Tuesday was supposed to be the day of reckoning for North Las Vegas Constable Robert Eliason, who has worked for more than a year in his job despite not being certified as a peace officer, which the law requires.
But Eliason has filed a lawsuit in an effort to hold on to his $103,000-a-year job. And on Friday, a District Court judge granted a temporary restraining order preventing the Clark County Commission from doing what it should have done more than a year ago: replacing Eliason with somebody who’s qualified.
Until a July 28 court hearing, we won’t get to the heart of the issue. But why wait until then to dissect Eliason’s legal defense?
First, some background: The law says a person elected or appointed as a constable has one year to get certified as a category II peace officer by the Police Officer Standards and Training Commission. Eliason took office in January 2015.
But he wasn’t able to complete one portion of the physical test, and was dismissed from a POST academy. (In his lawsuit, his lawyers identify the reason as a “neurological condition,” but in a 2015 letter requesting a six-month extension to qualify, he said he was being treated for “an abdominal tear.”)
The POST commission granted Eliason’s request, which gave him until June 2016. But he missed that deadline, too. Instead of following the law — which directs county commissions to replace non-certified constables — the commission took no action. At the suggestion of Commissioner Marilyn Kirkpatrick, Eliason tried to get the law changed in the 2017 Legislature. Those efforts failed.
Two weeks ago, and only one year late, the commission put the item on its agenda, seeking to declare the office vacant. Eliason asked for a delay of two weeks, during which time he filed the lawsuit.
In court papers, Eliason makes two primary claims.
First, he says, the county lacks the authority to — as the July 5 agenda says — “declare pursuant to NRS 258.007, that Robert L. Eliason has forfeited the office of constable.”
And on this he’s right: The law in question says nothing about the county declaring his office vacant. But that’s because the law says that “if a constable does not comply with the provisions [requiring certification], the constable forfeits his or her office and a vacancy is created.”
In other words, the county has no need to declare the office vacant, because an uncertified constable has automatically forfeited the office. The only role for the commission is to fill the now-vacant office with another candidate.
Why the agenda wasn’t drafted to reflect that fact is a mystery, but it’s not the biggest mystery in this story.
Eliason’s lawsuit also contends the POST Commission’s executive director, Mike Sherlock, has ignored a request from Clark County for a medical waiver to allow Eliason to stay in the job. The commission voted 6-0 on April 5, 2016, to approve a petition to POST for that waiver, which is allowed under the Nevada Administrative Code.
Only one thing: That waiver doesn’t seem to exist.
Sherlock said that he’s never received any such request, either from Eliason or Clark County. “We never got a waiver request,” he said. “If we had, we’d have had put it on the agenda.”
Clark County can’t find it: A county spokesman said he couldn’t determine if it had ever been sent.
Eliason’s attorneys don’t have a copy.
So the lawsuit is asking the POST Commission to consider a request for a waiver that apparently doesn’t exist.
Those issues don’t change the bottom line: Eliason hasn’t obtained the required certification and thus has forfeited his office. The county’s failure to act last year compounded the problem, and created more legal issues.
And Eliason has just five more months to go before his public-employee pension gets a significant boost (pensions are based on a person’s highest 36 consecutive months of earnings, and he’s held the constable job for 31 months so far, although 12 of them have been legally questionable).
Someone needs to resolve this question fast. The commission didn’t do it. Carson City lawmakers didn’t do it. Now the courts must do it.
Contact Steve Sebelius at SSebelius@reviewjournal.com or 702-387-5276. Follow @SteveSebelius on Twitter.