Lawsuit targets public employees serving in Nevada Legislature

CARSON CITY -- A conservative think tank filed a lawsuit Wednesday over what it calls a "long-standing violation of the state constitution," public employees serving in the Legislature.

But in its lawsuit, the Nevada Policy Research Institute only challenges the right of state Sen. Mo Denis, D-Las Vegas, to serve in the Legislature when his primary employer is the state Public Utilities Commission.

Joseph Becker, lawyer for the Las Vegas-based institute, said during a news conference and in news releases that nine other public employees who serve in the Legislature also should be required to give up their non-legislative jobs.

He seeks an injunction to force Denis, the likely Democratic leader of the Senate in the next legislative session, out of his Public Utilities Commission job.

To force other legislators out of their public jobs, the institute would have to secure similar injunctions or have them leave voluntarily.

Becker said the lawsuit was not politically inspired. However, eight of the 10 legislators he thinks should leave their non-legislative jobs are Democrats, some of them known for supporting liberal causes.

"We aren't even asking for him (Denis) to leave the Legislature," said Becker. "We are questioning his serving as a civil servant."

THE ARGUMENT

In the lawsuit filed in Carson City District Court, Becker said that the constitution's separation of powers doctrine prevents Denis, a computer technician, from serving in the Legislature while also being an employee in the executive branch of government.

In support of his argument, Becker cited the separation of powers clause: "The powers of the government of the state of Nevada shall be divided into three separate departments, the Legislature, 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."

Contacted in Las Vegas, Denis said he was aware of the lawsuit and would contact his legal advisers and issue statements later. He said his mind was on other matters since he was in the hospital awaiting the birth of his first grandchild.

Unlike Denis, the other nine other legislators are not employees of the executive branch of state government but people who work for local governments, school districts and the university system. As legislators, however, they approve laws and expenditures, including funds for salaries, that could affect themselves and their employers.

"We have 63 legislators, and something close to 20 percent of them are affected by this provision," said Becker, director of the policy institute's Center for Justice and Constitutional Litigation.

PAST CHALLENGE FAILED

This isn't the first time the issue has been litigated. Becker noted that the state high court in 2004 threw out a lawsuit filed by then Secretary of State Dean Heller, a Republican, in which he sued the Legislature for including executive branch workers such as then Assemblyman Ron Knecht, a PUC economist. The court rejected the case because the constitution lets the Legislature set qualifications of members.

In its ruling, the court said that someone who would be affected by a legislator's civil service employment would have to bring a challenge.

Consequently, the institute filed the lawsuit on behalf of William Pojunis, an unemployed Las Vegas computer technician. Becker, who told Pojunis not to answer reporters' questions, said Pojunis wants to apply for Denis' PUC job.

He said the man has 25 years of computer experience. But Pojunis, 66, has been unemployed since 2007, and Becker admitted that he has not applied for Denis' job because it is not open.

"It is not open until we can force it open," Becker said. "He is seeking employment."

Denis has worked for the PUC since 1993. At Becker's direction, Pojunis refused to identify his political party but he did say he has never been involved in a political campaign.

LEGISLATURE NOT NAMED

In the lawsuit, Becker also names the state and the PUC. He does not name the Legislature itself, a move to prevent Denis and his lawyers from arguing the constitution allows the Legislature to set qualifications for its members.

In response to questions, Becker said it does not matter that the only power Denis exercises in the PUC is fixing computers, and he has nothing to do with setting utility rates.

Neither he nor other policy institute staff members could identify any specific examples of Denis acting inappropriately by using his legislative power to benefit the PUC.

"I would say by duly holding two positions, one in the legislative branch and one in the executive branch, Mr. Denis is acting unconstitutionally and improperly," Nevada Policy Research Institute President Andy Matthews said.

Becker said the separation of powers clause was adopted by the state's founding fathers to prevent "oppressive government."

"You don't want the same people judging and legislative and executive," he said.

The 2004 litigation over state workers serving in the Legislature was handled by the attorney general's office.

Then-Attorney General Brian Sandoval, now governor, wrote an opinion that the state constitution bars any employee from serving in the executive branch of government and while serving in the Legislature. But Sandoval also said the prohibition does not apply to local government workers who are legislators.

Contact Capital Bureau Chief Ed Vogel at evogel@reviewjournal.com or 775-687-3901.

Trending topics:

• Carson City
• Nevada Legislature
• NPRI lawsuit
• public employees

Comments

Note: Comments made by reporters and editors of the Las Vegas Review-Journal are presented with a yellow background.

1. Jack.Webb Dec. 1, 2011 | 8:45 p.m. Report Abuse

   Meet Karen Gray
   Education Researcher [CHORTLE!]
   
   Karen Gray is an education researcher at NPRI and has been with the Institute since June 2008. Karen has an associate's degree in legal assistance from the Community College of Southern Nevada (now the College of Southern Nevada).
   
   That's it! It's a "think tank"! Yeah! A "think tank"! Dat's da ticket!

2. Jack.Webb Dec. 1, 2011 | 8:18 p.m. Report Abuse

   Have a gander at the credentials of the characters comprising this self-described "think tank", the "Nevada Policy Research Institute".
   
   http://www.npri.org/about/npri-staff
   
   CHORTLE!
   
   We ain't talkin' Brookings or the RAND Corporation here. Not a PhD in the bunch, only one or two master's, and some of these clowns don't even have a bachelor's.
   
   One "thinker", however, is purported to make a mean batch of chocolate chip cookies.

3. n7v.blogspot.com Dec. 1, 2011 | 3:03 p.m. Report Abuse

   If we had small government, regular sessions would last four days. Like a business conference. Even guys as busy as Wynn could take time off from work to serve. And you know what? If he sponsored obviously self-interested legislation to abolish the gaming tax I would be ALL FOR IT.
   
   But since we have BIG Government every two years we have to endure 100 day debates over who should be allowed to text while driving and what sort of special privileges LGBT's deserve, though there never seems to be enough time for the legislature to fulfill their constitutional duty to draw district maps.

4. n7v.blogspot.com Dec. 1, 2011 | 2:53 p.m. Report Abuse

   As I've posted numerous times, the prohibition against government employees serving in the Legislature should be *extended* to those whose "domestic partners" are government employees. That's right. Traditionally, marrieds were looked upon as inseparable units.
   
   We should even bar government contractors (and their DPs) from serving. In fact, all the above mentioned should even be DISENFRANCHISED. The way we void voting rights for prison inmates serving time, traitors, certified crazies, ie those who don't have our best interests at heart.
   
   There must be some significant number of public employees who serve in the Legislature (like Horsefurd but by no means exclusive to DEMs) whose spouses are also public employees. DOUBLE disqualification.

5. LiveAndLetLive Dec. 1, 2011 | 2:18 p.m. Report Abuse

   We have a "citizen's legislature," not a full-time legislature. The citizenry includes private and public sector employees. Unless we have a full-time legislature, the legislators need to have another full-time job. We can't have it both ways, in my opinion. Now, you don't think anyone is playing politics here, do you?

6. MIKE VEGAS Dec. 1, 2011 | 1:55 p.m. Report Abuse

   STIRRING THE POT. REMEMBER THESE FOOLS WHEN IT'S TIME TO GET SERIOUS. OH IT IS TIME TO BE SERIOUS.

7. Couch Potato Dec. 1, 2011 | 1:52 p.m. Report Abuse

   When lobbyists visit Clark County commissioners, they must sign in at the reception desk. Then within five days, they have to file disclosure forms that say which commissioners they saw and what they talked about.In 2008, the Sun tried to match the number of filed disclosure forms with the names of lobbyists on the sign-in sheet.
   
   Over a two-month period, lobbyists signed the sheet 107 times, but filed only 41 disclosure forms.Why are you bringing it up now?Because union contracts are a big issue in county government. The county government's biggest fight is with the firefighters union, which has declared contract talks at an impasse.

8. Jack.Webb Dec. 1, 2011 | 1:47 p.m. Report Abuse

   "n7v.blogspot.com wrote on December 01, 2011 01:17 PM: I have NO problem with private sector people serving in the Legislature."
   
   Nobody cares about Bloggy's problems, or a claimed lack thereof.
   
   Bloggy appears incapable of fathoming the fact that it is just not that important. Sorry, Bloggy.
   
   Now, will you finally stop preaching at us?

9. n7v.blogspot.com Dec. 1, 2011 | 1:17 p.m. Report Abuse

   I have NO problem with private sector people serving in the Legislature. Indeed, a legislature composed *exclusively* of private sector workers is the way it's supposed to be.
   
   Of course such persons could push for legislation favorable to their industries (after all, that's what government is all about), but so what?
   
   Miners might be able to increase their domestic profit margins, but that won't drive spot (wholesale) prices higher.
   
   Ranchers might be able to ensure cheap grazing for their herds, but again, I won't pay any more for a Big Mac.
   
   In any case, the real danger to taxpayers is BIGGER Government. So long as the Legislature is dominated by competing *private* interests, it's going to be hard for one special interest to get unrequited cooperation from another. Even log-rolling becomes more difficult because Legislartors know that BIG Goverment is their common enemy.
   
   Public employee Legislators almost always *vote* for BIGGER Government. We have nothing to show for except the HIGHER taxes we're forced to pay. The more the Legislature is controlled by such folks (with corresponding shrinkage of the small government caucus) the more likely it is that taxes are going to go UP.
   
   BTW. Please don't quote the Hatch Act. That's just BIG Government, special interest legislation. Article 1 §6 contains a clear prohibition against federal employees serving in Congress. Interestingly, that same USC specifically *restricts* residents of DC (generally, federal government sympathizers) from having any voice in setting the policies which control that goverment.

10. george. Dec. 1, 2011 | 12:45 p.m. Report Abuse

    Ranchers? Yes.
    Chamber of Commerce members? Yes.
    Need to be more specific about the "boards". Public or private?

Read All Comments