Conservative group sues to ban public employees from the Legislature

By David McGrath Schwartz

Wednesday, Nov. 30, 2011 | 12:25 p.m.

A conservative think tank filed a lawsuit today with the ultimate goal of preventing public employees from serving in the Nevada Legislature.

The Nevada Policy Research Institute’s lawsuit focuses on state Sen. Mo Denis, D-Las Vegas, who works as a computer technician for the Nevada Public Utilities Commission, which is under the executive branch of state government. He also serves in the Legislature, which passes budgets and sets policy for state government.

Speaking outside a Carson City courthouse, Andy Matthews, president of the institute, said: “The same person should not be judging policy in the Legislature and executing it in the executive branch." Having that much power concentrated in one person’s hands “leads to oppressive power.”

While the suit focuses on Denis, who is in line to lead Senate Democrats, the implications could be much larger, said Joseph Becker, chief legal officer and director of the think tank’s Center for Justice and Constitutional Litigation, which is the entity filing the suit.

According to the group, several of the state’s 63 lawmakers work for a public entity, including school districts and local governments, and should be prevented from serving both their day jobs and in the state’s part-time Legislature, which meets 120 days in odd-numbered years.

Of the 10 lawmakers identified by the institute as working for a public agency and serving in the Legislature, eight are Democrats and two are Republicans.

Denis has regularly disclosed his position with the PUC before voting in the Legislature on matters that affect state workers’ pay and retirement benefits. He could not immediately be reached for comment.

Lorne Malkiewich, director of the Legislative Counsel Bureau, which staffs the Legislature, said the level authority that a lawmaker holds in an executive branch job determines whether it violates the separation of powers called for in the constitution.

“In general, our position has been whether you are exercising the power of the executive branch,” he said. He used the hypothetical example of a janitor who cleans garbage cans in Nevada Supreme Court, the Legislature and Capitol buildings. “Are they exercising a function, or merely just working for them?” he said.

Proving that local government employees such as teachers and county workers should also be prohibited from serving becomes more difficult, Malkiewich said. Local governments are separate entities from state government.

Becker, the attorney suing in the case, said he believed it would apply because local governments are created by the state.

Article 3, Section 1 of the Nevada Constitution reads: “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...”