Editorial: Showdown is set over eligibility

Tuesday, March 2, 2004 | 9:22 a.m.

In October of last year Secretary of State Dean Heller, the official in charge of Nevada's elections, asked Attorney General Brian Sandoval for a legal opinion on whether state and local government employees could serve in the Legislature. The stakes were high. There are four state legislators who are local government employees (including Assembly Speaker Richard Perkins, D-Henderson), five state legislators who are employees of the university and community college system (including Senate Minority Leader Dina Titus, D-Las Vegas, and Sen. Ray Rawson, R-Las Vegas, the chairman of the Human Resources Committee) and one employee who works for a state regulatory agency. On Monday Sandoval issued a split decision, saying that local government employees could serve in the Legislature but that employees who work in executive branch agencies could not. The opinion isn't binding but it undoubtedly will be cited in the inevitable court cases that will now follow.

In arriving at his decision, Sandoval said there wasn't consistency in how other states dealt with the issue of public employees serving in a state legislature and whether doing so violated the constitutional separation of powers. The Nevada Constitution states that government is divided into three branches -- legislative, executive and judicial -- and no one belonging to one of them can exercise any functions relating to either of the other branches. There isn't much Nevada case law on the topic, although there are a number of opinions from different Nevada attorneys general. Sandoval added that there are only three states that have constitutional separation of powers provisions similar to Nevada's -- Colorado, Maryland and California.

What's particularly important about California is that the Nevada Constitution was patterned largely after the Golden State's, and Nevada's separation of powers language is identical to that of California. Sandoval cites a California case from 1868, and those later opinions from other Nevada attorneys general, that local government (while it's a creation of state government) isn't part of state government and that these employees can serve in the Legislature. Sandoval's legal opinion adds legal heft to what common sense alone tells us: that local government employees shouldn't get caught up in this separation of powers debate at the state level.

Sandoval did find that state employees, who serve in the executive branch, would violate the constitutionally mandated separation of powers by simultaneously serving in the legislative branch as members of the Legislature. Sandoval, in his definition of the executive branch, includes the state university and community college system, but we believe this matter is much more complicated than he suggests. The university system is governed by the Board of Regents, whose members are directly elected by the people. Its employees ultimately report to the elected Board of Regents -- not to the executive, legislative or judicial branches -- a situation comparable to those employees who work for local governments. Sandoval should take another look at this matter and, even if he still believes university and community college employees are part of the executive branc h, he should explain in a follow-up opinion why they should be defined as members of the executive branch since their ultim! ate boss isn't the governor.

Sandoval, a Republican, was in a tough spot. Of the 10 state legislators who also are public employees, seven are Democrats. All of the local government employees are Democrats. Many opportunistic Republicans, in anticipation of Sandoval's opinion, were hoping to use it as a cudgel to hurt Democrats, especially the top Democrats in the Senate and the Assembly -- Titus and Perkins. While we believe that his decision on university and community college employees is too simplistic, and worthy of more consideration, at least it doesn't appear that partisan politics played a role in his final opinion. In light of the political stakes involved in the upcoming election in November, that in itself is saying a lot.

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