Last-minute resolution can’t fix ESA problems

CARSON CITY — Oh, that Nevada Legislature. They are a slippery bunch.

Moments after finishing up a special session to approve tax breaks for an electric car company, state Senate Republicans slipped a surprise concurrent resolution onto the agenda before adjourning.

The resolution — which risibly and clumsily attempts to patch some gaping holes in the legislation that established Education Savings Accounts — was not called for by Gov. Brian Sandoval. (Although the Legislature is prohibited from passing any bills not authorized by the governor in a special session, it is apparently not precluded from passing resolutions.)

The 15-page resolution, requested by Senate Majority Leader Michael Roberson, R-Henderson, was approved unanimously in the upper house by a voice vote, even though Democrats voted on party lines against the ESA bill during the 2015 session. In the Assembly, the concurret resolution passed on a party-line vote.

The resolution was obviously meant to quell a controversy surrounding ESA regulations contemplated by state Treasurer Dan Schwartz, who wants to waive a requirement that ESA accounts only be established for children who have attended Nevada schools for 100 consecutive days.

The only problem? The ESA law nowhere gives him the authority to do that.

So instead of backing off unsupported — and unsupportable — regulations, Roberson's resolution seeks to declare "legislative intent" to guide Schwartz, the Legislative Commission (a group of lawmakers that meets when the Legislature is not in session), and even courts, should it come to that.

Here's a look at some of the flaws in the document:

The resolution spends its first seven pages establishing that the Legislature has the authority to pass resolutions in special sessions, even if the governor neglected to put them on the official agenda. (And, true enough, the state Constitution limits the Legislature only with respect to "bills" in special session, not resolutions, which are non-binding and don't require a gubernatorial signature.)

Then, the fun begins.

On Page 8, the resolution frankly acknowledges that the ESA law "…does not state in express terms how the education savings account program is to be applied to pupils younger than 7 years of age who are not required by statute to attend school but who are eligible to be enrolled in a public school."

In other words, the Legislature is admitting that nothing in the ESA law grants the treasurer, the Legislative Commission or the courts the authority to waive the 100-day rule for kids younger than 7. That's a fairly candid acknowledgment, even if lawmakers try valiantly to wiggle out of it on the following pages.

According to the Legislature, since the state allocates money for all children — including those younger than 7 — to public schools for the purposes of education, the Legislature must have intended them to be able to use the ESA program without complying with the 100-day rule.

If this were the Olympics, lawmakers would win the gold for a leap of that distance.

"By including such pupils in the state's educational funding, the Legislature expressed its purpose and intent to allow those funds to be used by parents to establish education savings accounts…." the resolution reads. Except for the fact that the resolution just one page earlier admits there is no such language in the law! Shouldn't the best indicator of legislative intent appear in its text?

Similarly, the resolution declares on Page 10 that because the Legislature adopted the Interstate Compact on Educational Opportunity for Military Children in 2009, and because that compact encourages the removal of barriers to educational success, then it must have intended to waive the 100-day rule with respect to military kids.

That would be quite some act of prognostication, however, given the fact that the ESA law wasn't introduced or passed until 2015, and thus the 2009 adoption of the compact could not possibly have been intended to apply to ESAs.

And even if you were to argue that the 100-day rule could and should be defeated by the compact, you can't get around the fact that the rule treats military families no differently than other families similarly situated. It requires everyone (regardless of how recently they moved to the state, or under what circumstances they did so) to comply. It is no greater or lesser a barrier to educational success for a military family's child than it is for an insurance company executive's child, or an architect's child, or a casino worker's child. The law gives no waiver authority for any of those people, and lawmakers know it. (Schwartz himself grudgingly that this point is "technically correct" in a letter to the editor of the Review-Journal published Dec. 7.)

The resolution continues, apparently in anticipation of litigation over the pending regulations, to say courts have established that statutes should be interpreted liberally, in order to carry out legislative intent, "even if the statute is in artfully drawn or worded," and that "when a literal reading of the statute conflicts with the Legislature's purpose and intent in enacting the statute, the Legislature's purpose and intent should prevail over the literal sense of the words."

Yes, they actually wrote that down.

But we're not dealing with bad word choice or convoluted phrasing here; we're dealing with the lack of any legislative language authorizing waivers of the 100-day rule whatsoever. Instead of asking future courts to interpret legislative intent from the text, the Legislature is asking the court to read into the text words that aren't there! And this they cannot, and should not, do.

One would expect the Legislature at this point — as proof of its intent — to produce contemporaneous testimony from the minutes of the extensive hearings on the ESA law. Surely, somebody said something about waivers for military families and young children, right? But one would search this resolution in vain for a single such reference. In fact, the 15 pages of verbiage are only necessary precisely because lawmakers have failed thus far to produce any proof of their intent at the time they passed the bill.

Instead, they've engaged in a ham-handed, post-hoc attempt simply to declare their intent, after the opponents of the ESA law correctly criticized Schwartz for his utterly inventive regulating writing. It's like a lawyer who writes a contract that's later challenged in court, who writes an addendum addressing flaws in his earlier work, asking a judge to incorporate his more recent text into the original document! The legislative majority shouldn't be allowed to get away with it. The proper remedy is to amend the ESA law in the next regular session. Until then, regardless of this resolution, Schwartz's regulations will remain suspect and subject to attack.

— Steve Sebelius is a Las Vegas Review-Journal political columnist and co-host of the show "PoliticsNOW," airing at 5:30 p.m. Sundays on 8NewsNow. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or ssebelius@reviewjournal.com.