Newspaper column: All provisions of state Constitution must be adhered to

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.”

Nevada Legislature

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.

Editorial: File suit to uphold two-thirds vote requirement for taxes

So, the governor is confident that the extension of the modified business tax rate will withstand a legal challenge, according to the Las Vegas newspaper.

“We’ve got legal opinion from LCB (Legislative Counsel Bureau) that, you know, a simple majority is what’s needed,” Gov. Steve Sisolak was quoted as saying this past week. “I’ve been in government for 20 some-odd years, and if you don’t trust your attorneys, you’ve got a problem. So I’m confident that the attorneys gave us a good opinion. We’ll move forward from there.”

Be prepared to move back, governor, by nearly $100 million in your budget for the next two years — the budget that promises 5 percent raises for teachers.

Republicans have promised a legal challenge if the business tax were extended without a two-thirds majority of both houses as prescribed by the Constitution. The tax extension passed the Senate on a party line vote of 13-8, one vote shy of two-thirds.

Voters in 1994 and 1996 amended the Nevada 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, including but not limited to taxes, fees, assessments and rates, or changes in the computation bases for taxes, fees, assessments and rates.”

The modified business tax passed in 2015 by a two-thirds vote of lawmakers contained specific language saying the rates would be reduced in 2019 if tax revenues exceeded a certain level, which they have.

But the compliant LCB told the majority Democratic lawmakers and the Democratic governor, “It is the opinion of this office that Nevada’s two-thirds majority requirement does not apply to a bill which extends until a later date or revises or eliminates a future decrease in or future expiration of existing state taxes when that future decrease or expiration is not legally operative and binding yet, because such a bill does not change but maintains the existing computation bases currently in effect for the existing state taxes.”

The bill clearly “generates” revenue that two-thirds of the lawmakers in 2015 said would decrease as of July 1, 2019.

The state Constitution is not something to tamper with. Republicans should take it to court and make the Democrats abide by the rules, even if it means a special session would have to called. In fact, the GOP lawmakers should go directly to the state Supreme Court for an opinion that would be binding, unlike the LCB opinion “that future decrease or expiration is not legally operative and binding yet …”

Asked nearly the same question in 2011, 2013 and 2015, the LCB said a two-thirds vote was necessary. So, governor, when do you trust your attorneys? Now or then?

Republican lawmakers should join forces with those who will be paying the tax — Nevada businesses — and sue at the earliest possible convenience to defend the state Constitution. Randi Thompson, a lobbyist for the National Federation of Independent Business, has told the Las Vegas newspaper the organization is looking at the option of filing suit. Perhaps, the conservative Nevada Policy Research Institute can join the fray. The more the merrier.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Gov. State Sisolak, right, talks to reporters. (R-J pix)

See you in court, governor

So, the governor is confident that the extension of the modified business tax rate will withstand a legal challenge, according to both the Las Vegas newspaper and the online Nevada Independent.

“We’ve got legal opinion from LCB (Legislative Counsel Bureau) that, you know, a simple majority is what’s needed,” Gov. State Sisolak was quoted as saying Tuesday. “I’ve been in government for 20 some-odd years, and if you don’t trust your attorneys, you’ve got a problem. So I’m confident that the attorneys gave us a good opinion. We’ll move forward from there.”

Be prepared to move back, governor, by nearly $100 million in your budget for the next two years — the budget that promises 5 percent raises for teachers.

Republicans have promised a legal challenge if the business tax was extended without a two-thirds majority of both houses as prescribed by the Constitution. The tax extension passed the Senate on a party line vote of 13-8, one vote shy of two-thirds.

Voters in 1994 and 1996 amended the Nevada 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, including but not limited to taxes, fees, assessments and rates, or changes in the computation bases for taxes, fees, assessments and rates.”

The modified business tax passed in 2015 by a two-thirds vote of lawmakers contained specific language saying the rates would be reduced in 2019 if tax revenues exceeded a certain level, which they have.

But the compliant LCB told the majority Democratic lawmakers and the Democratic governor, “It is the opinion of this office that Nevada’s two-thirds majority requirement does not apply to a bill which extends until a later date or revises or eliminates a future decrease in or future expiration of existing state taxes when that future decrease or expiration is not legally operative and binding yet, because such a bill does not change but maintains the existing computation bases currently in effect for the existing state taxes.”

The bill clearly “generates” revenue that two-thirds of the lawmakers in 2015 said would decrease as of July 1, 2019.

The state Constitution is not something to tamper with. Republicans should take it to court and make the Democrats abide by the rules, even if it means a special session would have to called. In fact, the GOP lawmakers should go directly to the state Supreme Court for an opinion that would binding, unlike the LCB opinion “that future decrease or expiration is not legally operative and binding yet …”

Asked nearly the same question in 2011, 2013 and 2015, the LCB said a two-thirds vote was necessary. So, governor, when do you trust your attorneys?

Gov. Steve Sisolak, right, talks to reporters about legislative session. (R-J pix)

 

Newspaper column: Just say no to annual legislative sessions

Democrats in Carson City are beating this dead donkey again.

Ten of the 13 state Senate Democrats are pushing for annual legislative sessions instead of sessions every other year. Senate Joint Resolution 5 would amend the state Constitution, which currently calls for 120-calendar-day sessions in odd-numbered years, by establishing 90-legislative-day sessions in odd-numbered years and 60-legislative-day sessions in even numbered years. Similar measures failed in 2013, 2015 and 2017.

The measure would have to pass this session and again in 2021 before going to the voters in 2022. The voters nixed a similar measure in 1970 with 66.2 percent voting against annual sessions.

Currently lawmakers are only paid their $150-a-day salaries for the first 60 days of each session, though they receive per diem expenses for the entire session, which works out to about 96 working days. If SJR5 were to pass, they would receive salaries for 150 days instead of 60 days, essentially a 150 percent pay increase.

A fiscal note prepared by the Legislative Counsel Bureau estimates the change would raise the cost of legislative sessions from the current $20 million every two years to $33.3 million.

“Despite our tradition of biennial sessions it is time for a change. While this tradition made sense during periods when our population was much lower and our finances less complex, it no longer addresses the needs of a rapidly growing state with a multibillion-dollar budget operating in a global market,” state Sen. Joyce Woodhouse of Henderson said during a recent hearing on the resolution. “Our state simply cannot adequately address rapidly changing conditions, a complex budget and policy matters by meeting every other year. In the past 17 years alone, our general revenue fund has more than doubled. At the same time our responsibilities as legislatures have increased significantly.”

Imagine how much the revenue — taken from the pockets of hardworking Nevadans — would have grown if the voters had approved annual sessions half a century ago.

At the hearing state Sen. Heidi Gansert of Reno expressed concerns that annual sessions would make it more difficult for anyone but the well-off to serve. “How do we maintain a citizen Legislature where we have folks who come from all walks of life?” she asked. “This would still be part-time but you would have to take off every year, and so that would be a concern. Who would have employers who would allow them to do that or would this force in some cases only the more affluent to be able to afford to serve?”

Janine Hansen, state president of Nevada Families for Freedom, pointed out that under SJR5 the 60- and 90-legislative-day sessions could last for months if lawmakers meet only a couple of days a week. She pointed out that Utah, with a similar population as Nevada, has its lawmakers meet annually but for only 45 days each year, less than Nevada’s current 120-day sessions.

Hansen suggested the better way to allow lawmakers to handle the work load is to cut the number bills that may be introduced in half.

The National Conference of State Legislatures reports that in the early 1960s only 19 state legislatures met annually, while the rest met biennially. By the mid-1970s, the number of states meeting annually had jumped from 19 to 41. Today only Nevada, Montana, North Dakota and Texas still met biennially. Texas’ population is considerably larger than Nevada’s.

While Nevada does not have full-blown legislative sessions every year it does have standing committees of lawmakers who meet when not in session and are able to make funding and regulatory changes. The governor also has the power to call special legislative sessions, such as the ones called in recent years to dole out billions in tax breaks to electric car makers Telsa and Faraday Future. Just what we need more of, right?

NCLS points out in a list of arguments against annual sessions posted on its website that annual sessions inevitably lead to a spiraling of legislative costs — for the lawmakers as well as the staffers who must be brought together twice as often. Also, biennial sessions allow lawmakers to work with and associate with their constituents. Another argument is that there are enough laws already limiting people’s liberty.

Lawmakers should dump this expensive and counterproductive measure now.

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.

Legislative building in Carson City. (AP pix)

Editorial: Nevada’s own sex scandal needs a full airing

The year 2017 will go down as the year sexual harassment claims erupted — from Hollywood to D.C., from Harvey Weinstein to Kevin Spacey, from senate candidate Roy Moore to Sen. Al Franken.

Lest we forget, this year Nevada had its own sex scandal, but, unlike the others, this one was buried in secrecy and the accused allowed to resign and slink away.

State Sen. Mark Manendo, a Las Vegas Democrat, resigned in July after the taxpayers shelled out $67,125.12 to a law firm to investigate allegations of multiple incidents of inappropriate behavior toward female staffers and lobbyists over a number of years.

Former state Sen. Mark Manendo

Senate Majority Leader Aaron Ford, a Las Vegas Democrat now running for Nevada attorney general, hired the law firm during the legislative session earlier this year after learning of complaints.

The law firm — after interviewing 58 people, including Manendo — reported in July that Manendo violated the Legislature’s anti-harassment policy on 14 occasions during the 2017 session alone. It also said Manendo tried to interfere with the investigation by trying to get an accuser to recant and attempting to learn the names of other accusers.

In his resignation letter to Gov. Brian Sandoval, Manendo made no mention of the allegations against him. He wrote, “I am grateful for the support, trust, and confidence bestowed upon me over the years by my constituents and colleagues. As my senate term comes to an end, I feel now is the time to step aside and look for new opportunities to serve others.”

When Manendo resigned, the state Senate Democrats put out a press release saying, “Such behavior is not tolerable in any context, let alone by an elected member of the Nevada Senate. It is in the best interests of the institutions of the State Senate and the Nevada Legislature that Senator Manendo resigns from office.”

But the statement also declared, “In order to maintain the privacy and confidentiality promised to the victims and witnesses who spoke to the independent investigator, the investigative report will not be made public.”

Did the Democratic senators purposefully hide the severity of the misdeeds of one of their own that had been going on unaddressed for years?

After news media outlets filed requests for access to the investigative report under the state Public Records Law — which states that, unless exempted by statute, all public records are available for public scrutiny — the Legislative Counsel Bureau (LCB) issued a 37-page document denying those requests.

The LCB explained, strangely enough, “The Public Records Law cannot be applied to the requested materials because the Legislature and its Houses, committees, agencies, caucuses, members, officers and staff do not come within the statutory definition of ‘governmental entity’ as that term is used in the Public Records Law.” The Legislature is not a government entity?

Barry Smith, executive director of the Nevada Press Association, commented to the Las Vegas newspaper at the time, “Their lawyers have built a case for protecting legislators from public scrutiny on the argument that it’s not in the public interest and the Legislature is not a governmental entity. That’s ridiculous. It’s the kind of double-talk used by people to justify all kinds of nonsense.”

Concealing a government-contracted and taxpayer-funded report on the behavior of an elected official is tantamount to obstruction of justice. How are the citizens ever to be able to evaluate the seriousness of the allegations or even whether the the allegations might have risen to the level of warranting criminal prosecution?

How high or low is the bar set for future lawmakers and legislative staffers and lobbyists?

We believe the public deserves a full accounting and that someone running for attorney general should join us in demanding that accountability.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Newspaper column: What a difference a single word makes

Though the Nevada Constitution clearly states that any person serving in one branch of government may not perform “any function” of another branch, the Legislature’s lawyers, the Legislative Counsel Bureau (LCB), in 2002 penned a non-binding opinion that stated a person may serve in the Legislature if they do not exercise “any sovereign functions” in another branch.

The definition of the adjective sovereign is: “possessing supreme or ultimate power,” thus the LCB adulteration of the Constitution emasculates the plain language of the Separation of Powers Clause.

The Nevada Supreme Court will have the opportunity to clear up this matter.

State Sen. Heidi Gansert (R-J pix)

The Nevada Policy Research Institute’s (NPRI) legal arm, the Center for Justice and Constitutional Litigation (CJCL), this past week filed notice with the state high court that it is appealing the decision of a Carson City judge dismissing its lawsuit against a state senator for violating the Separation of Powers Clause.

“Defying the clear language of the Nevada constitution, Nevada Supreme Court precedent, and a 2004 Attorney General Advisory Opinion by then-attorney-general Governor Brian Sandoval, Judge (James) Russell relied upon a non-binding opinion from the Legislative Counsel Bureau in his ruling from the bench — but we believe the actual words of the state constitution should matter more,” declared CJCL Director Joseph Becker in an email press release.

In that 2004 opinion, Sandoval noted that in the 1957 Supreme Court case cited by the LCB as the basis for its opinion, the court never got to the point of ruling on the Separation of Powers Clause and dismissed it on other grounds.

CJCL sued state Sen. Heidi Gansert because she also is an employee of the University of Nevada, Reno.

“We believe the plain language of the constitution should take precedent over a non-binding LCB opinion, or the preferences of the ruling class,” commented Becker. “And we look forward to the appeals process finally giving further legal clarity on the issue.”

This fight has been going on for years.

There have been years in which nearly half the lawmakers in Carson City were either government employees or the spouses of government employees. In some years every Senate and Assembly leadership post was held by a public employee.

Currently 10 lawmakers hold down state or local government jobs. As such, despite clear conflicts of interest, the lawmakers can vote themselves raises and hand out largesse to their employers — as Gansert did in this past session by voting for 2 percent raises for state employees and a capital expenditure budget that included more than $40 million for a new engineering building at UNR.

In 2004 then-Secretary of State Dean Heller asked the Supreme Court to remedy this skirting of the Constitution, but the court ruled that the Constitution gives lawmakers the power to determine the qualifications of their members. Thus, the judicial branch telling the legislative branch who its members may be violates the Separation of Powers Clause.

Joseph Becker

But the court did allow that “declaratory relief could be sought by someone with a ‘legally protectible interest,’ such as a person seeking the executive branch position held by the legislator.”

Under that guidance, the CJCL first sued state Sen. Mo Denis on behalf of a person who wanted Denis’ $56,000-a-year job at the Public Utilities Commission. A judge declared the case moot when Denis resigned his PUC job.

NPRI’s lawyers came back with a similar suit against Gansert on behalf of a person who wants her public relations job at UNR — a job that yields $210,000 a year in pay and benefits.

Now that the district court judge has ruled that the Separation of Powers Clause is meaningless, it is back to the Supreme Court.

The court should heed the words of U.S. Supreme Court Justice Louis Brandeis in a dissenting opinion from 1926, “The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”

Or they could turn to a 1967 Nevada Supreme Court opinion that flatly stated, “The division of powers is probably the most important single principle of government declaring and guaranteeing the liberties of the people.”

The words of the state Constitution should not be made meaningless by adding a word plucked out of thin air.

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.