.346 are hereby repealed.

6-16 Sec. 8. The amendatory provisions of this act do not apply to conduct

6-17 that occurred before July 1, 1999, or to the jurisdiction, duties, powers or

6-18 proceedings of the commission on ethics relating to such conduct.

6-19 Sec. 9. This act becomes effective on July 1, 1999.

 

6-20 TEXT OF REPEALED SECTIONS

 

6-21 281.477 Public hearing on request for opinion as to whether

6-22 person committed act to impede success of political campaign:

6-23 Request; notice; response; continuance; actions of commission;

6-24 judicial review of final opinion.

6-25 1. If a request for an opinion is filed with the commission pursuant to

6-26 NRS 294A.345 or 294A.346, the commission shall conduct a public

6-27 hearing on the request. Except as otherwise provided in subsection 6, the

6-28 hearing must be held as expeditiously as possible, but not later than 15

6-29 days after the receipt of the request for the opinion.

6-30 2. Such a request must be accompanied by all evidence and arguments

6-31 to be offered by the requester concerning the issues related to the request.

6-32 Except as otherwise provided in this subsection, if such evidence and

6-33 arguments are not submitted with the request, the commission may:

6-34 (a) Draw any conclusions it deems appropriate from the failure of the

6-35 person or group of persons requesting the opinion to submit the evidence

6-36 and arguments, other than a conclusion that a person alleged to have

6-37 violated NRS 294A.345 acted with actual malice; and

6-38 (b) Decline to render an opinion.

7-1 The provisions of this subsection do not prohibit the commission from

7-2 considering evidence or arguments presented by the requester after

7-3 submission of the request for an opinion if the commission determines that

7-4 consideration of such evidence or arguments is in the interest of justice.

7-5 3. The commission shall immediately notify any person alleged to

7-6 have violated NRS 294A.345 or 294A.346 that such an opinion has been

7-7 requested by the most expedient means possible. If notice is given orally

7-8 by telephone or in any other manner, a second notice must be given in

7-9 writing no later than the next calendar day by facsimile machine or

7-10 overnight mail. The notice must include the time and place of the

7-11 commission’s hearing on the matter.

7-12 4. A person notified pursuant to subsection 3 shall submit a response

7-13 to the commission no later than at the close of business on the second

7-14 business day following the receipt of the notice. The response must be

7-15 accompanied by any evidence concerning the issues related to the request

7-16 that the person has in his possession or may obtain without undue financial

7-17 hardship. Except as otherwise provided in this subsection, if such evidence

7-18 is not submitted within that time, the commission may:

7-19 (a) Draw any conclusions it deems appropriate from the failure of that

7-20 person to submit the evidence and argument; and

7-21 (b) Prohibit that person from responding and presenting evidence at the

7-22 hearing.

7-23 The provisions of this subsection do not prohibit the commission from

7-24 allowing that person to respond and present evidence or arguments, or

7-25 both, after the close of business on the second business day if the

7-26 commission determines that consideration of such evidence or arguments

7-27 is in the interest of justice.

7-28 5. Except as otherwise provided in subsection 4, the commission shall

7-29 allow any person alleged to have violated NRS 294A.345 or 294A.346 to:

7-30 (a) Be represented by counsel; and

7-31 (b) Hear the evidence presented to the commission and respond and

7-32 present evidence on his own behalf.

7-33 6. At the request of:

7-34 (a) The person or group of persons that filed the request for the opinion

7-35 pursuant to NRS 294A.345 or 294A.346; or

7-36 (b) The person alleged to have violated the provisions of NRS

7-37 294A.345 or 294A.346,

7-38 the commission may grant a continuance of a hearing held pursuant to the

7-39 provisions of this section upon a showing of the existence of extraordinary

7-40 circumstances that would prohibit the commission from rendering a fair

7-41 and impartial opinion. A continuance may be granted for not more than 15

7-42 days. Not more than one continuance may be granted by the commission

7-43 pursuant to this subsection.

8-1 7. The person or group of persons that filed the request for the opinion

8-2 pursuant to NRS 294A.345 or 294A.346 has the burden of proving the

8-3 elements of the offense, including that a person alleged to have violated

8-4 NRS 294A.345 acted with actual malice. The existence of actual malice

8-5 may not be presumed. A final opinion of the commission rendered

8-6 pursuant to this section must be supported by clear and convincing

8-7 evidence.

8-8 8. The commission shall render its opinion, or decline to render an

8-9 opinion, as expeditiously as possible, but not later than 3 days after the

8-10 date of the hearing. If additional time is required to determine the state of

8-11 mind or the intent of the person alleged to have violated the provisions of

8-12 NRS 294A.345 or 294A.346 or to determine the amount of any civil

8-13 penalty that may be imposed pursuant to NRS 281.551, the commission

8-14 may continue its jurisdiction to investigate those issues but shall render its

8-15 opinion as to the truth or falsity of the statement made concerning the

8-16 candidate or the ballot question or its opinion as to whether the person

8-17 impeded the success of the campaign or induced another person to impede

8-18 the success of the campaign. If the commission continues its jurisdiction

8-19 pursuant to this subsection, it may render a final opinion after the time set

8-20 forth in this subsection.

8-21 9. A final opinion of the commission rendered pursuant to this section

8-22 is subject to judicial review pursuant to NRS 233B.130. The district court

8-23 shall give a petition for judicial review of a final opinion of the

8-24 commission priority over other civil matters that are not expressly given

8-25 priority by law. Notwithstanding the provisions of NRS 233B.130, the

8-26 court may provide for such expedited review of the final opinion,

8-27 including shortened periods for filing documents, as it deems appropriate

8-28 for the circumstances.

8-29 10. Each request for an opinion filed pursuant to NRS 294A.345 or

8-30 294A.346, each opinion rendered by the commission pursuant thereto and

8-31 any motion, evidence or record of a hearing relating to the request are

8-32 public and must be open to inspection pursuant to NRS 239.010.

8-33 11. For the purposes of NRS 41.032, the members of the commission

8-34 and its employees shall be deemed to be exercising or performing a

8-35 discretionary function or duty when taking any action related to the

8-36 rendering of an opinion pursuant to this section.

8-37 12. Except as otherwise provided in this section, a meeting or hearing

8-38 held by the commission to carry out the provisions of this section and the

8-39 commission’s deliberations on the information or evidence are not subject

8-40 to any provision of chapter 241 of NRS.

8-41 294A.345 Causing publication of certain false statements of fact

8-42 concerning candidate or ballot question during campaign prohibited;

8-43 civil penalty imposed by commission on ethics.

9-1 1. A person shall not, with actual malice and the intent to impede the

9-2 success of the campaign of a candidate, cause to be published a false

9-3 statement of fact concerning the candidate, including, without limitation,

9-4 statements concerning:

9-5 (a) The education or training of the candidate.

9-6 (b) The profession or occupation of the candidate.

9-7 (c) Whether the candidate committed, was indicted for committing or

9-8 was convicted of committing a felony or other crime involving moral

9-9 turpitude, dishonesty or corruption.

9-10 (d) Whether the candidate has received treatment for a mental illness.

9-11 (e) Whether the candidate was disciplined while serving in the military

9-12 or was dishonorably discharged from service in the military.

9-13 (f) Whether another person endorses or opposes the candidate.

9-14 (g) The record of voting of a candidate if he formerly served or

9-15 currently serves as a public officer.

9-16 2. A person shall not, with actual malice and the intent to impede the

9-17 success of a campaign for the passage or defeat of a question on the ballot

9-18 at any election, including any recall or special election, cause to be

9-19 published a false statement of fact concerning the question on the ballot.

9-20 3. Any candidate who alleges that a false statement of fact concerning

9-21 the candidate has been published in violation of subsection 1, and any

9-22 person or group of persons that advocates the passage or defeat of a

9-23 question on the ballot at any election, is required to file a report pursuant to

9-24 NRS 294A.150, and alleges that a false statement of fact has been

9-25 published in violation of subsection 2, may file a request for an opinion

9-26 with the commission on ethics pursuant to NRS 281.411 to 281.581,

9-27 inclusive, and NRS 281.477. The commission shall give priority to such a

9-28 request over all other matters pending with the commission.

9-29 4. A person who violates the provisions of this section is subject to a

9-30 civil penalty that may be imposed by the commission on ethics pursuant to

9-31 NRS 281.551.

9-32 5. As used in this section:

9-33 (a) "Actual malice" means knowledge of the falsity of a statement or

9-34 reckless disregard for whether a statement is true or false.

9-35 (b) "Publish" means the act of printing, posting, broadcasting, mailing,

9-36 speaking or otherwise disseminating.

9-37 294A.346 Impeding success or inducing another to impede success

9-38 of campaign of candidate or for ballot question prohibited; civil

9-39 penalty imposed by commission on ethics.

9-40 1. An employee, agent or volunteer of the campaign of a candidate

9-41 shall not willfully perform any act in the course of his employment, agency

9-42 or volunteering that impedes the success of that campaign.

10-1 2. A person shall not willfully, to impede the success of the campaign

10-2 of a candidate, offer or give an item of value to:

10-3 (a) A person to induce him to obtain a position as an employee, agent or

10-4 volunteer for that campaign and perform any act in the course of his

10-5 employment, agency or volunteering to impede the success of that

10-6 campaign; or

10-7 (b) An employee, agent or volunteer for that campaign to induce him to

10-8 perform any act in the course of his employment, agency or volunteering

10-9 to impede the success of that campaign.

10-10 3. An employee, agent or volunteer of a campaign for the passage or

10-11 defeat of a question on the ballot at any election, including any recall or

10-12 special election, shall not willfully perform any act in the course of his

10-13 employment, agency or volunteering that impedes the success of that

10-14 campaign.

10-15 4. A person shall not willfully, to impede the success of a campaign

10-16 for the passage or defeat of a question on the ballot at any election,

10-17 including any recall or special election, offer or give an item of value to:

10-18 (a) A person to induce him to obtain a position as an employee, agent or

10-19 volunteer for that campaign and perform any act in the course of his

10-20 employment, agency or volunteering to impede the success of that

10-21 campaign; or

10-22 (b) An employee, agent or volunteer for that campaign to induce him to

10-23 perform any act in the course of his employment, agency or volunteering

10-24 to impede the success of that campaign.

10-25 5. Any candidate who alleges that a person has violated the provisions

10-26 of subsection 1 or 2, and any person or group of persons that advocates the

10-27 passage or defeat of a question on the ballot at any election, is required to

10-28 file a report pursuant to NRS 294A.150, and alleges that a person has

10-29 violated the provisions of subsection 3 or 4, may file a request for an

10-30 opinion with the commission on ethics pursuant to NRS 281.411 to

10-31 281.581, inclusive, and 281.477. The commission shall give priority to

10-32 such a request over all matters pending with the commission.

10-33 6. A person who violates the provisions of this section is subject to a

10-34 civil penalty that may be imposed by the commission on ethics pursuant to

10-35 NRS 281.551.

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