Heller asks for opinion on public employees serving in Legislature

Wednesday, Oct. 29, 2003 | 9:49 a.m.

CARSON CITY -- Secretary of State Dean Heller has asked the state Attorney General's Office for a legal opinion on whether public employees in the executive branch of government can serve in the Legislature.

Chief Deputy Secretary of State Renee Parker sent a letter Tuesday to Attorney General Brian Sandoval saying there were conflicting legal opinions on the issue.

The request comes during the controversy over members of local government, elected to the Legislature, drawing dual pay.

Assemblyman Ron Knecht, R-Carson City, the only state employee in the Legislature, said it sounded "like a reasonable idea under the circumstances." When he filed for office, Knecht said, he received a legal opinion from the counsel for the state Public Utilities Commission, where he works as an economist, saying he could serve.

He said two questions were posed -- whether he was barred by the Hatch Act and whether state law would prevent him serving. He took a leave of absence without pay during the legislative session.

The PUC counsel found there was no violation of the Hatch Act, Knecht said, because federal money was allocated only to programs of railroad and gas line safety -- areas where he is not involved.

The Hatch Act bars those working in executive branch agencies that receive federal funds from political elective office.

Knecht said he taught one class at night at the Western Nevada Community College during the Legislature and was paid $1,710. He also said he appeared at a utilities hearing in Oklahoma as an expert witness in a case in which he had been employed before he went to work for the PUC.

He also said he appeared in San Francisco in a case involving cost of capital for public utilities.

In 1994 Thomas Batten, who worked for the state Gaming Control Board, was elected to the Assembly from Washoe County. Board Chairman Bill Bible required he resign from the state agency, based on legal opinions from the state attorney general's office.

Parker, in her letter to Sandoval, said "It appears the previous opinions issued by both the attorney general and the Legislative Counsel Bureau result in conflicting conclusions as to the issue of whether persons employed by the executive branch of government may continue to be so employed or take a leave of absence from their executive branch duties if subsequently elected to a legislative position."

The request was prompted by a letter from John Wagner, who said that previous legal opinions appeared to be wrong.

Wagner of Carson City said, "Members of the Assembly and Senate that are employed by the executive branch of government take a leave of absence during the 120 day legislative session, however, the Assembly members are elected to two-year terms and the senate to a four-year term, not just 120 days.

"They also serve on interim committees during their term of office," Wagner said. "I believe that they should not be employed in the executive branch during their entire term of office in the Legislature."

Parker said the attorney general's office issued opinions in 1952, 1974 and 2002 on the question. She said a fourth opinion was requested in 2002 but former Attorney General Frankie Sue Del Papa declined to issue another opinion on the matter.

She said there was also a legal opinion from the Legislative Counsel Bureau on the issue. Sandoval was asked to reconcile the previous opinions to clarify the law.