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.”

 

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31 comments on “Judge holds that lawmakers can hold down government jobs at the same time

  1. Bruce Feher says:

    No surprise! Members of the Ruling Klass protecting members of the Ruling Klass!

  2. deleted says:

    Frivolous lawsuit, judge ought to have sanctioned NPRI.

    This lawsuit is precisely the type of stuff that increases the cost of government to everyone.

  3. Steve says:

    Coming from Patrick, that is encouragement for NPRI to continue!

  4. Barbara says:

    Asinine judge. He needs to be defeated when he is up for reelection. Hope the people up north take heed. If he was from Las Vegas, I would be calling his office.

    As it is, I will be calling Heller’s office tomorrow for his vote against repealing the ACA. What a lying bastard! My next call will be to the Clark County Republican Party asking that Heller be censored for not uphold the party platform and asking they find anyone to run against him in the primary.

  5. Steve says:

    That is the problem, Barbara. The Republican party doesn’t have any legit candidate to offer and even if they did, it would be a come from behind effort.
    With Heller it’s more like 50/50 odds at the moment. how this plays out over the coming votes and months is going to be the teller. And it will tell Titus to get in or stay out. Watch Dina Titus for an indication about Heller’s re-electability odds.

    And I think you meant censured, not censored. (damned autocorrect, anyway)

  6. deleted says:

    “Conservative integrity” means that when Heller wins the republican primary that, notwithstanding his “betrayal” of those “principles” “conservatives” will line up to vote for him, as they quickly dropped their “principled” objections to voting for the guy that called Cruz a liar.

    “Conservatives” and “principles” are like military intelligence; an oxymoron.

  7. Steve says:

    Patrick, there won’t be any “Primary” for the Republicans, they don’t have anyone to run.

    And in Nevada, it’s “caucus”. but you know that, right? hmmpf

  8. Barbara says:

    Good catch Steve. Yes censured. Heller is toast. If the Republicans want to keep that seat, they need to come up with someone. He can never win in the general election.

  9. Steve says:

    Heller has never lost a race.
    Reid couldn’t say the same during all his skin of the teeth wins.

    If Heller was already toast, he would be voting lockstep with Trump and McConnell. Nothing to lose and all that. Heller thinks he has a chance and is walking the tightrope as a consequence.
    Rosen is the chosen one (like Rory was) but (like Rory) is actually a really weak candidate.
    On both points, Dina Titus thinks so too, or she would have announced by now.
    Don’t count Heller out yet.

  10. deleted says:

    But Barbara simply demonstrated the same ideological impurity that Agent Orange did when he called your candidate a liar and his father an assassin, and yet that didn’t stop you from supporting him.

    Did you suddenly regain the “principles” you previously “lost”?

  11. Steve says:

    “You”?
    If you mean me, then think again.
    I look at reality, unlike you rosy colored eye peeps.

    Trump was never my candidate. Neither was Clinton. Heller remains the only choice for a realist.

  12. Steve says:

    OTOH

    If Titus jumps in….at least she has the political balls to think for herself.

  13. deleted says:

    Barbara, my last post should read:

    “But Barbara, Heller, simply demonstrated the same ideological impurity that Agent Orange did when he called your candidate a liar and his father an assassin, and yet that didn’t stop you from supporting him.

  14. Steve says:

    Ahh, the “innocent” error.

  15. Athos says:

    Once again, it’s a question of morality. The very fact that so many State legislators pass laws that directly impact their “real jobs” in the public sector should shame any moral person. And it obviously infects both dems and repubs, because that’s the way human nature works. (they have their “shame” switch removed)

    little p, is your “agent orange” reference like my Pinocchio label of Saul Alinski’s minion? And how come there’s no outrage over that cretin selling AKA by saving us $2500/yr and we can keep our doctor?
    Don’t you lefties have any morals at all? (or did you have your morals removed with your shame switch)

  16. […] of the citations offered by the Nevada Policy Research Institute in its lawsuit seeking to enforce the state Constitution’s Separation of Powers Clause and ban public employees from serving in […]

  17. deleted says:

    Athos:

    I thought rightees were defenders of the a First Amendment? Does a president lose their rights to free speech when they get elected?

    And morals? Do rightees maintain their “moral high ground” when they cheer Agent Orange’s racist, sexist, and anti-religious tweets each and every day?

    Is this similar to a “conservatives” moral “high ground” that led them to vote for Agent Orange in the first place while he raged about Tom Cruz’ father being involved in the Kennedy assasination?

  18. Athos says:

    Little p, are you equating Pinocchio’s lies about the healthcare bill to first amendment speech? What moral guidelines do used to justify that?
    And actually I voted for Trump because he was the only one talking about illegal aliens and getting rid of the problem by enforcing Americas laws. And it appears that he’s doing just that! There was a nice press conference today that I thoroughly enjoyed!
    I’m disgusted at the lying dog Republicans who ran on repealing Obamacare and beg for us to send a president that would sign their repeal bill of 2015, and now can’t find their will. Washington DC Seduces people to the Darkside. Case in point are these same Republicans

  19. deleted says:

    Well Athos, I can’t quite discern your response to my question. Are you suggesting that a president loses his right to free speech once he is elected?

    Or are you saying that actually utilizing the right to free speech, as President Obama did, was immoral?

  20. Steve says:

    After the “beer summit” Obama most certainly did publicly refrain from expressing his opinion before checking what he was saying.

    He self censored. Because any President expressing any opinion has a huge effect on the public.

    So, yes. Presidents lose the right to free speech once elected. Better put, it is taken away from them, in a moral manner though not through any legal or constitutional means.

  21. Athos says:

    Lying is immoral. Pinocchio lied about the benefits of Obama care. everybody knew he lied. He knew he lied. And nobody seems to care.
    And to me that’s immoral.

  22. Athos says:

    Interesting thought, Steve. When Pinocchio said Trevon Martin could have been his son, I believe he purposefully wanted to divide the races. Too bad the other fella was a white hispanic(what ever THAT is)!

    Ferguson, Baltimore, BLM, all comments not to unite the races but to divide. Not so much an exercise in First Amendment Freedom of Speech, but a planned agenda, implemented with a purpose in mind. Fundamental transformation of this country.

    Divide and conquer! Overload the system until it’s broken and then government can come in and rule the whole shebang (with the elites governing what’s best for us)

    Where have I read that before? Cloward-Piven (1966). Saul Alinsky (1971), Karl Marx(1848)

    little p, you’re running with some strange bedfellows!

  23. deleted says:

    Athos:

    If lying is immoral, and all people are liars, and all people are therefore immoral, then where does that leave us?

    You’re not suggesting I hope that there is a single individual on earth that has not lied are you?

    Since I don’t think you believe there is a person that does not lie, why is your vitriol saved for anyone other than Agent Orange? Hypocrisy?

  24. Athos says:

    little p, for you to minimize Pinocchio’s lie to sell government control of all American’s health services by comparing “all people are liars” is the very definition of hypocrisy.

    Congratulations! You can be the poster child for the new tyrannical government. Hope you get a good position with our Lords and Glorious Leaders, because if not………I’ll meet you in the Gulags.

  25. Rincon says:

    Obama’s lie was reprehensible, but it’s obvious that the >100 told by Trump since his inauguration are equally unforgivable. Unfortunately, human beings frequently rationalize the immoral behavior of others because they are on the same team. https://www.nytimes.com/interactive/2017/06/23/opinion/trumps-lies.html

  26. Athos says:

    “Obama’s lie was reprehensible” but you won’t condemn it because it fits with your agenda.

    “Unfortunately, human beings frequently rationalize the immoral behavior of others because they are on the same team.” Speak for your self, rin, Pinocchio Care will give us the same loving attention given to the Vets. All of us (not just us nasty Constitution loving Bible thumpers) but you and yours, as well.

  27. Rincon says:

    rep·re·hen·si·ble
    ˌreprəˈhensəb(ə)l/
    adjective
    adjective: reprehensible

    deserving censure or condemnation.
    “his complacency and reprehensible laxity”
    synonyms: deplorable, disgraceful, discreditable, despicable, blameworthy, culpable, wrong, bad, shameful, dishonorable, objectionable, opprobrious, repugnant, inexcusable, unforgivable, indefensible, unjustifiable; More

    Since the fourth word in this definition is condemnation, you might want to brush up a bit on your vocabulary.

  28. Steve says:

    de·serv·ing
    dəˈzərviNG/Submit
    adjective
    worthy of being treated in a particular way, typically of being given assistance.

    You still didn’t rise to the level of condemnation, rincon.

    I too, know how to play the distraction game.

  29. Athos says:

    and besides, Trump’s 100 times worse, right?

  30. Rincon says:

    “You still didn’t rise to the level of condemnation, rincon.” Take an English class. You need it.

  31. Steve says:

    de·serv·ing
    dəˈzərviNG/Submit
    adjective
    worthy of being treated in a particular way, typically of being given assistance.

    bears repetition for those who willfully ignore reality, IE Rincon.

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