Friday, Oct. 31, 2003 | 5:22 a.m.
WEEKEND EDITION
October 31 - November 2, 2003
By Dina Titus
Dina Titus, a political science professor at the University of Nevada, Las Vegas, is the Democratic minority leader in the Nevada Senate.
There is currently a move to ban all public employees, including teachers, firefighters, police officers, university professors and others from serving in the Nevada Legislature. A group is calling for the public to throw them out of office, not through the normal electoral process, but by amending the Constitution to prohibit them from even running. The information being circulated by the proponents of this petition drive is misleading; their logic is faulty; their agenda is suspect; and if they succeed, the consequences for Nevada will be dire.
Their first, easily refutable argument is that the Nevada Constitution's separation of powers provision already prohibits public employees from serving in the Legislature. This is just not true; if it were, there would be no need for a petition. Two long-standing opinions from the Attorney General and the Legislative Counsel have both indicated that no such blanket prohibition exists.
Furthermore, legal experts have predicted that the Nevada Supreme Court would construe the words of the Constitution literally and thereby prohibit only the exercise of powers of more than one branch at the same time by the same person. Such language does not prohibit a legislator from serving as an employee in another branch because an employee does not exercise sovereign functions, unlike a judge or a regent, for example.
Their second, more outrageous assertion is that public employees are to be blamed for the tax increase proposed by Republican Gov. Kenny Guinn and passed by two-thirds of both houses last session. Suggesting that public employees voted for taxes so they could give themselves a raise is ridiculous. If these legislators made personal gain a priority, they would not have gone into public service in the first place; they could make more money in the private sector, but have chosen instead to serve and protect.
Furthermore, even after the 2003 session, Nevada taxes on individual residents remain among the very lowest in the country, far lower than Minnesota, Ohio, Florida and Michigan, for example, where public employees are banned from service.
Also, until 2003, no major tax increases were proposed or had been passed for over a decade when most of the public employees currently under attack were serving in the Legislature, and several sessions closed with no increase in salaries or benefits for government workers; when increases did occur, they lagged far behind the national inflation rate and average private sector wages.
Finally, of the 17 legislators who voted for taxes in the Senate in 2003 (9 Republicans and 8 Democrats), only two were public employees; 15 votes for the tax increase were cast by representatives from the private sector.
Third, advocates of the ban make the bogus argument that other states prohibit public employees from serving in the Legislature. They fail to note, however, that unlike Nevada, 28 of the 31 states that impose some restrictions have legislatures that meet annually and the others are often in special session, making it impossible for a legislator to effectively hold another governmental position. They also neglect to mention that only 13 states exclude local government employees; only 9 states exclude firefighters and police officers; and similar to the federal Hatch Act, no state has a provision that explicitly bans educators.
Denying public employees the opportunity to serve their community and state in the Legislature is like throwing the baby out with the bath water. Such a move is the first step toward undermining our citizen Legislature, a long cherished institution in Nevada which is strongly supported by the voters because it is both more accessible and more accountable than a body of full-time, professional lawmakers.
Once any particular group is excluded from the process, a dangerous precedent is set. Who will be targeted next? Shouldn't we trust the voters to make these choices instead of limiting their options? Failure to do so can only lead to less representative democracy and a shifting agenda which is sure to favor powerful special interests.
Narrowing the field of potential legislators would also deprive Nevada of much needed expertise. Public policy today is extremely complex and runs the gamut from team teaching to tort reform.
Of course, we need ranchers, doctors and business owners involved, but we also need teachers, firefighters and police officers, who not only care deeply about the Nevadans they serve every day as part of their jobs, but who also understand what works on the ground and have special insight into how government can deal more effectively with real life problems. A Legislature void of such public servants would inevitably be more aloof, less caring, and prone to policy by trial and error.
Instead of banning public employees from the Legislature, a better approach is to tighten our ethics laws so there is one standard that applies to all lawmakers, a standard that will allow us to preserve our precious citizen Legislature, give voters a wide range of choices at the polls, and take advantage of the expertise and commitment that public servants bring to the process.
At the same time, this ethics reform also must strengthen prohibitions against potential conflicts of interest and penalize any abuse of power. Accordingly, I will be introducing a bill to establish tougher disclosure requirements so that financial statements more accurately reflect all sources of income for both public and private employees. It will also require all public employees -- state and local -- to take a leave of absence without pay during the session, as I have always done, and will prohibit any elected official from serving on a corporate board that pays a salary while he or she is in office.
In short, my bill will help guarantee that tax dollars are safeguarded and the public's interests -- not government, not special, not corporate interests -- are indeed the priority of the Nevada Legislature.
By Knight Allen
Knight Allen chaired the committee that wrote the initiative petition that seeks to prohibit government employees from holding elected office.
Any point-counterpoint on the question of whether or not government employees should hold elective office must start with the Constitution of the state of Nevada. All other aspects of the debate -- such as the benefits of a citizen legislature, conflicts of interest, double dipping et al. -- are secondary to the core question: Does the Nevada Constitution address this issue? The answer is yes it does:
"Article 3, Section 1. Three separate departments; separation of powers. 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 herein expressly directed or permitted."
That is as clear an articulation of our fundamental principle of government, the separation of powers doctrine, as you will ever find and it should be the first, central and final word on the subject. Unfortunately we live in an era when the parsing of words to eliminate their meaning has been elevated to an art form and those who find the Constitution a bother and a roadblock to getting what they want, namely the government employee/political activists, have ignored it or redefined it to suit themselves.
No one else is violating the Constitution the way the public employee/elected officials are. No private sector elected official is functioning in more than one branch of government. Not even lawyers who are not employees of the judicial branch.
The vast majority of us, as private sector citizens, don't function in even one branch of government but here we are being told by these political elites that it's perfectly OK for them to be in two branches. Well my fellow Nevadans, it is not OK and any attempt to get you to think about this question from any position that ignores your Constitution or claims that Article 3, Section 1 is outdated or antiquated should be met with calm but overwhelming rejection.
We must not surrender our constitutional authority to make public policy to these government insiders no matter how bright, intelligent, personable, knowledgeable or well-intentioned they may be.
Now, keeping in mind that all the whining about how unfair it is to single out government employees is just a smokescreen to divert your attention away from Article 3, Section 1 of the Constitution, let's deal with some of the questions and issues raised.
1. Do we want a citizens legislature?
Yes. But only one that sits in obedience to the Constitution with no government employees in it.
2. Should the legislature be full time and be paid accordingly?
Absolutely not. Look around. There isn't a full time "professional" legislature that isn't a disaster. Example? California pays its legislators $99,000 a year. Plus $30,000 expenses. Plus a car allowance. Plus a housing allowance. What are those poor people over there getting for their money?
3. Conflicts of interest.
There will always be conflicts of interest when one human being holds the authority of government over others. That's just the way it is. However, no private sector elected official is assaulting the Constitution and or core political principle the way the government employee/ elected officials are. Their conflict of interest is putting our entire system of government at risk and it has to stop.
4. Double dipping.
Eliminate government employees from elected office and the double-dipping "problem" goes away.
5. If you exclude government employees, where does it stop? Do you exclude ranchers, doctors, corporate board members, waitresses or electricians?
No you do not. It stops exactly and precisely where the Constitution says it stops. With those who are consolidating the functions of more than one branch of government in their hands -- the government employee/elected officials. No one else is doing that so no one else gets excluded.
6. "I'm not exercising authority in the other branch."
Sorry, it doesn't wash. If you're exercising authority in one branch (senator or assemblyman) you can't function in either of the others (professor, teacher, clerk, etc.), according to Article 3, Section 1.
7. We'll lose the experience and knowledge government employees bring to elected office.
Why? The public testimony table is the proper place for government employees to offer their expertise. Their ideas are respected and welcomed and they can have a major impact on the making of public policy -- in the right way. We do not have to trash the Constitution to benefit from their input.
8. Attorney General Opinions say it's OK.
Would you like to know one of the best kept secrets about those opinions? They're not rooted in the Nevada Constitution. The key decision, in 1971, rambled all over the country looking for decisions in other states (California, Colorado, Maryland and New Jersey) to rationalize the shredding of Nevada's Article 3, Section 1.
The Nevada Constitution and the separation of powers doctrine exist for our benefit. They are there to protect us form an overreaching government. We must not let party loyalty or partisan politics blind us to the need to protect both, no matter what.
Get the government employees out of elected office.
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