Public employee case dismissed

Cy Ryan and Dan Kulin

Thursday, July 15, 2004 | 11:09 a.m.

CARSON CITY -- The Nevada Supreme Court on Wednesday rejected an effort to bar state employees from serving in the Legislature, but left the door open for future challenges to the practice.

The court did not decide whether legislators could also hold state jobs, instead dismissing the case largely on technical grounds. Some legislators said they expect the issue to be challenged again, either in a lower court or through a statewide initiative.

The decision issued Wednesday said the same separation of powers doctrine that the secretary of state and attorney general said should block state workers -- including university employees -- from serving in the Legislature, also prevented the justices from telling the Legislature who is allowed to serve.

The Nevada Constitution makes the Senate and Assembly the judges of the qualifications of their own members, the court said.

But the court said the dual service issue might be raised by filing a suit in District Court to challenge state employees who have executive powers and are serving in the Legislature. The state Constitution includes a separation of powers provision.

Attorney General Brian Sandoval, who brought the suit on behalf of Secretary of State Dean Heller, said Wednesday "the ultimate question" of whether employees in the executive branch of government are barred from the Legislature "remains unanswered."

Sandoval said he wanted to talk with Heller about whether to pursue the issue further.

"Before there was no Nevada law that told us the way to go," Sandoval explained.

Now the Supreme Court has provided a road map to address the issue, he said.

The court, in its unanimous decision, also said Heller's suit was defective in other ways: Heller had no legal standing to bring the suit and the legal action named the Legislature when the defendants should have been the Senate and Assembly; the suit was premature, because there would be no controversy until the 2005 Legislature convened; and that while Heller is the state's chief election officer his suit is outside the authority of his office because it seeks to oust state workers from the Legislature.

The court noted that even after an election, when a contest over a seat in the Legislature arises, Heller is powerless to act. Instead, the issue must be decided by the Senate or Assembly.

Heller could not be reached for comment Wednesday.

Allen Lichtenstein, general counsel of the American Civil Liberties Union of Nevada, said the court left itself and state lower courts open to eventually decide whether lawmakers can hold a job in the public sector.

"Ultimately I think the question will get resolved (by the courts)," said Lichtenstein, who supports the idea of allowing all public employees to serve in the Legislature.

"We believe the Nevada Constitution and case law indicates that there is no bar for all employees, for all governmental employees to be barred from serving in the Legislature, so ultimately we would like to see that principle expanded upon in the courts, if the proper case arises," he said.

Senate Minority Leader Dina Titus, D-Las Vegas, a professor at the University of Nevada, Las Vegas, and one of the legislators that stood to be most affected by the ruling, said the court opinion was "pretty damning."

The court "upheld the integrity of the citizen Legislature," she said.

"The decision slams the secretary of state," Titus said. "I loved the line (in the decision) that said 'Ironically, the secretary's attempt to have state executive branch employees ousted or excluded from the Legislature is barred by the same doctrine he relies on -- separation of powers.' "

But Titus said the issue will likely remain in the public eye. She pointed to the initiative being pushed by Republican activist George Harris that would ban public employees from serving in the Legislature.

"Now it's going to be more political," she said.

Harris said the Supreme Court Justices have "embarrassed themselves."

"They placated authority and tried to pass it off to someone else because it's a hot political potato," he said. "But that's OK because in November the people will get the opportunity to vote."

Harris said he has collected enough signatures to put the initiative on the November ballot, and plans to turn in those petitions Tuesday. Voters would have to approve the measure in 2004 and again in 2006 for it to be successful.

Assemblymen Jason Geddes, R-Reno, environmental affairs manager at the University of Nevada, Reno; Ron Knecht, R-Carson City, an economist with the Public Utilities Commission; and Mark Manendo, D-Las Vegas, a student recruitment specialist at the Community College of Southern Nevada said they were relieved by the court's decision.

"But I guess the debate will continue," Manendo said, echoing comments from his fellow lawmakers,

Assembly Speaker Richard Perkins, D-Henderson, said he's glad the Supreme Court ruled against the Attorney General's argument, but disappointed that the issue has not been put to rest.

"There's no clean resolution to the issue," he said.

Perkins said he expects to see another challenge to public employee legislators, possibly as soon as the next session begins in February.

Perkins is a public employee himself as a Henderson deputy police chief, but was not personally affected by Sandoval's opinion, which only said state executive branch employees shouldn't also serve in the Legislature.

However, Perkins' dual roles have brought him a federal challenge from the U.S. Office of Special Counsel, which filed a formal complaint against the speaker claiming he is violating the Hatch Act. The act prohibits most federal and some local government workers who have contact with federal funds from engaging in partisan political activity, such as running for office.

Assemblywoman Chris Giunchigliani, D-Las Vegas, who until her recent resignation from CCSN also stood to be personally affected by the court's decision, said: "Once again the Supreme Court has set aside politics and properly ruled on the Constitution."

Sen. Ray Rawson, R-Las Vegas, who resigned his position as director of the community college's dental hygiene program the same day Sandoval gave his opinion that executive branch employees should not also serve in the Legislature, said he agreed with the court's ruling. But he said the court's decision does not void his decision to resign.

Rawson said he taught anesthesia and head and neck anatomy for free so that he could "play by the rules" Sandoval set while not leaving the students without an instructor.

Rawson said he will return to private practice after wrapping up the two classes he has been teaching at the college on a voluntary basis.

Jim Richardson, a representative of the Faculty Alliance of instructors in the University and Community College System of Nevada, called it "a great ruling." He said there are "lots of valuable experienced people who work in the public." He said it would have been a great loss if they were barred from serving.

Richardson, who filed a friend of the court brief backing the rights of public employees, said the ruling "sounds like a slam dunk."

Scott MacKenzie, executive director of the State of Nevada Employees Association, said the ruling "makes a lot of sense." This is a citizens' Legislature and if there were restrictions, that would give proponents of a full-time Legislature a boost, he said.