Friday, Jan. 16, 2004 | 5:43 a.m.
WEEKEND EDITION
January 17 - 18, 2004
Prior to last year's bitter debate over state taxes, you'd have to go back to 1989 to find the last time a significant portion of the Nevada Legislature was under public assault.
Then the majority of legislators approved an ill-advised 300 percent pension increase for themselves, only to crawl back to outraged voters on their hands and knees by rescinding that decision in a special session.
The gesture was too little, too late -- more than one-third of the lawmakers seeking re-election lost their seats in 1990.
Fast forward to last year, when a sharply divided Legislature approved a record $836 million tax increase for the next two years.
While proponents argued that the increase was necessary to fund education and other programs struggling to keep up with Nevada's rapid population growth, foes countered that businesses would suffer and that expanding government would slow Nevada's economy.
Since then, three Assembly Democrats from Southern Nevada -- Wendell Williams, Kelvin Atkinson and Kathy McClain -- were fired from their government jobs for receiving government pay for those positions while serving in Carson City.
The situation became known as the "double-dipping scandal."
When coupled with the tax increase, the double-dipping controversy has created one big mess for all legislators who happen to be public employees. That's a significant chunk of the Legislature, since 14 of its 63 members held government positions as of last year.
It became quickly evident in the cases of Williams, a former Las Vegas' Neighborhood Services Department administrative officer, and former Clark County employees Atkinson and McClain that city and county personnel policies and state laws were muddled on the issue of employees serving in the Legislature.
Questions have since been raised as to whether the Nevada Constitution even allows public employees to serve in the Legislature. Nevada Attorney General Brian Sandoval is expected to render a fresh opinion soon on the issue, which has been debated for more than 50 years.
Even if he determines that public employees can continue to serve, Nevadans for Sound Government is attempting to get an initiative on the November general-election ballot that would ban employees with tax-supported jobs from being legislators.
How this public debate is settled could have far-reaching implications on the future shape of Nevada's part-time citizen Legislature.
Legislators who are public employees defend existing state policy, arguing that they are citizens, too, and therefore deserve to seek office without losing their jobs. Assemblywoman Ellen Koivisto, D-Las Vegas, who retired last year as a University of Nevada, Las Vegas employee, is among them.
"We pay taxes, and we vote," Koivisto said. "We're citizens the same as everyone else. If public employees aren't allowed to serve, who will be next?"
Las Vegan George Harris, who is leading the petition drive to ban public employees from the Legislature, holds the opposite view.
"The people are angry that these legislators are double dipping and lining their own pockets," Harris said. "A Legislature with only private-sector people would manage the public's money better. When they raise taxes, they're taking money out of their own pockets. Public employees take money out of your and my pocket because they benefit from the tax increases."
Nevada is one of 44 states with a part-time Legislature -- meaning its members can hold other jobs when they are not in session -- and one of only six states that meets every other year. Regular sessions in Nevada extend for only 120 days in odd-numbered years, excluding special sessions. In even-numbered years legislators sit on interim committees to consider possible legislation while holding onto their regular jobs.
The personal sacrifice Southern Nevada legislators make is considerable because they are 435 miles from home when they are in Carson City and because they are among the lowest paid lawmakers in the nation. A Nevada lawmaker's salary of $7,800 per regular session -- $130 daily for only the first 60 days -- was ninth lowest last year, according to the Denver-based National Conference of State Legislatures.
No one has come forth with evidence that Williams, Atkinson and McClain did what they did solely because of the low legislative pay, which has been at the same rate since 1985.
But legislative insiders say the combination of the distance from Las Vegas to Carson City and the low legislative pay serve to narrow the pool of Southern Nevadans who are willing to leave their families and jobs for service up north.
"Our board has supported increases in legislative pay," Carole Vilardo, Nevada Taxpayers Association president, said. "What we have seen happen are legislators who get elected and then find they cannot afford to serve. We also have found some seats where it was difficult for a challenger to file because of the legislative pay scale."
Comparisons with other states prepared by the National Conference of State Legislatures revealed that Nevada has a relatively high legislator turnover rate. The Assembly, whose members serve two-year terms, had an average turnover of 28 percent per session from 1992 to 2000, 15th highest in the nation in a comparison of lower legislative chambers.
The way Nevada's system is designed, legislators with the greatest advantage are those who are wealthy or retired because they have the financial means and the time to spend in Carson City. Those with outside jobs generally have to make more of a personal sacrifice to serve.
Among lawmakers who are employed, public employees generally don't have as much job flexibility as do legislators in the private sector, such as business owners and lawyers, many of whom continue to draw salaries while in Carson City without fear of public scrutiny.
For some public employees who are legislators, it is impossible to draw a salary from their job at the same time they are in session. Senate Minority Leader Dina Titus, D-Las Vegas, a UNLV professor, and Assemblyman Bernie Anderson, D-Sparks, a schoolteacher, are examples of lawmakers who have had to take leaves of absence without pay to serve.
"I not only lose $20,000 a year, I lose my retirement and health benefits," Anderson, who is retiring from teaching this summer, said. "I'm in my 34th year of teaching, but when I retire I will be just short of 30 years in retirement benefits."
Assembly Speaker Richard Perkins, D-Henderson, that city's deputy police chief, has drawn city pay for work on weekends because the Legislature is not in session on Saturdays or Sundays. But as the double-dipping affair has made clear, it is difficult for a legislator who is a public employee to justify receiving pay for work on weekdays when Carson City is bustling with legislative hearings and deal-making.
One problem in Nevada, and something that sets it apart from most other states, is the lack of a uniform policy that addresses pay issues for public employees when they are serving as legislators.
"It's a real mess because there are all sorts of statutes and constitutional provisions," said Lorne Malkiewich, director of Nevada's Legislative Counsel Bureau. "There's a difference between state and local government laws. We need to get the laws to work together."
An informal survey by the Las Vegas Sun of legislative attorneys and librarians in the other 43 states with part-time legislators found that all but Alaska and New York allow at least some public employees to serve. The majority of those states require public employees to take a leave of absence without pay when they are in legislative session.
Prior to the double-dipping controversy, that was not the case in Clark County. Its provisions included instances when an employee could get leave with pay from his job to serve in an elected position. Last fall, however, County Manager Thom Reilly approved revised guidelines that prohibit any compensation for county employees while serving in an elected office.
Las Vegas also allows its employees to hold elected office, but has never had a clear policy on pay issues for those employees while they are serving elsewhere. That is something the city intends to clarify after Sandoval issues his opinion.
And the state, according to an opinion issued in 2002 by the Legislative Counsel Bureau, cited instances where state employees could both take a leave with pay or without pay to serve in the Legislature.
But Peggy Kerns, director of the Center for Ethics in Government, which is part of the National Conference of State Legislatures, said she has never heard of an instance in another state where legislators received both legislative pay and wages from a public employer simultaneously.
"It would be hard to serve both functions at the same time," Kerns said. "There's also the perceived conflict of interest."
Perkins is advocating a uniform policy on pay issues for elected office holders with tax-supported jobs and said his preference would be for public employees to take leaves of absence to serve in Carson City.
"I want to get all the local governments and public employees together to see what works for everyone," Perkins said. "It has been shown that what works in Henderson works differently elsewhere. The majority of my city pay in past sessions has come from vacation time, but it is my intent not to do that again.
"My reputation is worth more to me than anything else. My reputation has been maligned by people who have suggested I didn't put in the time at work."
Whether public employees such as teachers, police officers and municipal workers should even be allowed to serve in the Legislature without losing their jobs has been debated in Nevada since the 1950s.
The debate has centered on the constitutional separation of powers among the three branches of government:
Legislative, which makes, amends and repeals laws.
Executive, which administers and enforces laws.
Judicial, which settles disputes over laws.
According to the Legislative Counsel Bureau, the Nevada Supreme Court has never ruled on how the separation of powers applies to legislators who are also public employees. The attorney general's office has issued several opinions, however.
In a string of attorney general opinions in the 1950s, the victories went to those who argued against public employees serving as legislators. It was determined in separate opinions that to preserve the separation of powers, a legislator could not also be a state driver's license director, a deputy county assessor or a school district employee. That's because those positions were considered to be part of the executive branch of government.
But those who argue against public employees as legislators suffered a blow in a separate 1967 opinion from then-Attorney General Harvey Dickerson, who stated that a fire chief from Sparks could become a state senator.
"Historically the requirement of the separation of powers was never applied to local government organizations," Dickerson wrote. "Thus, not only municipal corporations but counties, townships, school districts, drainage districts and the like are frequently organized with only a single commission with all the powers, legislative, executive and judicial, in the commission."
That argument was expanded in 1971 by then-Attorney General Robert List, who stated in an opinion that school boards could grant leaves of absence to teachers who wished to serve as legislators. That opinion quoted rulings from supreme courts in California, Colorado, Maryland and New Jersey, all of which held that their states' separation of powers did not apply to local government.
The ruling from List, who later became Nevada's governor, has been reviled by Harris and others who believe that the separation of powers is violated by any public employee who serves in the Legislature.
List said last week that he didn't know whether he would issue a different opinion today.
"My opinion certainly would have reflected the case law and statutes as they existed but that was 30 years ago," List said. "I can't tell you if there have been changes in the law."
In any event, his ruling paved the way for dozens of public employees -- teachers, police officers, firefighters, city and county employees and university and community college professors and support staff -- to became Nevada legislators.
List said he believes it should be left to voters to decide whether they wish to be represented by public employees, but he also expressed reservations about those who have won legislative seats.
"I am disturbed by the growing frequency of local government and public-sector employees participating in matters when they should be recusing themselves," List said. "Many of them are well educated and have made good candidates. But I think the public will be more focused on them at election time. A lot of these public employees will have a lot of explaining to do and have a tough road to travel to get re-elected."
The Legislative Counsel Bureau, in a lengthy 2002 opinion prepared for Assembly Minority Leader Lynn Hettrick, R-Gardnerville, concluded that a civil-service employee of the Nevada Transportation Department could serve in the Legislature while retaining his job. The opinion stated that based on state law both classified (civil service) and unclassified (at-will) workers could serve with their employers' permission.
The state employees could even get leave with pay under certain circumstances, but could not draw legislative pay and wages from their state employer simultaneously.
The ball is now in the hands of Sandoval, who has been asked by Secretary of State Dean Heller for a new opinion on the subject of public employees in the Legislature.
"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," Heller wrote in October.
Heller's request was prompted by a letter from Carson City resident John Wagner, who believes that executive-branch employees shouldn't be allowed to keep their jobs because they serve as legislators even when the Legislature is not in session.
Sandoval may be compelled to determine whether executive-branch employees include all public employees at all levels of government or just some of them. Sandoval's decision is expected no later than next month, but could come sooner.
Strict interpreters of state constitutions have argued that as many as half of the states -- including Nevada -- shouldn't legally be allowed to have public employees as legislators. These include constitutions that stipulate that legislators shouldn't hold any other "office of profit" in those states.
But in Alabama, which has such constitutional language, one lawmaker is director of government relations and chief of police at a state university. Utah has a municipal heavy equipment officer in its Legislature. Virginia has a program director of a regional jail, and Arizona and South Carolina allow teachers to serve.
A survey of 1998 financial disclosure statements prepared by the nonprofit organization Center for Public Integrity, a Washington government watchdog group, found that 20 percent of Nevada lawmakers or family members derived income from a government agency. Topped by New Jersey at 43 percent, 30 states ranked ahead of Nevada, including many whose constitutions seemingly place severe restrictions on legislators holding government jobs.
If public employees could no longer serve in the Nevada Legislature, the biggest effect would be on the Assembly. Led by Perkins, six of the seven Assembly leadership positions held by the Democratic majority belong to public employees, as do five of its 11 committee chairmanships. In the Senate, the minority leader, Titus, and assistant majority leader, Ray Rawson, R-Las Vegas, are public employees.
Among elected officials in Nevada, the most vocal critic of public employees serving in the Legislature has been Las Vegas Councilwoman Lynette Boggs McDonald. She argues that most public employees belong to the executive branch and therefore would have a conflict if they served in the legislative branch. She also believes the federal Hatch Act would prohibit people from engaging in political activity when they work for employers who receive federal funds.
And she also believes city and county employees would have conflicts of interest by serving in the Legislature because local governments need legislative approval to raise taxes and the salaries of their own elected officials.
"No one wants to be in a position of supervising an elected official," Boggs McDonald said. "I'm not saying someone can't seek elected office. But if you're a city employee, you need to find employment elsewhere."
Public-employee unions in Nevada defend current state practice in part because they say a government worker can bring a perspective to the Legislature about government that lawmakers from the private sector do not have.
"My view is it's either a citizen legislature or a professional legislature," said Scott McKenzie, executive director of the State of Nevada Employees Association. "If people say it's a conflict for public employees to serve, fine. But you have ranchers who sit on committees that deal with water rights and people on bank boards who decide banking issues, so it's hypocritical.
"A citizen legislature is filled with conflicts of interest."
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