Newspaper column: Why separation of powers must be enforced in Nevada

Assembly Bill 121 is Exhibit A in the case for finally enforcing the state constitutional mandate for separation of powers, such that each branch of government may provide checks and balances to prevent the abuse that results when power is concentrated in too few hands.

The bill — introduced in Carson City by Democratic Las Vegas Assemblyman Steve Yeager — would wipe out much of the progress made in 2015 in public employee collective bargaining reforms.

Yeager, who also happens to be a Clark County public employee, would erase a provision in the law that prohibits paying union officials from public coffers for time spent doing union business. It also negates a provision blocking pay increases after a union contract has expired and before a new one is inked. It further requires any new contract to be retroactive to the expiration date of the previous contract — greatly reducing incentives for union members to accept a lower offer.

State Sen. Heidi Gansert sits in the Legislature. (R-J pix)

State Sen. Heidi Gansert sits in the Legislature. (R-J pix)

The bill is redistributionism. Taking from the taxpayers to line the pockets of public employee union members.

Yeager is employed by the Clark County Public Defenders Office, whose union contract expires in June.

The state of Nevada operates under the Dillon Rule, which limits the power of local governments to those expressly granted by the Legislature, meaning local governments are basically subsidiaries of the state and employees of those local governments, such as Yeager, essentially are serving in the executive branch of state government.

Which brings us to Article 3 of the Nevada Constitution, which states: “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 in this constitution.”

Therefore, Yeager, while currently serving in the Legislature, is also a member of the executive branch and, since he works in the court system, he is an employee of the judicial branch — a triple threat!

Such ignoring of explicit requirements of the state Constitution has been ongoing for decades and currently there are several lawmakers whose day jobs are with a local government.

In 2011, the libertarian-leaning Nevada Policy Research Institute’s legal arm, the Center for Justice and Constitutional Litigation, filed suit against state Sen. Mo Denis because he also was an employee of the state Public Utilities Commission, and had been for 17 years.

Denis immediately resigned from his $56,000-a-year state job in order to maintain his part-time $10,000-every-other-year state senator post, and a judge declared the lawsuit moot.

A week ago CJCL filed a similar suit against state Sen. Heidi Gansert, who holds a $210,000-a-year in pay and benefits public relations job with the University of Nevada, Reno.

 “Gansert’s continued employment in the state’s executive branch, as Executive Director of External Relations for the University of Nevada, Reno, puts her in direct violation of Nevada’s Separation of Powers clause, now that she is also serving in the state senate,” CJCL Director Joseph Becker said in a press release reporting on the litigation. “As a senator, she can simply not continue her employment in the executive branch without violating this clearly worded constitutional provision.”

In a statement Gansert called the suit meritless and said, “Nevada has an unambiguous precedent of legislators taking time off from their jobs in higher education to serve the people of the state.”

Of the unambiguous Separation of Powers clause, Becker said it was designed to preserve the independence and integrity of each branch, and having a legislator make decisions that might directly benefit employees of another branch creates a clear conflict of interest.

As witness AB121.

Thomas Jefferson wrote in “Notes on the State of Virginia” in 1784: “All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. … An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

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28 comments on “Newspaper column: Why separation of powers must be enforced in Nevada

  1. Nevada has its own swamp to drain. If you are a public taxpayer funded employee, it is a conflict of interest to serve in the state assembly. So there is where a bill needs to be drafted to protect the taxpayers of Nevada from those who serve to push their own well being at our expense.

  2. deleted says:

    Why wouldn’t Freedom of Speech, Freedom to peaceably assemble, freedom of association, in a “right to work” state, make any restriction on lawmakers being employed elsewhere (even as a public employee) unlawful and unconstitutional?

  3. Because you don’t have a freedom to line your own pockets by picking those of others.

  4. deleted says:

    Mine was a serious question Thomas.

    And until the day comes (don’t hold your breath) when there are no public sector employees, or, as you seemed to refer to them above as people who “line their pockets by picking those of others” yours can’t be considered a serious response.

    How does a law restricting an individual from being employed as a pblic servant and a legislature not violate the First Amendment’s protections of Free Association and Speech?

  5. James Madison, who edited George Mason’s bill of rights, said in Federalist Paper No. 47:

    “The accumulation of all powers, legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

    He didn’t see a conflict between the First Amendment and separation of powers.

  6. deleted says:

    Well I don’t see the quote as being particularly relevant for this discussion. And I did just ask for your opinion, but since you brought Madison into the discussion, how do you reconcile the above with this:

    “That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.”

    And, after reading Federalist 47 (and 48) in total, it seems to me that Madison didn’t believe that every potential overlap of powers between branches was bad, in fact, he understood that these were necessary. And, his concern, was not with individuals who acted within the branches, but with the overall control that any particular branch would ultimately have over the others.

  7. Completely irrelevant. “Overlap” that provides checks and balances is different from concentrating powers and functions in the same hands.

  8. Bill says:

    There has not been any real test of the separation of powers doctrine, insofar as I know, as it pertains to a member or employee of the executive or judicial branch holding a seat in the Legislature at the same time. I think that the Gansert case is weakened by virtued of the fact that she is an employee of the University of Nevada System which is a separate and discrete entity, created by the Nevada Constitution and governed by an elected Board of Regents. The University System is arguably, a separate and distinct entity. The Regents exercise legislative, executive and judicial functions over the university system. Quite frankly, in my opinion, it would have been a far stronger case to challenge some of the legislators who are employed by local governments or by school districts. That would cause some shock waves. My question is why was this particular case brought instead of against others who are patently in violation of the separation of powers doctgrine?

  9. Rincon says:

    “The accumulation of all powers, legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” His words apply to our 1% today.

  10. deleted says:

    Jefferson warned Americans, and admonished them, to “crush” the large corporations (which of course were relatively tiny in size and power compared to those existing today) which would DARE challenge the authority of the government then.

    “I hope we shall crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial by strength, and bid defiance to the laws of our country.”

    Read more at: https://www.brainyquote.com/quotes/quotes/t/thomasjeff135362.html

    Odd that some forget Jefferson so hated corporations

  11. deleted says:

    Anyone else sickened by this? I have to tell you, it sure bothers me a lot more than whether some teacher is also a Nevada legislator

    And so we’re clear; there not only isn’t a single good reason for the pipeline, but the biggest objection to it, from the start, was that the pipe would leak causing untold environmental damage (forgetting entirely about the damage that would be caused when the stuff going through the pipe got got in the first place).

    Well, the main complaint about the pipe was that it was being purchased from foreign steel companies (mostly Indian) that had sold incredibly faulty steel and pipes that had leaked when used on other projects BADLY and regularly.

    So the orange ball promised that he would use American steel, and build the “American Way” but 2 days after the Don’s capo takes over (Wilber Ross sat on the board of the worlds largest steel company until last Wednesday) Don apparently changed his mind.

    http://www.thedailybeast.com/articles/2017/03/03/buy-american-rule-for-keystone-pipeline-dropped-after-ex-foreign-steel-exec-became-commerce-secretary.html

  12. Steve says:

    The beast lies. From the left.

    Truth is all the steel was already purchased and onsite for that project. would have been totally “liberal” to make them replace all of it!

    What matters is how future projects are supplied and built.

    But you knew that, Patrick. You just couldn’t avoid the beast’s hype mill.

  13. deleted says:

    “In a Feb. 23 meeting with CEOs, Trump told U.S. Steel Corp CEO Mario Longhi that the Keystone and Dakota pipelines “have to” use “steel made in this country.”

    And in a speech to the Conservative Political Action Conference on Feb. 16, Trump said the material for the Keystone and Dakota pipelines “comes from the United States, or we’re not building it … If they want a pipeline in the United States, they’re going to use pipe that’s made in the United States.”

    In fact, ABC News has identified at least five instances since the Inauguration where Trump intimated the Keystone pipeline would be built with steel manufactured in America.”

    http://abcnews.go.com/Politics/keystone-pipeline-american-steel-trumps-repeated-promises/story?id=45898255

  14. deleted says:

    “In a meeting with small business leaders, Trump clarified that he not only wants pipeline companies to purchase pipes fabricated in the United States, but also expects the pipe suppliers to use raw U.S. steel. This comes at a time when some manufacturers are already struggling under the rising cost of raw steel, due to efforts to prevent foreign countries from dumping cheap supplies in the North American market.

    Trump also revealed how he would pressure pipeline companies to comply: by potentially refusing to exercise eminent domain, the government’s ability to appropriate private land.

    “If we’re going to use our powers of eminent domain and all the other powers, then I want the pipe to be manufactured with United States steel,” Trump said.

    http://www.cnbc.com/2017/01/26/trumps-plan-to-force-pipeline-makers-to-use-us-steel-is-dictatorial-and-a-bad-idea.html

  15. Steve says:

    Patrick, It’s OLD news. 25 Jan, 2017

    The beast hyped it.

    http://www.reuters.com/article/us-usa-trump-pipelines-kemp-idUSKBN1591DQ

  16. deleted says:

    ““In a Feb. 23 meeting with CEOs, Trump told U.S. Steel Corp CEO Mario Longhi that the Keystone and Dakota pipelines “have to” use “steel made in this country.”

    And in a speech to the Conservative Political Action Conference on Feb. 16, Trump said the material for the Keystone and Dakota pipelines “comes from the United States, or we’re not building it … If they want a pipeline in the United States, they’re going to use pipe that’s made in the United States.”

  17. Steve says:

    And just this morning he dumped a whole bunch of tweets….old news, Patrick.

    We are learning he likes to deflect. You, of all people, should admire his clear talent in that regard.

    I didn’t vote for Trump. I am not a supporter outside the fact I want him and his administration to do well because if they don’t, we all lose.

  18. Rincon says:

    Quit wriggling Steve. Trump said that US Steel would be used and he was wrong. This was written March 4th: Trump said as recently as last week that Keystone and the Dakota Access pipeline must use American steel “or we’re not building one.” He makes promises far too casually. If he followed his own word, he would not allow it to be built. Additionally, it’s very hard to believe that no one in the oil industry (Rex Tillerson, anyone?) would have informed Trump of this fact once he made his claim months ago. Thousands of people knew about it.

    One more question: These pipes were fabricated long before the approval, so what would the company have done with them if the Pipeline had not been approved? Either the deal was fixed or the pipes are standard issue anyway and could be used on another project. Either way, claiming that there is no other choice is just a pile of bull cookies.

  19. deleted says:

    The word is lied Rincon. Not wrong. And no one with any sense, would believe that the man who, then until last Wednesday board member of the worlds largest steel mker (Accelor Mittel) but was just confirmed as Commerce Secretary, had nothing to do with it.

    Reminds me of when bush decided that bird flu was such a threat to this country, that he ordered the US to purchase 2 BILLION dollars word of Tamiflu from the company run by Don Rumsfeld, who not so coincidentally refused to sell his stock in that company when it became Secretary of Defense. He made over 5 million dollars (that we know of) because of bush’s generosity with taxpayer funds.

    Wonder how much orange man just gave his new commerce secretary?

  20. Steve says:

    My article link is from JAN 25, 2016. The BEAST’s typical hype is from a few days ago.

    It was clear current projects would never be held to buying new steel.

    And if you like your doctor, you can keep your doctor and premiums will go down by 2500 dollars a year and if you like your plan you can keep your plan…..shall we go on with things said by politicians what don’t happen like they were said?

  21. As for the Dakota Access pipeline, only a 1,100-foot section under the lake remains for the 1,172-mile pipeline.

  22. deleted says:

    How many miles left on the a keystone Thomas?

    Any “truth” to the unsupported clam that “all the steel was already purchased and onsite for that project”

  23. CNNMoney: “TransCanada said late Friday it has already has purchase agreements for the steel pipe it will use on Keystone. It said half of the pipe will come from the Arkansas plant of India-based steelmaker, Welspun. Another 10% will come from a Welspun plant in India, the rest will be imported from Canada and Italy. In addition, it has already purchased about $800 million worth of other goods from U.S. manufacturers.”

  24. deleted says:

    Yes it is well known that tanscanada is buying pipe (made of steel produced in India which as everyone knows is horrible and constantly fails) the question really was:

    Is there any support for the claim that the pipes are already on site? Or was this….untrue?

    (Obviously Thomas this is sort of rhetorical because since the land hasn’t even been appropriated by the government yet, there isn’t any way that the pipe could be there,so don’t waste to much time responding.)

  25. deleted says:

    Just a bit of information about Keystones use of steel produced in India (the same steel that the “Arkansas” pipe will be made from, which has repeatedly failed, creating huge spills across the US.

    “The government ordered the inspections after problems with substandard steel surfaced in several other projects. An investigation revealed that several pipelines built during a construction boom from 2007 to 2009 contained significant amounts of defective pipe that stretched under pressure. Investigators traced the problems to defective steel produced by several mills, but mostly by Welspun Power and Steel, a manufacturer based in India.

    Almost half of the steel in the 30-inch Keystone pipeline came from Welspun and was manufactured about the same time the company provided defective steel on several other pipeline projects. As a result, the Pipeline and Hazardous Materials Safety Administration, the agency charged with oversight of the nation’s 2.1 million miles of pipeline, ordered more tests, including on Keystone.

    Those recently completed tests identified 47 anomalies where the Keystone pipeline may have expanded beyond agency-stipulated limits.”

    http://www.stltoday.com/news/local/metro/worries-over-defective-steel-force-transcanada-to-check-oil-pipeline/article_c0b2c3a6-ef66-532b-9266-2dd501b8df75.html

  26. […] is the second time NPRI has sued to tried to get lawmakers to follow the plain language of the Constitution. Earlier it sued state […]

  27. […] couple of years ago the libertarian-leaning think tank, Nevada Policy Research institute, did just that. It sued state Sen. Mo Denis on behalf of a person who wanted Denis’ $56,000-a-year job at the […]

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