Faced with a lawsuit from the Nevada Policy Research Institute alleging his two state positions violated the constitution, state Sen. Mo Denis announced this week he will resign his day job as a computer technician for the state Public Utilities Commission and retain his legislative position.
Mr. Denis — who is in line to lead the Democrats in the upper chamber during the 2013 session — says he will accept an Internet-related job with a local construction company, asserting the private-sector post will give him more flexible hours.
The decision reveals what one attorney involved in the case called the “slippery” task of getting the courts to enforce Article 3, Section 1 of the Nevada Constitution, which states, “The power 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. …”
Defenders of public employees who serve in the Legislature argue that while Sen. Denis clearly “exercises powers” of the legislative branch by voting in the Senate, he did not exercise “policymaking powers” of the executive branch merely by working at the PUC.
But the constitution doesn’t merely bar “exercising powers” in two branches at once. If it did, all it would mean is that the governor himself can’t serve in the Legislature or as a sitting judge. Instead, the constitution says Sen. Denis couldn’t “exercise any functions” of the executive branch while serving in the Legislature.
The risks of having a bunch of salaried state employees dominate the Legislature should be obvious. Not only would they have no incentive to hold down state payroll and pension costs, but gone would be any skepticism about state bureaucrats effectively running everything.
For several decades beginning in 1967, a series of bad attorney general opinions allowed widespread violations of the separation of powers doctrine. But in 2004, Attorney General Brian Sandoval — now our governor — issued an opinion holding that state workers should not be allowed to sit in the Legislature. All that’s needed now is a favorable court ruling to give that opinion the power of law.
Joseph Becker, chief legal officer and director of NPRI’s Center for Justice and Constitutional Litigation, responded to Monday’s news: “Sen. Mo Denis’ reported resignation from his executive-branch job with the Public Utilities Commission is a de facto acknowledgement that he recognizes that he has been violating the separation of powers clause.”
Because the parties sued — the state and the PUC, as well as Sen. Denis — have not yet formally responded, Mr. Becker would say only that his group is evaluating its options.
At this point, NPRI is to be congratulated for accomplishing an important goal at much less cost in time and money than anticipated. The group should now continue down the list, to see if the whole conflicted crew will scurry for cover. But if we had to bet on the identity of the next plaintiff to be represented by Mr. Becker’s outfit, we’d be looking for someone who’d like to apply to be a “specialty court coordinator” up Washoe way — the judicial-branch day job of state Sen. Sheila Leslie, D-Reno.