Sunday, February 15, 2004
Copyright © Las Vegas Review-Journal

SEPARATION OF POWERS: The double-dipping issue

Constitution is clear: Public employees shouldn't be in the Legislature

At the City Council meeting of Jan. 7, our city manager placed a discussion item on the agenda as it relating to the formulation of a policy pertaining to city employees serving in the Legislature and in other elected offices throughout our state. Prior to November of last year, when what has been dubbed "doubledipping-gate" erupted at Stewart Avenue, I, like most citizens, didn't have a particularly strong opinion about the subject. I had been a public employee in the past myself, but had chosen to join the private sector after I became an elected official.

As a policy-maker for the fastest-growing city in America, the "doubledipping-gate" incident forced me to dissect and analyze this policy question as if I were preparing to defend a master's thesis. As such, my analysis has brought me to the conclusion that city employees are members of the executive branch of government and should resign their positions upon being sworn into the legislative branch. Below I outline the most salient arguments to support this policy position.

• There are only three branches of government in the Nevada Constitution: This is the heart of the entire debate - the separation of powers provision found in Article 3, Section 1 of the Nevada Constitution. There are only the legislative, the judicial and the executive branches of government. There are no mutations of the branches. There are no fourth or fifth branches, only legislative, executive and judicial. City employees work under the managerial authority of a city manager and are tasked with the implementation of policies and laws. In their capacity as employees, they neither write (legislative branch) nor adjudicate (judicial branch) the law. At the Jan. 7 council meeting, the city attorney concurred with my assessment that city employees are members of the executive branch. The only successful arguments to declare the separation of powers position moot is to argue either that the Nevada Constitution does not apply to local governments or its employees or that city employees are somehow members of the legislative branch.

• Home rule doesn't exist in Nevada: This point, in my opinion, is as compelling as the separation of powers argument. In Nevada, every city, county, township, and water district are political subdivisions of the state of Nevada. In the public employee debate, numerous reporters have pointed out that states such as Oregon and Texas, whose legislatures, like Nevada's, meet every other year, allow public employees to serve. Having lived in both Oregon and Texas, I can tell you that would be like comparing apples to zucchinis, as both are home-rule states and Nevada is not.

For example, if the city of San Antonio wanted to implement a city sales tax, the city council of San Antonio could place it on an agenda and vote it up or down, as the decision is autonomous from the purview of the Texas legislature. However, if the city of Las Vegas or Mesquite wanted to implement such a policy, we would first have to have a taxation bill introduced and passed in the Nevada Legislature. Even Mayor Oscar Goodman's proposal to implement a "strong mayor" form of government would first have to be passed into law by the Legislature before the city charter could be amended to implement such a policy.

Nevada counties are even more at the mercy of the Legislature as they have no charters. For example, if the county commissioners of Multnomah County, Ore., wanted to raise the salary of the sheriff, the county commissioners would simply place the item on an agenda and amend the sheriff's salary. In Nevada, the Clark County commissioners have to submit a bill request to the Legislature to adjust the salary for the sheriff. Hence, Nevada state legislators wield tremendous authority over cities and counties -- much more than their Texas and Oregon counterparts -- both during the legislative session and during the interim.

• We just might be violating the federal Hatch Act: In the current year budget, the city of Las Vegas received $40 million in federal funds. This amount represents nearly 11 percent of our general fund revenues. Because of "doubledipping-gate," the city is currently under investigation by the U.S. Department of Labor for potential Hatch Act violations for allowing our employees to participate in partisan activities where federal funds are involved. This practice of allowing city employees to serve in the Legislature puts at risk such programs as our homeland security initiatives, community development block grants, streets and highways funding, Meals on Wheels for homebound senior citizens, first-time homebuyer assistance programs, after-school programs, programs for the homeless, and the violence against women initiatives, to name a few.

• City code bans employees from serving on the Clark County Commission: City employees, as recently as the 2002 election cycle, have run for the Clark County Commission. If they had been successful in their quest, they would have been forced to resign from their positions, as city code prohibits them from collecting both a city salary and a county salary. This provision highlights why a universal leave of absence policy could never be applied to city employees who seek elected office. In theory, you could have two employees with the same job classification and pay scale working in the same department and both seeking political office -- one to the Legislature, the other to the County Commission. Employee A could take a leave of absence and return to his job after the Legislature adjourned. Employee B would be forced to resign. Employee B could then sue the city, citing the equal protection clauses found in the 14th Amendment.

It has never been my intention to become a spokesperson for this issue. My research, analysis and remarks come as a direct result of a policy crisis facing the city of Las Vegas. Although my view may very well be in the minority on the City Council, I have been amazed by the response I have received from everyday citizens who have been interested in my position. However, I can also fully respect the views of my colleagues that are contrary to mine. It's OK to agree to disagree. Although a handful of "Lynette-haters" have tried to discredit me on this issue for being a former public employee myself, I take pride in the fact they have failed to attack the arguments I have advanced.

We are at a crossroads in our history. Our state population now exceeds 2.3 million. However, one thing has not changed since the inception of our statehood in 1864: Article 3, Section 1 of the Nevada Constitution. All elected officials of this state have taken a sacred oath to defend the state constitution. Regardless of how the city ultimately decides this matter, all Nevadans will need to come to terms with what exactly it is we're supposed to be defending.

Lynette Boggs McDonald represents Ward 2 on the Las Vegas City Council.