The lawyers for Nevada’s lawmakers appear to have finally stumbled onto a provision of the state Constitution worthy of being adhered to.
In mid-November the state Department of Conservation and Natural Resources (DCNR) announced that four-term Las Vegas Democratic Assemblywoman Heidi Swank had been selected to head up the Division of Outdoor Recreation, which had been created by the 2019 Legislature and funded with $657,000 during the current two-year budget. The salary of the new director has not been disclosed. The new unit is tasked with promoting outdoor recreation businesses and conservation of public lands.
The agency told The Nevada Independent — a donor-funded, web-based news outlet — that there were dozens of applicants for the job and several people were interviewed.
DCNR’s Director Bradley Crowell was quoted as saying, “Heidi’s extensive professional and legislative experience combined with her vision for the new Division are the perfect match to ensure outdoor recreational opportunities reach every corner of and every community in Nevada.”
Swank chaired the Assembly Natural Resources, Agriculture and Mining Committee in each of the past two sessions. She was quoted as saying, “I look forward to bringing all of these entities together to further Nevada’s outdoor recreation economy and get more Nevadans outdoors.”
Two weeks later, an attorney for the Legislative Counsel Bureau (LCB), the lawmakers lawyers, approached Swank and basically said: Not so fast.
It turns out there is a section of the state Constitution that reads: “No Senator or member of Assembly shall, during the term for which he shall have been elected, nor for one year thereafter be appointed to any civil office of profit under this State which shall have been created, or the emoluments of which shall have been increased during such term, except such office as may be filled by elections by the people.”
There is a similar provision in the U.S. Constitution barring members of Congress from being appointed to any civil office they created while in office.
Such provisions are intended to prevent lawmakers from creating lucrative sinecures for themselves. Swank voted for the bill creating the new executive branch job.
“I can’t blame anyone in this,” Swank resignedly told The Independent. “It was a bit of bad luck.” She did not say whether she now plans to seek re-election.
Now that the LCB has discovered this prohibition in the state Constitution, perhaps there are a couple of other sections they should reconsider.
For example, there is the provision approved by Nevada voters in 1994 and 1996 amending the Constitution to state “an affirmative vote of not fewer than two-thirds of the members elected to each House is necessary to pass a bill or joint resolution which creates, generates, or increases any public revenue in any form …”
But during the spring legislative session the LCB — after stating otherwise in 2011, 2013 and 2015 — opined that a two-thirds vote was unnecessary if a bill delayed a scheduled reduction in tax rates — in this case the modified business tax. The bill continued the then-current tax rate, which was scheduled to be cut on July 1, though it failed to garner a two-thirds vote in the state Senate. Senate Republicans are currently suing to overturn the action as unconstitutional.
Then there is the section of the state Constitution that reads, “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.”
But the LCB has determined that public employees can serve in the Legislature so long as their “public employment does not exercise any sovereign functions appertaining to another department of the state government.”
“Any function” became “sovereign function,” whatever that means. In some years, as many as 20 percent of lawmakers have been public employees able to hold life or death sway over the budgets of their bosses.
James Madison wrote 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.”
The state Constitution spells out these prohibitions in unambiguous terms and for a good reason. The flippant misinterpretation of the language results in abuse of power.
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.