Judge holds that lawmakers can hold down government jobs at the same time

A Carson City judge has thrown out a lawsuit brought by the Nevada Policy Research Institute in an effort to force compliance with the Separation of Powers Clause of the Nevada Constitution.

In order to establish standing as a party, NPRI sued state Sen. Heidi Gansert on behalf of a client, Doug French, who wanted to seek her job as executive director of external relations at the University of Nevada, Reno.

Article 3 of the Nevada Constitution 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.”

Judge James Russell tossed the suit from the bench and has two weeks to issue a written ruling explaining how on earth a person exercising the powers of the Legislature can also exercise any functions of the executive branch.

State Sen. Heidi Gansert (R-J pix)

NPRI attorney told The Nevada Independent the group will wait for the judge’s written ruling before deciding what step to take next.

This is the second time NPRI has sued to try to get lawmakers to follow the plain language of the Constitution. Earlier it sued 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, despite strong arguments from NPRI that there is a public-interest exception to mootness.

Gansert’s university job yields $210,000 a year in pay and benefits.

There are nearly a dozen current lawmakers who also hold jobs in state or local government. Since Nevada operates under the Dillon Rule, which limits the power of local governments to those expressly granted by the Legislature, local governments are basically subsidiaries of the state. Arguably employees of local governments are serving in the executive branch of state government, and also would be barred from serving as a lawmaker under the Constitution.

When he filed suit against Gansert, Becker issued a statement saying, “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. As a senator, she can simply not continue her employment in the executive branch without violating this clearly worded constitutional provision.”

In a counter 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.”

That unambiguous precedent only dates from 1964, as newspaper columnist Vin Suprynowicz pointed out in a 2011 column. Suprynowicz said even school janitors were not allowed to sit in the Legislature. This was chipped away by a couple of attorney general rulings until in 1971 Attorney General Bob List opened the flood gates. List held that a person could “exercise powers” as a legislator so long as he didn’t “exercise powers” in one of the other branches. Never mind that the constitutional criteria is “any function.”

Suprynowicz also related, “In 2004, Attorney General Brian Sandoval — now our governor — issued an opinion holding that state workers should not be allowed to sit in Carson City. But it has never been tested in the courts and is widely ignored.”

But the lawmakers’ lawyers at the Legislative Counsel Bureau issued a different opinion two years earlier and said “the separation- of-powers provision in the state constitution only prohibits a member of the Legislature, during his term, from holding a constitutional office or a nonconstitutional office in another department of state government, because a person who holds a constitutional or nonconstitutional office exercises sovereign functions appertaining to another department of the state government. However, it is also the opinion of this office that the separation-of-powers provision in the state constitution does not prohibit a member of the Legislature, during his term, from occupying a position of public employment in another department of state government, because a person in a position of public employment does not exercise any sovereign functions appertaining to another department of the state government.”

Nope, no conflict there, other than being able to hold life and death sway over the budget of one’s own boss.

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.”