Citizen lawmakers

In Hawthorne, Mineral County District Attorney Leonard Blaisdell had a problem. An elementary-school maintenance man had run for the Legislature, been elected and then later reelected to a second term in the Nevada Assembly. During the most recent legislative session, the maintenance man had resigned his school job for as long as the session was going on. Then he had been rehired by the school district after the lawmakers went home for the year.

Blaisdell wanted to know if this arrangement was necessary. He sat down and wrote a letter to Nevada’s attorney general asking for advice: “Is it legal for a Board of Trustees of a school district to employ … an elected member of the Nevada State Legislature during the time the Nevada State Legislature is not actually in session?” It was April 18, 1955.

The question of public employees serving in the Nevada Legislature has arisen time and again over the years yet has never been litigated in Nevada. On Oct. 31, opponents of public employees launched an initiative petition campaign to amend the Nevada Constitution to ban public employees from serving in the state Legislature by forcing them to resign their jobs. Leaders of the drive claim the constitution already contains such a ban, but they have not gone to court to test that claim.

About a third of those surveyed by Carson City pollster Don Carlson said they think lawmakers should resign from day jobs as public employees before serving in the Legislature. Carlson asked 388 Nevadans, “Do you agree or disagree with the proposed petition that would require a public employee to resign his or her public position while serving in the Nevada Legislature?” About 35 percent strongly agreed; 25 percent somewhat agreed; 15 percent somewhat disagreed; and 15 percent strongly disagreed. However, a survey commissioned by the Las Vegas Review-Journal of 601 Nevadans indicated that 53 percent would vote against the initiative.

The group that filed the initiative petition, Nevadans for Sound Government, is the same group that tried to recall Gov. Kenny Guinn because of his tax program. The recall failed when the organization didn’t gather enough signatures. NSG also announced plans to recall state supreme court justices but dropped that plan. NSG is also circulating a referendum petition to repeal the new state tax plan. Signatures for a referendum can be gathered more easily than those for an initiative.

Although there have been no court cases, there have been a number of attorney general opinions issued over the years. Secretary of State Dean Heller has now asked Attorney General Brian Sandoval for another one.

The language at issue in the state constitution, at Article Three, Section One, says, “The powers of the Government of the State of Nevada shall be divided into three separate departments—the Legislative, the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases expressly directed or permitted.”

The issues are complicated by the differences between state and federal governments. The federal separation of powers is relatively simple—three branches of government with a separation of powers between them. But state governments have multiple branches with separations of power among them. There is a separation not just between the governor and Legislature, for instance, but between the governor and attorney general and between the state government and the university system. Moreover, the language in the state constitution applies only to state government. As a result, teachers and other employees of local-government jurisdictions are not state employees and thus are not covered by Article 3, Section 1.

The effort to ban public employees from the Nevada Legislature took on new life after this year’s legislative session, at which critics of taxes blamed public-employee/lawmakers for approval of a new tax structure for the state. According to the 2000 census, 123,587 Nevadans are public employees (this does not include the military) out of a workforce of 1,306,005. That’s about 9 percent.

Of the 63 members of the Nevada Legislature, 16 are public employees of various types. This number has led to confusion over who is a state worker. American Independent Party leader Joel Hansen, a supporter of the initiative petition, was quoted in one Las Vegas newspaper saying that the new tax program was “passed with the support of 15 legislators who were also state government employees.” However, some of these were actually local-government workers, including a firefighter, police officer and teacher.

Opinions from state attorneys general have been issued over the years on whether tax commissioners (1951), a director of a state executive department (1952), a deputy county tax assessor (1954) and state executive branch employees (1954 and 1956) can serve in the Legislature. In all these cases, the answer was no. A 1967 opinion held that Sparks Fire Chief Bill Farr had the right to serve in the Legislature. (Farr was elected to the Nevada Senate and served two terms.)

But, as for the cases that seem to disturb critics of state tax policies most—local school district employees (particularly teachers) serving in the Legislature—there are two competing opinions.

In response to D.A. Blaisdell’s 1955 request, Attorney General Harvey Dickerson, a Democrat, issued a short opinion saying that the arrangement under which the school maintenance man resigned his job during the legislative session was irrelevant: “An assemblyman is not only an assemblyman during the legislative session but also during his entire elective term of office.” Accordingly, Dickerson said, the maintenance man could not serve in the Legislature. Dickerson was issuing an opinion in the purest sense—it was entirely opinion with no references other than the Nevada constitutional language. No court cases were cited.

Sixteen years later, Republican Attorney General Robert List overruled the Dickerson opinion, calling it “contrary to the vast weight of authority.” At issue that year was the election of teachers to the Legislature. The most highly publicized case was that of Frances Hawkings, who was fired as a public-school teacher by the Mineral County School District when she took her seat in the Legislature. (She was fired not because of the separation of powers issue but because she took time off to serve as a lawmaker.)

List’s opinion, drafted by his deputy Julian Smith, cited court rulings in Colorado, Maryland, New Jersey and California on constitutional language similar to Nevada’s. It also cited a scholarly legal text. In all the cases, the rulings distinguished between state and local-government employees. The Maryland Supreme Court decision said flatly, “The constitutional requirement of separation of powers is not applicable to local government.”

Neither Dickerson’s nor List’s opinion addressed the issue of whether local employees such as maintenance men or teachers “exercise … powers properly belonging” to the governor or other executive branch officers, as the constitutional language describes it.

Heller’s decision to request Sandoval’s opinion was a surprise, partly because he has a good relationship with public employees and their representatives and partly because his office has no separation-of-powers issue before it. He says he got pulled into the case by a Nevada resident who first approached Sandoval’s office in Carson City to ask for an opinion on public employees serving in the Legislature. The resident was told that formal attorney general opinions can be issued only to public officers; he was advised to get someone to request the opinion on his behalf, and Heller’s name was suggested. The man then walked across Carson Street and asked Heller to make the request for him.

“A gentleman walked into my office off the street," Heller says, "[and] the only compelling reason I had was because a citizen asked for it." He says he did not limit his request to teachers but asked for a broad examination of the whole issue of public employees serving in the Legislature. He says he expects the opinion to be released shortly.