Jumped the gun

Governor-elect James Gibbons was getting anxious as the minute hand inched closer to midnight. “Anytime, Dawn,” he said to his wife, trying to coax her to hurry into the living room of their home where he took the oath of office.

It was Dec. 31, about to become Jan. 1, when he started reciting the oath.

At the time, Gibbons said that his midnight oath-taking was done so he could immediately appoint a couple of officials with homeland security responsibilities.

“What I didn’t want to have was a 10-hour gap in their service or so that there was no leadership in those two very critical appointments.”

However, he waited several days to appoint a third such official—the director of information technology, whose sensitive computer operation keeps state government functioning.

In any event, there would have been no “10-hour gap” if Gibbons had not been sworn in at midnight. The Nevada Constitution provides for a seamless transition. It says that the outgoing governor’s term continues “until his successor shall qualify.” Guinn and his public safety appointees would have continued serving until Gibbons was sworn in at the normal ceremonies later in the day.

The midnight ceremony and Gibbons’ supposed reason for it perplexed a lot of people and set off a round of jokes about Bin Laden’s focus on the Silver State. One Las Vegas columnist wrote, “What the hell?” and observed, “Jim Gibbons is now governor of Nevada. You can tell because he immediately began scaring Nevada.”

Then on Gibbons’ fourth day in office, another motive for the midnight oath emerged.

In November, Gibbons’ predecessor Kenny Guinn reappointed Gaming Control Board chair Dennis Neilander and appointed Keith Munro to replace board member Bobby Siller after Siller’s term ended Dec. 31. On Jan. 4, Gibbons then also, and unnecessarily, reappointed Nielander but named board investigations administrator Randy Sayre to replace Siller.

Supposedly, Siller’s seat became vacant at midnight, and because Gibbons took the oath at midnight, it prevented the Guinn appointment from filling the seat.

The appointment of Sayre suggested that Gibbons’ previously stated reason for secretly taking the oath of office at midnight on Jan. 1—that he needed to protect the state with the appointment of new homeland security officials—was actually intended to strengthen his hand in invalidating Guinn’s appointment of Munro. If Gibbons actually could be governor exactly at midnight, it would supposedly prevent Guinn from continuing to serve into the new term and thus invalidate Guinn’s appointment of Munro (which took effect on Jan. 1).

As KOLO’s Ed Pearce reported sardonically, “But then came the news that the new governor might undo a late, high-profile appointment made by Governor Guinn. Ah hah! Suddenly a light bulb lit over some of those heads out in the partisan blogosphere and in some of the more conventional media outlets.”

As it happened, Gibbons’ midnight oath contrivance failed—according to those present, the oath was not completed at midnight. At least 12 seconds passed after midnight before Gibbons completed the oath, opening a window through which Munro’s appointment could take effect.

How other governors did it
Although casino regulators serve fixed four-year terms to protect them from changes in administrations, governors have not always respected that process. But Gibbons’ attempt to appoint a gambling regulator to a post that was already filled is a break from the more direct practice of previous newly elected governors who sought to work their will on the state’s casino regulatory apparatus. Those governors simply asked gambling regulators to step down so they could fill the jobs with their own people.

After the 1982 election, governor-elect Richard Bryan asked Richard Bunker to step down as Gaming Control Board chair, and Bunker complied.

“I had indicated that I would like to appoint my own person, and he readily agreed to that,” Bryan said last week.

After the 1966 election, governor-elect Paul Laxalt publicly requested Nevada Gaming Commission chair Milton Keefer and commission member James Hotchkiss to step down. They weren’t wild about the idea—Laxalt had attacked them both during the campaign—but within weeks they both resigned.

Gibbons, however, engaged in more Byzantine maneuvers to try to make his own appointment. Before the midnight oath ploy, he had tried to convince the Nevada secretary of state’s office not to certify Guinn’s appointment of Munro.

Last week, Bryan said he saw nothing untoward in pressuring a control board chair, who was serving a fixed term, to resign.

“Well, it just seems to me that in a position like that, particularly the chairman, the governor has the right to have his own person in there. Clearly, the law provides for a fixed term, and there’s no obligation on the part of the incumbent board member to step down, but I tend to think on something like that, I think there would be probably a tendency among most governors—I can’t speak for all of them—to say, ‘Look, this is a key appointment, and I just feel more comfortable having my own person.’ Obviously, the person who’s been appointed by your predecessor is someone that your predecessor is very comfortable with as chairman. And I make that argument specifically with regard to the chairman.”

However, the whole purpose of the law is for governors not to have their “own” people in these sensitive posts, since the statute insulates appointees from political removal and regulators’ terms often overlap those of governors. But Bryan never asked the Nevada Legislature to change the law to make such appointments serve “at the pleasure of the governor,” which would have eliminated the awkward situations in which governors use private pressure and public disputes. He probably never asked for the change because it would also have made appointments more political.

Bryan said he distinguished between the board chair and other members and would not have tried to pressure other members of the board to step down. “I took the view that essentially the governor ought to have a hands-off policy with respect to the day-to-day operation, but I certainly wanted to be briefed, and was briefed, for example, when we intervened at the Stardust and other properties … during my term.”

But again, the law does not make the distinction Bryan does between chairpeople and other members of the board. Board chairs and board members enjoy the same protection from political interference.

Even if Gibbons had completed the oath exactly at midnight, the machination may have been futile in another sense. There is doubt that Gibbons was eligible to take the oath until after midnight. (It’s an issue that once faced Ronald Reagan in California. See sidebar, previous page). In that case, Gibbons spoke the first phrases of the oath before he was eligible to do so, raising the question of whether he actually took the oath. (Gibbons swore the oath twice more at later ceremonies.)

Gibbons’ credibility attacked
When the Sayre appointment became known, the midnight oath-taking ruptured the honeymoon period new governors enjoy and subjected Gibbons to scalding criticism for hiding behind homeland security.

The capital’s newspaper, the Nevada Appeal, ran an editorial headlined “Gibbons’ midnight inauguration based on a lie.”

Las Vegas Sun business columnist Jeff Simpson, who supports Gibbons’ effort to appoint his own regulator, nevertheless wrote, “Instead of openly challenging Guinn’s decision to make the picks and asserting his own right to fill the positions, Gibbons said the reason for taking the oath of office at midnight on New Year’s Day was to make sure the state was ready to deal with any emergency. In other words, he took the oath as soon as possible to fight terrorism. What a crock. Instead of the high ground, Gibbons and his staff chose the low, and treated Nevadans as fools.”

“Nobody wants to start an administration this way,” political analyst Fred Lokken said on Pearce’s political chat program.

Gibbons aide Brent Boynton said the governor was trying to get the best gambling regulators, “so he doesn’t mind taking a little heat and creating a little controversy.”

Gibbons denied that the Munro matter was his motive for the midnight oath, but that has not stopped him from using it as evidence for his claim that Guinn had no authority to make the appointment.

Gibbons’ insistence that the Munro appointment was invalid raises troubling questions about Guinn’s appointment under similar circumstances of Todd Russell as a district judge. If Gibbons’ reasoning about Munro is correct, then the sentences imposed and court orders issued by Russell would also be invalid. Defense lawyers may well be weighing the issue.

Most public counsel contacted doubted that Gibbons would be able to prevail in court if he attempted to enforce his appointment of Sayre, but Munro and Attorney General Catherine Cortez Masto took the governor off the hook on Jan. 11 when Munro resigned to become chief of staff in the attorney general’s office.

The awkwardness of the effort to displace Munro sparked comments that Gibbons was straying from the broad themes that governors—particularly new ones—usually try to emphasize leading up to their “state of the state” messages. By getting bogged down in administrative disputes that picked fights with his predecessor, experienced observers said Gibbons was getting off message.

“I think for the governor it’s an enormous distraction when he’s got so much ahead of him,” former governor Bryan said.

“He’s facing a legislative session. I’m assuming that any governor would rather that the focus be on that than on this [appointment dispute],” Pearce said.

Nor was the dispute over Munro the only fight Gibbons picked with Guinn actions and policy. Minutes after he took the oath for the third time at the public ceremony in front of the capitol building and made a short inaugural speech, Gibbons told reporters he was slashing Guinn’s education budget. And Assemblymember Bernie Anderson complained about Gibbons’ portraying a Guinn transportation initiative as a tax-hike issue.