After decades of differing legal opinions and multiple lawsuits, the Nevada Supreme Court has finally addressed the prickly issue of whether government employees can constitutionally serve in the Legislature.
However, the court didn’t exactly settle the matter for good.
On Thursday, the court issued a 4-3 ruling that four lawmakers being sued by (my former employer) Nevada Policy Research Institute were not in violation of the state’s separation of powers doctrine by virtue of their employment with other government agencies.
Article 3 of the Nevada Constitution states simply: “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.”
Quite correctly, the court ruled that employees of state-level agencies would be in direct violation of Nevada’s prohibition on dual service under such language — which is a big win for Nevada Policy and others who have long argued such behavior jeopardizes the integrity of our trifurcated form of constitutional government.
However, the court also concluded that employees of local government agencies and the state’s system of higher education are exempt from such restrictions. In the majority opinion, Justice Lidia Stiglich asserts such governmental departments somehow exist outside of our Constitution’s three branches of government.
“While respondents are members of the Nevada Legislature, they are not also employed within the executive department and do not exercise the constitutional authority of the executive department in the other positions they occupy,” according to the majority’s opinion.
In addressing whether Sen. Dina Neal (D-North Las Vegas) performs “any function” in a branch other than the Legislature, for example, the court looked at her role with the Nevada State University and the College of Southern Nevada.
“The Nevada System of Higher Education (NSHE) is organized outside the executive department, and thus dual employment with a college within that system and as a state legislator consequently does not implicate constitutional concerns,” ruled the court.
So where does the state’s system of higher education reside if not within the executive branch? Well, according to the ruling, it exists entirely outside the three branches as its own semi-autonomous entity.
Such reasoning, however, doesn’t stand up to scrutiny.
As Justice Douglas Herndon noted in his dissent, words matter — and the words of Article 3 that structure our government make no mention of some mysterious, miscellaneous, catch-all category of independent departments.
“There are three, and only three, departments of State government. And they must be separate,” notes Herndon. “The majority’s struggle to identify which department NSHE falls into is a symptom of its attempt to resist the express language used by our framers.”
And therein lies much of the problem: The majority never sufficiently addresses how it is possible for the NSHE to exist outside of the Constitution’s extraordinarily limited structure for government. Perhaps our framers merely forgot to mention this phantom category of government power when they telegraphed the final draft of our Constitution for entry into the Union?
More importantly, however, is that even if the system of higher education was an unenumerated fourth department of government, allowing dual service would inherently allow for one branch to be “impaired by the coercive influence” of another governmental entity — which is precisely the sort of conflict the state’s separation of powers clause was designed to address.
For an example of how such influence could occur, simply consider the 2015 election of Republican Heidi Seevers O’Gara to the state Senate. At the time, it was no secret that her public sector employer in higher education was poised to benefit greatly from her presence in the Legislature. Indeed, the fact that she would be able to “influence” the legislative branch for the benefit of another governmental department was not only acknowledged, it was celebrated by advocates of higher ed.
Regardless of what one might think about NSHE, such influence isn’t always beneficial or benign.
For an egregious example of how quickly it can grow toxic, consider the infamous case of Wendell Williams — an assemblyman and Las Vegas administrator who allegedly used his role in the Legislature to gain pay raises from the city and advance his position in local government. Williams was a mere local government employee — as are three of the defendants named in the lawsuit — and yet he severely injured the independence of both the Legislature and his local government employer.
Nonetheless, the majority’s opinion from last Thursday fails to consider such coercive influence as a violation of Article 3 of the state’s Constitution. In the court’s ruling, the majority asserts that employees of local entities do not “exercise the executive authority constitutionally bestowed on the executive department.”
As a matter of case law, that’s a pretty sweeping statement — effectively drawing a bright line between state-level executive branch employees and local public workers employed by political subdivisions.
It’s a bright line that is going to raise far more questions than it answers somewhere down the road. After all, even the majority opinion notes that certain local government employees — such as prosecutors — could potentially be in violation of the state’s separation of powers doctrine if they were to moonlight as lawmakers. In a footnote on one page, the majority even left open the possibility of a future legal challenge should some district attorney, for example, attempt to serve in the Legislature.
And such a legal challenge would certainly make sense. A prosecutor’s role is to execute and enforce the laws written by the Legislature — a function that is the textbook definition of executive branch authority.
It’s for that reason Herndon’s dissent makes far more legal sense than the majority’s sweeping generalization. As he wrote, “If a case may be tried specifically against county prosecutors, why would the same principle not apply to other county employees?”
The majority never answers that question, nor does it adequately consider whether the lawmakers in question perform “executive functions” as part of their local government employment. Instead, it insists the local employees named in the lawsuit are free to continue their practice of dual serving simply because they don’t work for a state-level employer.
Without further scrutiny of how, or if, such local public service includes exercising “powers properly belonging” to the executive branch of government, the majority’s opinion makes for a weak precedent that could eventually be reconsidered under the right circumstances.
And those circumstances might not be too difficult to imagine. Nevada Policy’s lawsuit, for example, originally included two lawmakers who were, in fact, deputy district attorneys. Should any future prosecutors be similarly tempted to serve in our part-time Legislature, the opportunity to resurrect this controversy might just present itself.
As with the court’s claim that NSHE operates outside the confines of our constitutional structure, the court’s failure to adequately explore the relationship between local governments and executive authority represents a gap in logic that weakens the precedent it’s trying to set with last week’s ruling.
The issue may have finally been addressed by the high court — but it certainly hasn’t been entirely settled.
Michael Schaus is a communications and branding expert based in Las Vegas, Nevada, and founder of Schaus Creative LLC — an agency dedicated to helping organizations, businesses and activists tell their story and motivate change. He has more than a decade of experience in public affairs commentary, having worked as a news director, columnist, political humorist, and most recently as the director of communications for a public policy think tank. Follow him at SchausCreative.com or on Twitter at @schausmichael.
