A little sunshine would do the Legislature good

Talk about the tail wagging the dog.

According to the morning paper, the lawyers for lawmakers in Carson City are telling those lawmakers what laws they can make and not make.

Democratic state Sen. Tick Segerblom of Las Vegas tells the paper he asked to have a bill drafted this session that would have made legislators’ emails and calendars public records and thus subject to perusal by the public. He said the Legislative Counsel Bureau told him it could not be done.

 

A time traveling reporter quotes a March 2018 memo as saying lawmakers and their staffs do not fall within the definition of “governmental entity” in the Public Records Law. Pay no attention to the fact that lawmakers wrote the Public Records Law and conceivably may rewrite that law and change the definition of “governmental entity.”

The LCB also was quoted as saying that putting lawmakers under the preview of the Public Records Law would “conflict and interfere with the constitutional doctrines of separation of powers and legislative privilege and immunity.” Such doctrines may be widely embraced but they are not spelled out in the state Constitution, except that lawmakers may not be arrested during a session.

Finally, the memo eventually will say lawmakers’ emails and calendars “do not come within the ordinary definition of ‘public books and public records’ as those terms are used in the Public Records Law.” See above: Lawmakers can change the definition in the law.

But, according the morning paper, the American Civil Liberties Union will plow ahead anyway and try to amend a bill already pending by adding language similar that Segerblom had proposed.

 

The chances of lawmakers voting to expose their own backroom dealmaking and horse trading is slim to none, but it is good to see someone trying to shine a little sunshine into the dark recesses of the Legislature.

Legislative building in Carson City

 

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Can lawmakers raise a minimum wage established by a constitutional amendment?

Senate committee discusses bill to raise minimum wage in Nevada. (KOLO photo)

Senate committee discusses bill to raise minimum wage in Nevada. (KOLO photo)

Brian Fernley of the Legislative Counsel Bureau told the Senate’s Commerce, Labor and Energy Committee, which was hearing testimony on Senate Bill 106 this morning, that lawmakers could raise the minimum wage in Nevada even though the current minimum wage was established by constitutional amendment by the voters in 2004 and 2006.

His comments came after a Bonnie McDaniel, a small business owner, testified in Las Vegas that in 2015 the LCB had opined that the minimum wage could only be raised by amending the state Constitution. (Her testimony comes at two hours and eight minutes into the archived video. Click on the 2017 Session, then click Senate Standing Committees and then on 02/20/17 Senate Committee on Commerce, Labor and Energy video.)

She read the the entire section of the 2015 LCB fact sheet that began: “Because provisions governing the minimum wage rate are included in the Constitution, any changes to the minimum wage provisions require a constitutional amendment,” but for a while had disappeared from the legislative website but was reproduced on this blog.

She also read the entire quotes posted here from a 2014 Supreme Court ruling that said the state legislature “has not the power to enact any law conflicting” with the state Constitution.

She used the phrases from the blog noting that the current LCB opinion is “diametrically opposite” of the opinion from two years ago, even though one of the LCB staff lawyers had told an Assembly committee hearing another minimum wage hike bill that the current opinion merely “updated and confirmed” its earlier opinion.

This morning Fernely told lawmakers:

“The Legislative Counsel has reviewed the provisions of this bill and the cases decided by the Supreme Court addressing the Nevada Constitution’s minimum wage amendment. It is a well established rule of state constitutional construction that the power of the Legislature to enact laws is extremely broad except where limited by the U.S. Constitution or the Nevada Constitution.

“In addition, any limitation on the Legislature’s power in the Nevada Constitution is to be strictly construed and the provisions of the Nevada Constitution must not be interpreted to inhibit the power of the Legislature unless the provision of the Constitution clearly prohibits the Legislature from acting.

“In case interpreting the minimum wage amendment the Nevada Supreme Court has held that only statutes that conflict with the constitutional amendment are prohibited by the amendment. In the Thomas versus Yellow Cab case the Supreme Court held there was an actual conflict between the constitutional amendment because the statute exempted certain employees from the minimum wage requirement but constitutional amendment did not contain such an exemption.

“In this case with this bill the constitutional amendment clearly states the employers must pay a wage of quote at least the amounts set forth in the language of the constitutional amendment. Thus increasing the minimum wage by legislation would not conflict with the constitutional amendment and because there is no conflict with the constitutional amendment the Legislature has the power to enact legislation to increase the minimum wage. And that has been the opinion of the Legislative Counsel.”

First, the phrase “at least,” which Fernley indicated he was quoting, appears nowhere in the minimum wage amendment.

Second, that may now be the LCB opinion but it has not always been as such.

The amendment does state, “Each employer shall pay a wage to each employee of not less than the hourly rates set forth in this section,” which one might interpret as defining what a minimum wage is. It then goes on to state the minimum wage is to be the same as the federal minimum wage for those employers offering health insurance and a dollar higher for those who don’t, but that wage could be adjusted for inflation, whichever is greater.

So, the question is whether the lawmakers can set a “minimum wage” that is different from what the voters established.

The amendment does say the employee is to be paid “not less than the hourly rates set forth,” but it then goes to set forth what that floor is. Does the amendment establish both a floor and a ceiling? Does the phase “not less than” open the door for lawmakers ratchet up the minimum to whatever they choose?

That Thomas v. Yellow Cab case cited by Fernley also includes a Latin phrase used in the law: expressio unius est exclusio alterius, which means the expression of one thing is the exclusion of another.

Therefore, one should ask: Does the precise expression of what the minimum wage shall be in the constitutional amendment exclude the lawmakers from defining it as something else entirely?

I guess it depends on who you ask and when you ask it.

This is the minimum wage amendment:

Payment of minimum compensation to employees.

A.  Each employer shall pay a wage to each employee of not less than the hourly rates set forth in this section. The rate shall be five dollars and fifteen cents ($5.15) per hour worked, if the employer provides health benefits as described herein, or six dollars and fifteen cents ($6.15) per hour if the employer does not provide such benefits. Offering health benefits within the meaning of this section shall consist of making health insurance available to the employee for the employee and the employee’s dependents at a total cost to the employee for premiums of not more than 10 percent of the employee’s gross taxable income from the employer. These rates of wages shall be adjusted by the amount of increases in the federal minimum wage over $5.15 per hour, or, if greater, by the cumulative increase in the cost of living. The cost of living increase shall be measured by the percentage increase as of December 31 in any year over the level as of December 31, 2004 of the Consumer Price Index (All Urban Consumers, U.S. City Average) as published by the Bureau of Labor Statistics, U.S. Department of Labor or the successor index or federal agency. No CPI adjustment for any one-year period may be greater than 3%. The Governor or the State agency designated by the Governor shall publish a bulletin by April 1 of each year announcing the adjusted rates, which shall take effect the following July 1. Such bulletin will be made available to all employers and to any other person who has filed with the Governor or the designated agency a request to receive such notice but lack of notice shall not excuse noncompliance with this section. An employer shall provide written notification of the rate adjustments to each of its employees and make the necessary payroll adjustments by July 1 following the publication of the bulletin. Tips or gratuities received by employees shall not be credited as being any part of or offset against the wage rates required by this section.

B.  The provisions of this section may not be waived by agreement between an individual employee and an employer. All of the provisions of this section, or any part hereof, may be waived in a bona fide collective bargaining agreement, but only if the waiver is explicitly set forth in such agreement in clear and unambiguous terms. Unilateral implementation of terms and conditions of employment by either party to a collective bargaining relationship shall not constitute, or be permitted, as a waiver of all or any part of the provisions of this section. An employer shall not discharge, reduce the compensation of or otherwise discriminate against any employee for using any civil remedies to enforce this section or otherwise asserting his or her rights under this section. An employee claiming violation of this section may bring an action against his or her employer in the courts of this State to enforce the provisions of this section and shall be entitled to all remedies available under the law or in equity appropriate to remedy any violation of this section, including but not limited to back pay, damages, reinstatement or injunctive relief. An employee who prevails in any action to enforce this section shall be awarded his or her reasonable attorney’s fees and costs.

C.  As used in this section, “employee” means any person who is employed by an employer as defined herein but does not include an employee who is under eighteen (18) years of age, employed by a nonprofit organization for after school or summer employment or as a trainee for a period not longer than ninety (90) days. “Employer” means any individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, or other entity that may employ individuals or enter into contracts of employment.

D.  If any provision of this section is declared illegal, invalid or inoperative, in whole or in part, by the final decision of any court of competent jurisdiction, the remaining provisions and all portions not declared illegal, invalid or inoperative shall remain in full force or effect, and no such determination shall invalidate the remaining sections or portions of the sections of this section.

[Added in 2006. Proposed by initiative petition and approved and ratified by the people at the 2004 and 2006 General Elections.]

 

 

 

Newspaper column: Minimum wage bill doesn’t pass constitutional muster

Lisa Benson cartoon

Lisa Benson cartoon

Democrats in the Nevada Legislature have introduced Senate Bill 106, which proposes to amend the state minimum wage law by raising the minimum wage by 75 cents an hour each year until it reaches $11 an hour for employers who provide health insurance and $12 an hour for those who do not — a 50 percent increase.

There is one minor problem with SB106. You see, that minimum wage law was last amended by an initiative petition approved by the voters in 2004 and again in 2006, which amended the state Constitution to require that the minimum wage be tied to the federal minimum wage or inflation, whichever is higher.

The current federal minimum wage is $7.25 an hour, and thus that is Nevada’s minimum for employers who offer insurance and it is $8.25 for those who do not.

According to a Legislative Counsel Bureau fact sheet published in 2015, “Because provisions governing the minimum wage rate are included in the Constitution, any changes to the minimum wage provisions require a constitutional amendment.”

In fact, the Nevada Supreme Court in 2014 opined in a case specifically about the minimum wage law: “If the Legislature could change the Constitution by ordinary enactment, ‘no longer would the Constitution be “superior paramount law, unchangeable by ordinary means.” It would be ‘on a level with ordinary legislative acts, and, like other acts … alterable when the legislature shall please to alter it.’”

Seems rather unequivocal. None of the major news media noticed this minor flaw in the bill.

Just such a constitutional amendment was proposed by initiative petition in late 2015, but that was dropped during the hectic election year, reportedly because of the difficulty of getting enough signatures to put it on the ballot. It would have raised the base minimum wage to $13 an hour.

Even if lawmakers manage to pass such a constitutionally suspect bill, it might not avoid the governor’s veto pen. Media accounts have quoted Gov. Brian Sandoval’s press secretary as saying, “Due to the predicted loss of jobs and harm to small businesses, the potential to block young people and individuals with less work experience from open positions, and an increase in consumer prices, the governor has historically opposed a legislative mandate to increase the minimum wage.”

A minimum wage hike would clearly affect profitability of employers, tend to push all hourly wage rates up, result in higher unemployment, drive certain employers out of the state and increase the cost of goods and services in general — thus affecting nearly everyone in Nevada.

The impact of such a change in either the law or the Constitution would be far ranging and carry unintended consequences.

“Unfortunately, the real minimum wage is always zero,” economist Thomas Sowell points out in his book “Basic Economics,” “regardless of the laws, and that is the wage that many workers receive in the wake of the creation or escalation of a government-mandated minimum wage, because they either lose their jobs or fail to find jobs when they enter the labor force.”

The Congressional Budget Office has estimated that if the federal minimum wage were increased to a mere $10.10 an hour — as proposed by President Obama and others in recent years — up to a million workers would lose their jobs.

According to the American Enterprise Institute, when the minimum wage rose 41 percent between 2007 and 2009, the jobless rate for 16- to 19-year-olds increased by 10 percentage points, from about 16 percent in 2007 to more than 26 percent in 2009 — even higher for minorities.

A Heritage Foundation study reported that every dollar increase in minimum wage really only raises take-home pay by 20 cents once welfare benefits are reduced and taxes are increased.

A Cato Institute analysis reports that a “comprehensive review of more than 20 minimum wage studies looking at price effects found that a 10 percent increase in the U.S. minimum wage raises food prices by up to 4 percent and overall prices by up to 0.4 percent.” Imagine what a 50 percent increase would do.Minimum wage jobs tend to be entry level jobs without which younger Americans cannot build the skills needed to earn higher pay. Nevada already has the 10th highest youth unemployment rate in the nation at 13.5 percent.

Attempting legislatively to raise the minimum wage is a bad idea for many reasons.

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.

Update: On Wednesday the Assembly Committee on Commerce and Labor met to hear testimony on another minimum wage hike bill, Assembly Bill 175, which proposes to raise the minimum wage from $7.25 an hour to $14 for employers who provide health insurance or from $8.25 to $15 for employers who don’t.

The question came up as whether the lawmakers have the authority change that law since the current law was establishes by constitutional amendment approved by the voters in 2004 and 2006.

The lawyer for the committee, Will Keane of the Legislative Counsel Bureau, responded: “I spoke with the Legislative Counsel Brenda Erdoes. She told me that our office thoroughly researched this during the 2015 legislative session and then updated and confirmed that research during the drafting of AB175 this session. She said that as result of their research it is the opinion of LCB legal, based on the rules of statutory and constitutional construction, that the provisions of the minimum wage amendment to the Nevada Constitution do not limit the inherent power of the Legislature to establish by statute a new minimum wage that is higher than the minimum wage that is currently required by law.”

But that morning there was an LCB fact sheet from August 2015 posted on the Legislature’s website that read:

“Because provisions governing the minimum wage rate are included in the Constitution, any changes to the minimum wage provisions require a constitutional amendment. There are two ways to amend the Constitution. One way is through the citizen initiative process. Citizen initiatives for constitutional amendments must be approved in identical form in two consecutive general elections. This is the process that enacted the current minimum wage requirements in the Constitution. The second way to amend the Constitution is through the legislative process. The Senate or Assembly may propose a constitutional amendment, which must pass in identical form with a majority of members of both houses in two consecutive biennial sessions. After that, the proposal must pass a popular vote during the next general election.”

By committee meeting time it had disappeared. Coincidence? The link now returns a 404 Error. But if you put the first sentence of the above fact sheet language into an Internet browser it will return to you a PDF titled: ”

Fact Sheet – 2015 Minimum Wage in Nevada

cached version of the list of LCB fact sheets online has a link to Minimum Wage in Nevada (August 2015), but that link also returns a 404 Error.

A little sleight of opinion? A little selective editing?

Most web archive and cache services also came up empty, but something called Old Home Page came up with this link. In case that too disappears here is a PDF: minimumwage

lcb-fact-sheet

August 2015 LCB Fact Sheet excerpt

So, tell us again how the LCB “updated and confirmed” the research it did in 2015 and the current opinion is diametrically opposite of its 2015 opinion, which has conveniently disappeared.

Be that as it may, a 2014 Nevada Supreme Court opinion in a case specifically about the minimum wage law is still online. That opinion states: “If the Legislature could change the Constitution by ordinary enactment, ‘no longer would the Constitution be “superior paramount law, unchangeable by ordinary means.” It would be ‘on a level with ordinary legislative acts, and, like other acts … alterable when the legislature shall please to alter it.’ In this case, the principle of constitutional supremacy prevents the Nevada Legislature from creating exceptions to the rights and privileges protected by Nevada’s Constitution.”

The opinion also flatly stated: “It is fundamental to our federal, constitutional system of government that a state legislature “has not the power to enact any law conflicting with the federal constitution, the laws of congress, or the constitution of its particular State.”

Legislature’s lawyers play sleight of opinion … now you see it, now you don’t

At a Assembly Committee on Commerce and Labor meeting this afternoon on Assembly Bill 175, which proposes to raise the minimum wage from $7.25 an hour to $14 for employers who provide health insurance or from $8.25 to $15 for employers who don’t, the question came up as whether the lawmakers have the authority change that law since the current law was establishes by constitutional amendment approved by the voters in 2004 and 2006.

The lawyer for the committee, Will Keane of the Legislative Counsel Bureau, responded: “I spoke with the Legislative Counsel Brenda Erdoes. She told me that our office thoroughly researched this during the 2015 legislative session and then updated and confirmed that research during the drafting of AB175 this session. She said that as result of their research it is the opinion of LCB legal, based on the rules of statutory and constitutional construction, that the provisions of the minimum wage amendment to the Nevada Constitution do not limit the inherent power of the Legislature to establish by statute a new minimum wage that is higher than the minimum wage that is currently required by law.”

But this morning there was an LCB fact sheet from August 2015 posted on the Legislature’s website that read:

“Because provisions governing the minimum wage rate are included in the Constitution, any changes to the minimum wage provisions require a constitutional amendment. There are two ways to amend the Constitution. One way is through the citizen initiative process. Citizen initiatives for constitutional amendments must be approved in identical form in two consecutive general elections. This is the process that enacted the current minimum wage requirements in the Constitution. The second way to amend the Constitution is through the legislative process. The Senate or Assembly may propose a constitutional amendment, which must pass in identical form with a majority of members of both houses in two consecutive biennial sessions. After that, the proposal must pass a popular vote during the next general election.”

Now it has disappeared. Coincidence? The link now returns a 404 Error. But if you put the first sentence of the above fact sheet language into an Internet browser it will return to you a PDF titled: ”

Fact Sheet – 2015 Minimum Wage in Nevada

A cached version of the list of LCB fact sheets online has a link to Minimum Wage in Nevada (August 2015), but that link also returns a 404 Error.

A little sleight of opinion? A little selective editing?

Most web archive and cache services also came up empty, but something called Old Home Page came up with this link. In case that too disappears here is a PDF: minimumwage

lcb-fact-sheet

August 2015 LCB Fact Sheet excerpt

But a 2014 Nevada Supreme Court opinion in a case specifically about the minimum wage law is still online. That opinion states: “If the Legislature could change the Constitution by ordinary enactment, ‘no longer would the Constitution be “superior paramount law, unchangeable by ordinary means.” It would be ‘on a level with ordinary legislative acts, and, like other acts … alterable when the legislature shall please to alter it.’ In this case, the principle of constitutional supremacy prevents the Nevada Legislature from creating exceptions to the rights and privileges protected by Nevada’s Constitution.”

The opinion also flatly stated: “It is fundamental to our federal, constitutional system of government that a state legislature “has not the power to enact any law conflicting with the federal constitution, the laws of congress, or the constitution of its particular State.”