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.