County must reinstate worker

Wednesday, June 2, 2004 | 11:03 a.m.

A federal arbitrator reinstated the Clark County job of Kathy McClain, a county employee and assemblywoman fired seven months ago for "double-dipping" from both county and state wages.

Arbitrator David Heilbrun found that McClain, a senior advocate in the Parks and Community Services Department, violated county policies by receiving sick pay or regular working wages while serving in last summer's tumultuous session of the Legislature. Heilbrun also ruled that McClain's violations did not rise to the level of a "permeating intent to defraud, as opposed to grasping at a careless opportunity for gain."

While reinstating McClain, Heilburn imposed a four-month suspension without pay on the Democratic assemblywoman. The county now owes McClain for back pay dating to Feb. 27.

It's unclear when McClain will return to work, but she could start as soon as Monday.

McClain and Assemblyman Kelvin Atkinson, a county employee in the same department, were fired the same day for similar offenses. The instances at the county and similar incidents at the cities of Las Vegas and Henderson helped propel the issue of public employees serving in the Legislature to the Nevada Supreme Court.

Nevada Attorney General Brian Sandoval, a Republican, has argued that public employees should be barred from serving in the Legislature because it represents a violation of the constitutionally mandated separation of powers.

While both those who support the status quo and those who want to bar public employees from serving in the Legislature wait for the Supreme Court to issue its decision, a prominent advocate for the enforced separation said the arbitration decision strengthens his case.

"That's great," said George Harris, chairman of the ultra-conservative Nevada Republican Liberty Caucus. "When the news gets out the public's going to go crazy.

"The message is that it's okey-dokey to steal from taxpayers, and you can steal from them, and then when we catch you, you can appeal and get your job back."

In the private sector, McClain would have lost her job and would not be given a second chance, he said.

Vicky Hedderman, Service Employees International Union Local 1107 president, said the arbitrator's decision vindicates McClain, who is a member of the union.

"SEIU took on this case because we knew that Kathy was innocent of the charges," Hedderman said. "We believe the case against her represents a witch hunt that is taking place in Nevada right now against all public-sector workers.

"Our union stands ready and able, as this case demonstrates, to defend the right of public-sector workers to hold public office and represent the interests of Nevadas working families in the state Legislature."

McClain and her Sacramento-based attorney Brook Pierman did not immediately respond to questions about the case.

Atkinson, whose attorney filed final briefs Tuesday in his separate arbitration, said the decision bolsters his case.

"I was optimistic from the beginning that we both will be reinstated," said Atkinson, who, like McClain, is running for re-election. "I think it will be the same in my case.

"Hopefully I won't get docked four months," he said.

Atkinson said the arbitrator could release a decision in his case within a month.

County spokesman Erik Pappa, however, said Atkinson's optimism might be misplaced.

"You shouldn't read anything into Kelvin's case based on this decision," Pappa said. He said the circumstances in the cases, while similar, are not identical, and Atkinson has a different arbitrator.

The arbitration process is a right of appeal guaranteed under the county's collective bargaining agreement with the Local 1107.

Clark County Manager Thom Reilly said he was "a little disappointed" by the decision but noted that the arbitrator did find wrongdoing by McClain.

"An unprecedented suspension underscores the whole gravity of the situation," Reilly said. "It was grave enough to warrant severe discipline."

The county could not, under the existing contract with the workers' union, impose a suspension of that length, Reilly said. The county has imposed suspensions of up to a week.

"We could never have leveled a four-month suspension, or a three-month or a two-month suspension," he said.

Reilly said the suspension, coupled with a more clearly articulated county policy on service in the Legislature, should ensure that the issues do not come up again. Reilly's office established the new policy when it became clear that McClain and Atkinson had taken sick time while working in the Assembly.

"Anyone thinking of doing this again, I don't think they will travel down that road," Reilly said. "Anyone who serves in the Legislature has to take a leave of absence. End of story."