Ethics panel criticized after levying $10,000 fine

Like all political candidates, when North Las Vegas Constable Herb Brown and his campaign manager sat down to compose a flier last fall, they did it with the intent to help him get elected over his opponent.

The first-time Democratic candidate now faces a record $10,000 fine imposed by the state Ethics Commission for statements in the flier about Republican candidate Steve Bergstrom's lack of qualifications.

And that spells trouble for all future candidates, according to American Civil Liberties Union officials, who say Friday's ruling is unconstitutional because it violates free speech.

"We have a runaway commission that takes upon itself to decide what kind of campaign literature it likes and what kind it doesn't like," ACLU attorney Allen Lichtenstein said. "It uses the power that was granted to it to censure people. It's not surprising, but it is scary nonetheless."

The commission did not like a Brown flier that claimed he was "the only qualified candidate for North Las Vegas constable" and that Bergstrom had no education or training for the post.

Commissioners found the flier misleading by not stating that Bergstrom was a former police officer or that he had completed 400 hours of law-enforcement training. It also implied that police officer certified training was required for the position when it is not.

Brown testified that although he had learned of Bergstrom being a police officer in California prior to the mailing, he could not verify the claim.

Because the flier was mailed within 10 days of the Nov. 3 election, Brown could have been levied the maximum fine of $30,000, Commission Chairwoman Mary Boestch said.

Bergstrom also filed a complaint against Brown's campaign manager, Mark Kincaid. But the commission dismissed the charges, saying Kincaid, the author of the flier, was not informed that the accuracy of the ad was in question before it was mailed.

After the decision Bergstrom said that if he has the support of residents, he may pursue a recall. Brown's attorney, Frank Cremen, said he plans to appeal the decision.

Lichtenstein said the politically appointed body is attempting to control elections.

"It almost inevitably will end up doing so in a manner that is likely to favor some, but certainly will never ensure open and robust debate in front of the public. In short, this is unconstitutional."

The commission's decision regarding Brown's campaign literature attempting to impede his opponent is absurd, according to Lichtenstein.

"If you take that and apply it across the board, we would have utter nonsense," he said. "The electorate is there to say who they think is qualified. Politics in the United States is a bit rough and tumble, but it was designed that way."

Brown is not the first candidate to face fines from the Ethics Commission. District 4 Assemblyman Bob Beers held the prior record fine of $5,000, which the commission levied for a campaign flier that suggested his opponent was an arsonist.

Lichtenstein said rulings such as Friday's will scare off potential candidates. But Bergstrom said the reason potential candidates won't run for office is because they fear being lied about.

Peck said the ACLU will work with anyone who has been prosecuted by the commission to ensure the law is declared unconstitutional by the courts and to encourage the Legislature to repeal the law.

Brown has 30 days to appeal the decision, which the commission must issue in writing by Wednesday, to District Court.

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