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.

Gift Clause case is shunted by judge

A Carson City judge has dismissed on a technicality a lawsuit challenging as unconstitutional the governor’s so-called Catalyst Fund, which has doled out nearly $20 million in recent years to companies that promise to hire workers.

The suit was brought by Michael Little, owner of a company that converts recycled landscape trimmings into biomass, a renewable energy source. It claimed a $1.2 million handout to competitor SolarCity, which at the time installed solar panels on rooftop, violated the Gift Clause of the state Constitution, which prohibits the state donating or loaning money to any company. SolarCity has since pulled out of the state due to an adverse ruling by the Public Utilities Commission making that business unprofitable.

Little is represented by the Center for Justice and Constitutional Litigation (CJCL), a division of the Nevada Policy Research Institute.

The Nevada Appeal reports the judge dismissed the case because CJCL failed to add Clark County and SolarCity as parties to the case as he had instructed.

But CJCL attorney Joseph Becker told the judge SolarCity was not added because it has left the state. What happens next is unclear.

 

Plaintiff Michael Little

The Nevada Constitution specifically states: “The State shall not donate or loan money, or its credit, subscribe to or be, interested in the Stock of any company, association, or corporation, except corporations formed for educational or charitable purposes.” Voters have three times rejected amendments that would have removed the Gift Clause.

 

Becker explained in an interview a year ago that CJCL is in the business of trying to set precedent that serves the public interest.

Gift clauses started appearing in state constitutions in the mid-1800s after state governments in the East invested heavily in private companies building infrastructure such as canals and railroads that went bust. The states of Indiana, Illinois and Michigan were bankrupted as a result.

“We needed a vote of the people to change the Constitution, which never happened, but now suddenly its OK for the state to do something that up until now, even they insisted, would take a constitutional amendment,” Becker said earlier.

Judge again slaps down PERS for trying to hide retirement records from the public

A Carson City judge has slapped down the Nevada Public Employees’ Retirement System for refusing to release the names and pensions of 57,000 public retirees under the state public records law, according to The AP.

The Nevada Policy Research Institute sued PERS back in July for again refusing to release those records. The Reno newspaper successfully sued for those records in 2013.

District Judge James Wilson ruled Tuesday that the PERS claim that making these names public would subject the retirees to cybercrime was “hypothetical and speculative.”

After the 2013 ruling, PERS altered the way it kept records, claiming it only had records filed by using Social Security numbers, which are “non-disclosable” by law.

”By replacing names with ‘non-disclosable’ social security numbers in its actuarial record-keeping documents, PERS has attempted to circumvent the 2013 ruling of the Nevada Supreme Court requiring disclosure,” explained Joseph Becker, the director of NPRI’s Center for Justice and Constitutional Litigation at the time of the suit.

In 2015 NPRI requested retirement records to include on its TransparentNevada.com website — a free resource for public-sector administrators and taxpayers interested in learning about the cost of public sector compensation.

The lawsuit itself argued the information was clearly subject to the public records law, which was intended to “foster democratic principles by providing members of the public with access to inspect and copy public books and records.”
Additionally, the suit noted that in 2015 state Supreme Court ruled: “When an agency has a computer program that can readily compile the requested information, the agency is not excused from its duty to produce and disclose that information.

“Despite having the clear ability to provide the public with useful and complete records, PERS has deliberately subverted transparency by altering its record keeping, and refusing repeated requests for full disclosure,” NPRI and CJCL noted at the time.