Referred to Committee on Elections, Procedures, and Ethics
SUMMARY--Makes various changes to provisions governing prohibited campaign practices. (BDR 24-1773)
FISCAL NOTE: Effect on Local Government: No.
Effect on the State or on Industrial Insurance: Yes.
EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.
AN ACT relating to elections; revising the manner of enforcing the prohibitions against making a false statement of fact concerning a candidate or a question on a ballot and willfully impeding the success of the campaign of a candidate or the campaign for the passage or defeat of a question on a ballot; prohibiting a person from knowingly assisting in the distribution of anonymous campaign material; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Chapter 294A of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 5, inclusive, of this act.
Sec. 2. 1. Except as otherwise provided in subsection 2, any person who knowingly assists in the distribution of anonymous material or information which violates the provisions of section 15 of Senate Bill No. 215 of this session is subject to a civil penalty of not more than $5,000 for each violation and payment of court costs and attorney's fees. A civil penalty must be recovered in a civil action brought in the name of the State of Nevada by the attorney general in a court of competent jurisdiction and deposited with the state treasurer for credit to the state general fund.
2. Any person who violates a provision of this section within 10 days before an election, including any recall or special election, is subject to a civil penalty of not more than $15,000 for each such violation and payment of court costs and attorney's fees. The civil penalty must be collected in the manner set forth in subsection 1.
3. As used in this section:
(a) "Anonymous material or information" means material or information that does not contain:
(1) The name and mailing or street address of each person who has paid for or who is responsible for paying for the distribution; and
(2) A statement that each such person has paid for or is responsible for paying for the distribution.
(b) "Knowingly assists in the distribution" includes, without limitation, authorizing another person to use the holder's permit for sending mail, assisting a person to send mail in bulk or providing a person with equipment to facilitate the dissemination of a false statement of fact. The term does not include the printing and dissemination of a newspaper article that reports objectively a story concerning anonymous material or information that may have been distributed in violation of the provisions of section 15 of Senate Bill No. 15 of this session.
Sec. 3. 1. Except as otherwise provided in this section and section 5 of this act, all investigations of the secretary of state conducted pursuant to subsection 2 of NRS 294A.410, as amended by section 8 of this act, must remain confidential until the secretary of state makes a determination pursuant to subsection 2 of NRS 294A.410, as amended by section 8 of this act, regardless of whether that determination results in a finding that a violation of section 15 or 16 of Senate Bill No. 215 of this session has occurred.
2. The confidentiality required pursuant to subsection 1 also applies to all information and materials, written or oral, received or developed by the secretary of state or his staff in the course of his work and relating to the alleged violation of section 15 or 16 of Senate Bill No. 215 of this session.
3. If the secretary of state determines that a violation has not occurred, he may, at the request of the person alleged to have violated section 15 or 16 of Senate Bill No. 215 of this session, publicly issue an explanatory statement.
4. The secretary of state may issue press releases and other public statements to explain:
(a) The nature of his jurisdiction;
(b) The procedure for notifying the secretary of state of an alleged violation of section 15 or 16 of Senate Bill No. 215 of this session; and
(c) Limitations upon his power or authority.
Such releases and statements must not, without the consent of any person alleged to have violated section 15 or 16 of Senate Bill No. 215 of this session, disclose, by name, address or other information, the identity of that person until the secretary of state has made a determination pursuant to subsection 2 of NRS 294A.410, as amended by section 8 of this act, regardless of whether that determination results in a finding that a violation of section 15 or 16 of Senate Bill No. 215 of this session has occurred.
5. In any investigation in which the subject matter becomes public through independent sources, or upon a determination by the secretary of state that a violation of section 15 or 16 of Senate Bill No. 215 of this session has occurred, the secretary of state may issue such statements as he deems appropriate under the circumstances to:
(a) Confirm the pendency of an investigation;
(b) State that the person alleged to have violated section 15 or 16 of Senate Bill No. 215 of this session denies the allegations; or
(c) Explain his reasons for determining that a violation of section 15 or 16 of Senate Bill No. 215 of this session has not occurred.
Sec. 4. Except as otherwise provided in section 5 of this act, any person who breaches the confidentiality required pursuant to subsection 1 of section 3 of this act is subject to punishment for contempt.
Sec. 5. Notwithstanding the provisions of sections 3 and 4 of this act, a person who has alleged that another person has violated section 15 or 16 of Senate Bill No. 215 of this session may:
1. At any time, reveal to a third party the conduct of the person alleged to have violated section 15 or 16 of Senate Bill No. 215 of this session that is the basis for the allegation.
2. After the secretary of state makes a determination pursuant to subsection 2 of NRS 294A.410, as amended by section 8 of this act, regardless of whether the determination results in the finding that a violation of section 15 or 16 of Senate Bill No. 215 of this session has occurred, reveal to a third party the fact that he notified the secretary of state of an alleged violation of section 15 or 16 of Senate Bill No. 215 of this session.
Sec. 6. Section 15 of Senate Bill No. 215 of this session is hereby amended to read as follows:
Sec. 15. 1. A person shall not, with actual malice and the intent to impede or further 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:
(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. The provisions of subsection 1 apply to a candidate who, with actual malice and the intent to further the success of his campaign, causes to be published false statements of fact concerning himself.
3. A person shall not, with actual malice and the intent to impede the success of a campaign for the passage or defeat of a question on the ballot at any election, including any recall or special election, cause to be published a false statement of fact concerning the question on the ballot.
4. Except as otherwise provided in subsection 5, any person who violates a provision of this section is subject to a civil penalty of not more than $10,000 for each violation and payment of court costs and attorney's fees. A civil penalty must be recovered in a civil action brought in the name of the State of Nevada by the attorney general in a court of competent jurisdiction and deposited with the state treasurer for credit to the state general fund.
5. Any person who violates the provisions of this section within 10 days before an election, including any recall or special election, is subject to a civil penalty of not more than $30,000 for each such violation and payment of court costs and attorney's fees. The civil penalty must be collected in the manner set forth in subsection 4.
6. The provisions of this section must not be construed to apply to the printing and disseminating of a newspaper article that reports objectively a story concerning a statement that may have been made in violation of this section or section 16 of Senate Bill No. 215 of this session.
7. 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.
Sec. 7. Section 16 of Senate Bill No. 215 of this session is hereby amended to read as follows:
Sec. 16. 1. A person shall not willfully, to impede the success of the campaign of a candidate, offer or give an item of value to:
(a) A person to induce him to obtain a position as an employee, agent or volunteer for that campaign and perform any act in the course of his employment, agency or volunteering to impede the success of that campaign; or
(b) An employee, agent or volunteer for that campaign to induce him to perform any act in the course of his employment, agency or volunteering to impede the success of that campaign.
2. A person shall not willfully, to impede the success of a campaign for the passage or defeat of a question on the ballot at any election, including any recall or special election, offer or give an item of value to:
(a) A person to induce him to obtain a position as an employee, agent or volunteer for that campaign and perform any act in the course of his employment, agency or volunteering to impede the success of that campaign; or
(b) An employee, agent or volunteer for that campaign to induce him to perform any act in the course of his employment, agency or volunteering to impede the success of that campaign.
3. Except as otherwise provided in subsection 4, any person who violates a provision of this section is subject to a civil penalty of not more than $10,000 for each violation and payment of court costs and attorney's fees. A civil penalty must be recovered in a civil action brought in the name of the State of Nevada by the attorney general in a court of competent jurisdiction and deposited with the state treasurer for credit to the state general fund.
4. Any person who violates a provision of this section within 10 days before an election, including any recall or special election, is subject to a civil penalty of not more than $30,000 for each such violation and payment of court costs and attorney's fees. The civil penalty must be collected in the manner set forth in subsection 3.
Sec. 8. Section 40 of Senate Bill No. 215 of this session is hereby amended to read as follows:
Sec. 40. NRS 294A.410 is hereby amended to read as follows:
294A.410
[If]
1. Except as otherwise provided in subsection 2, if it appears that the provisions of [NRS 294A.130 to 294A.180, inclusive, 294A.210, 294A.220, 294A.270, 294A.280 or 294A.360,] this chapter have been violated [:
1. The] , the secretary of state [shall report the alleged violation to the attorney general; and
2. A county or city clerk shall report the alleged violation to the appropriate district attorney,
and the attorney general or district attorney to whom the report is made shall cause] may:
(a) Conduct an investigation concerning the alleged violation and cause the appropriate proceedings to be instituted and prosecuted in the first judicial district court; or
(b) Refer the alleged violation to the attorney general. The attorney general shall investigate the alleged violation and institute the appropriate proceedings [to be instituted and prosecuted] in a court of competent jurisdiction without delay.
2. If it appears that any of the provisions of section 15 or 16 of Senate Bill No. 215 of this session have been violated, the secretary of state:
(a) Shall conduct an investigation concerning the alleged violation and, as expeditiously as possible, but not later than 10 days after becoming aware of the alleged violation, prepare and issue a determination of whether such a violation has occurred if sufficient evidence is presented to the secretary of state to make such a determination.
(b) May refer the alleged violation to the attorney general. If the attorney general determines that a violation has occurred, he shall institute the appropriate proceedings in a court of competent jurisdiction without delay.
3. A person who believes that any provision of this chapter has been violated may notify the secretary of state, in writing, of the alleged violation. The notice must be signed by the person alleging the violation and include any information in support of the alleged violation.
Sec. 9. Sections 41, 42, 43, 44, 45, 46 and 47 of Senate Bill No. 215 of this session are hereby repealed.
Sec. 10. This act becomes effective upon passage and approval.
TEXT OF REPEALED SECTIONS
Section 41 of Senate Bill No. 215 of this session:
Sec. 41. Chapter 281 of NRS is hereby amended by adding thereto a new section to read as follows:
1. If a request for an opinion is filed with the commission pursuant to section 15 or 16 of this act, the commission shall conduct a public hearing on the request. Except as otherwise provided in subsection 6, the hearing must be held as expeditiously as possible, but not later than 15 days after the receipt of the request for the opinion.
2. Such a request 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 section 15 of this act 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.
3. The commission shall immediately notify any person alleged to have violated section 15 or 16 of this act that such an opinion has been requested by the most expedient means possible. If notice is given orally by telephone or in any other manner, a second notice must be given in writing no later than the next calendar day by facsimile machine or overnight mail. The notice must include the time and place of the commission's hearing on the matter.
4. A person notified pursuant to subsection 3 shall submit a response to the commission no later than at the close of business on the second business day following the receipt of the notice. The response must be accompanied by any evidence concerning the issues related to the request that the person has in his possession or may obtain without undue financial hardship. Except as otherwise provided in this subsection, if such evidence is not submitted within that time, the commission may:
(a) Draw any conclusions it deems appropriate from the failure of that person to submit the evidence and argument; and
(b) Prohibit that person from responding and presenting evidence at the hearing.
The provisions of this subsection do not prohibit the commission from allowing that person to respond and present evidence or arguments, or both, after the close of business on the second business day if the commission determines that consideration of such evidence or arguments is in the interest of justice.
5. Except as otherwise provided in subsection 4, the commission shall allow any person alleged to have violated section 15 or 16 of this act to:
(a) Be represented by counsel; and
(b) Hear the evidence presented to the commission and respond and present evidence on his own behalf.
6. At the request of:
(a) The person or group of persons that filed the request for the opinion pursuant to section 15 or 16 of this act; or
(b) The person alleged to have violated the provisions of section 15 or 16 of this act,
the commission may grant a continuance of a hearing held pursuant to the provisions of this section upon a showing of the existence of extraordinary circumstances that would prohibit the commission from rendering a fair and impartial opinion. A continuance may be granted for not more than 15 days. Not more than one continuance may be granted by the commission pursuant to this subsection.
7. The person or group of persons that filed the request for the opinion pursuant to section 15 or 16 of this act has the burden of proving the elements of the offense, including that a person alleged to have violated section 15 of this act 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.
8. The commission shall render its opinion, or decline to render an opinion, as expeditiously as possible, but not later than 3 days after the date of the hearing. If additional time is required to determine the state of mind or the intent of the person alleged to have violated the provisions of section 15 or 16 of this act or to determine the amount of any civil penalty that may be imposed pursuant to NRS 281.551, the commission may continue its jurisdiction to investigate those issues but shall render its opinion as to the truth or falsity of the statement made concerning the candidate or the ballot question or its opinion as to whether the person impeded the success of the campaign or induced another person to impede the success of the campaign. If the commission continues its jurisdiction pursuant to this subsection, it may render a final opinion after the time set forth in this subsection.
9. A final opinion of the commission rendered pursuant to this section is subject to judicial review pursuant to NRS 233B.130. The district court shall give a petition for judicial review of a final opinion of the commission priority over other civil matters that are not expressly given priority by law. Notwithstanding the provisions of NRS 233B.130, the court may provide for such expedited review of the final opinion, including shortened periods for filing documents, as it deems appropriate for the circumstances.
10. Each request for an opinion filed pursuant to section 15 or 16 of this act, each opinion rendered by the commission pursuant thereto and any motion, evidence or record of a hearing relating to the request are public and must be open to inspection pursuant to NRS 239.010.
11. For the purposes of NRS 41.032, the members of the commission and its employees shall be deemed to be exercising or performing a discretionary function or duty when taking any action related to the rendering of an opinion pursuant to this section.
12. Except as otherwise provided in this section, a meeting or hearing held by the commission to carry out the provisions of this section and the commission's deliberations on the information or evidence are not subject to any provision of chapter 241 of NRS.
Section 42 of Senate Bill No. 215 of this session:
Sec. 42. NRS 281.431 is hereby amended to read as follows:
281.431
As used in NRS 281.411 to 281.581, inclusive, and section 41 of this act, unless the context otherwise requires, the words and terms defined in NRS 281.432 to 281.4365, inclusive, have the meanings ascribed to them in those sections.
Section 43 of Senate Bill No. 215 of this session:
Sec. 43. NRS 281.461 is hereby amended to read as follows:
281.461 1. The commission shall:
(a) At its first meeting and annually thereafter elect a chairman and vice chairman from among its members.
(b) Meet regularly at least once in each calendar quarter, unless there are no requests made for an opinion pursuant to NRS 281.511 [,] or section 15 or 16 of this act, and at other times upon the call of the chairman.
2. Members of the commission are entitled to receive a salary of not more than $80 per day, as fixed by the commission, while engaged in the business of the commission.
3. While engaged in the business of the commission, each member and employee of the commission is entitled to receive the per diem allowance and travel expenses provided for state officers and employees generally.
4. The commission shall, within the limits of legislative appropriation, employ such persons as are necessary to carry out any of its duties relating to:
(a) The administration of its affairs;
(b) The review of statements of financial disclosure; and
(c) The investigation of matters under its jurisdiction.
5. The commission may, within the limits of legislative appropriation, maintain such facilities as are required to carry out its functions.
Section 44 of Senate Bill No. 215 of this session:
Sec. 44. NRS 281.465 is hereby amended to read as follows:
281.465
1. The commission has jurisdiction [for the purposes of investigating and taking] to investigate and take appropriate action regarding an alleged violation of [this] :
(a) This chapter by a public officer or employee or former public officer or employee in any proceeding commenced by:
[(a)] (1) The filing of a request for an opinion with the commission; or
[(b)] (2) A determination of the commission on its own motion that there is just and sufficient cause to render an opinion concerning the conduct of that public officer or employee or former public officer or employee.
(b) Section 15 or 16 of this act in any proceeding commenced by the filing of a request for an opinion pursuant thereto.
2. The provisions of [this section] paragraph (a) of subsection 1 apply to a public officer or employee who:
(a) Currently holds public office or is publicly employed at the commencement of proceedings against him.
(b) Resigns or otherwise leaves his public office or employment:
(1) After the commencement of proceedings against him; or
(2) Within 1 year after the alleged violation or reasonable discovery of the alleged violation.
Section 45 of Senate Bill No. 215 of this session:
Sec. 45. NRS 281.475 is hereby amended to read as follows:
281.475
1. The chairman and vice chairman of the commission may administer oaths.
2. The commission, upon majority vote, may issue a subpoena to compel the attendance of a witness and the production of books and papers. Before issuing such a subpoena, the commission shall submit a written request to the public officer or public employee who is the subject of an inquiry or opinion of the commission, or to the person or group of persons requesting an opinion pursuant to section 15 or 16 of this act, requesting:
(a) His appearance , or the appearance of a representative of the group, as a witness;
(b) The appearance as a witness of any other person who may have information relating to the inquiry or opinion; or
(c) The production of any books and papers.
Each such request must specify the time and place for the attendance of any witness or the production of any books and papers, and designate with certainty the books and papers requested, if any. If the public officer or other witness fails or refuses to attend or produce the books and papers requested by the commission, the commission may issue the subpoena.
3. If any witness refuses to attend, testify or produce any books and papers as required by the subpoena, the chairman of the commission may report to the district court by petition, setting forth that:
(a) Due notice has been given of the time and place of attendance of the witness or the production of the books and papers;
(b) The witness has been subpoenaed by the commission pursuant to this section; and
(c) The witness has failed or refused to attend or produce the books and papers required by the subpoena before the commission, or has refused to answer questions propounded to him, and asking for an order of the court compelling the witness to attend and testify or produce the books and papers before the commission.
4. [Upon] Except as otherwise provided in this subsection, upon such a petition, the court shall enter an order directing the witness to appear before the court at a time and place to be fixed by the court in its order, the time to be not more than 10 days after the date of the order, and then and there show cause why he has not attended, testified or produced the books or papers before the commission. If the witness has been subpoenaed by the commission in response to a request for an opinion filed pursuant to section 15 or 16 of this act, the court shall direct the witness to appear before the court as expeditiously as possible to allow the commission to render its opinion within the time required by section 41 of this act. A certified copy of the order must be served upon the witness.
5. If it appears to the court that the subpoena was regularly issued by the commission, the court shall enter an order that the witness appear before the commission, at the time and place fixed in the order, and testify or produce the required books and papers. Upon failure to obey the order the witness must be dealt with as for contempt of court.
Section 46 of Senate Bill No. 215 of this session:
Sec. 46. NRS 281.521 is hereby amended to read as follows:
281.521 1. The commission's opinions may include guidance to a public officer or employee on questions whether:
(a) A conflict exists between his personal interest and his official duty.
(b) His official duties involve the use of discretionary judgment whose exercise in the particular matter would have a significant effect upon the disposition of the matter.
(c) The conflict would materially affect the independence of the judgment of a reasonable person in his situation.
(d) He possesses special knowledge which is an indispensable asset of his public agency and is needed by it to reach a sound decision.
(e) It would be appropriate for him to withdraw or abstain from participation, disclose the nature of his conflicting personal interest or pursue some other designated course of action in the matter.
2. [The] Except as otherwise provided in sections 15, 16 and 41 of this act, the commission's opinions may not include guidance to a public officer or employee on questions regarding the provisions of chapter 294A of NRS.
Section 47 of Senate Bill No. 215 of this session:
Sec. 47. NRS 281.551 is hereby amended to read as follows:
281.551 1. In addition to any other penalty provided by law, the commission may impose on a public officer or employee or former public officer or employee civil penalties not to exceed $5,000 for a willful violation of this chapter.
2. In addition to any other penalty provided by law, the commission may impose a civil penalty not to exceed $5,000 on any person who knowingly or maliciously submits to the commission any false accusation or false information, or submits to the commission any false accusation or false information in bad faith or who, by fraud or artifice, prevents the discovery of a violation of this chapter.
3. In addition to any other penalty provided by law, the commission may impose a civil penalty not to exceed $5,000 on a person, other than the person about whom an opinion is requested, who:
(a) Participates in any activity relating to the request for the opinion;
(b) Is directed by the commission to comply with the requirements relating to confidentiality set forth in subsection 4 of NRS 281.511; and
(c) Subsequently violates those requirements.
4. If the commission finds that a violation of a provision of this chapter by a public officer or employee or former public officer or employee has resulted in the realization by another person of a financial benefit, the commission may, in addition to any other penalty, require the current or former public officer or employee to pay a civil penalty of not more than twice the amount so realized.
5. Except as otherwise provided in this subsection, and in addition to any other penalty provided by law, the commission may impose on any person who violates any provision of section 15 or 16 of this act a civil penalty not to exceed $10,000. If the commission finds that a violation of section 15 or 16 of this act occurred within 10 days before an election, including any recall or special election, the commission may impose on the person who committed such a violation a civil penalty not to exceed $30,000.
6. If the commission finds that a violation of this chapter has been committed by a public officer removable from office by impeachment only, it shall file a report with the appropriate person responsible for commencing impeachment proceedings as to its finding. The report must contain a statement of the facts alleged to constitute the violation.
[6.] 7. Any action taken by a public officer or employee or former public officer or employee relating to NRS 281.481, 281.491, 281.501 or 281.505 shall be deemed not to be a willful violation of any provision of those sections if the public officer or employee:
(a) Relied in good faith upon the advice of the legal counsel retained by the public body which the public officer represents or by the employer of the public employee;
(b) Was unable, through no fault of his own, to obtain an opinion from the commission before the action was taken; and
(c) The action taken was not contrary to any prior opinion issued by the commission to the public officer or employee.
[7.] 8. In addition to any other penalty provided by law, a public employee who willfully violates any provision of NRS 281.481, 281.491, 281.501 or 281.505 is subject to disciplinary proceedings by his employer and must be referred for action in accordance to the applicable provisions governing his employment.
[8.] 9. NRS 281.481 to 281.541, inclusive, do not abrogate or decrease the effect of any of the provisions of the Nevada Revised Statutes which define crimes or prescribe punishments with respect to the conduct of public officers or employees.
[9.] 10. The imposition of a civil penalty pursuant to subsections 1 to [4,] 5, inclusive, is a final decision for the purposes of judicial review.