Vin Suprynowicz

Why are there so many executive and judiciary branch government employees serving in the Nevada state Legislature, despite the fact Article 3, Section 1 of the Nevada Constitution 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 except in cases herein expressly directed or permitted”?

The first reason is often overlooked: The nature of their jobs makes it easy.

So happy are government department heads, at any level, to have “one of theirs” in the Legislature — where they can carry bills favored by their bosses, block bills opposed by their bosses, at the very least keep their bosses posted on what’s happening — that it’s long been routine for the legislator/government employee to be granted a “leave of absence,” often with full pay and no loss of pension, benefits, or seniority.

Few private sector workers could count on such employer largesse — or even their job would be waiting for them on their return. And for someone who actually owns and operates a full-time private business, with the possible exception of seasonal agriculture, taking five months off, every other year, is almost unthinkable.

In fact, many lawmakers who had private sector jobs when they first ran for office soon after election get “hooked up” with a curious new job invented just for them, which allows a government entity of other powerful special interest to, in essence, buy and own a legislator.

The second reason such people are allowed to “serve” in Carson City, of course, is that the public employee unions finally got to our courts and state attorney generals, convincing them that this provision of the state Constitution need no longer be meaningfully enforced.

As the “separation of powers” provision was understood from 1864 till at least 1964, no teacher or other employee retained or employed by a government school or college or university which receives substantial state money, no police officer or fireman — no one who works for any other branch of government at any level or in any capacity, and thus views tax hikes as “revenue enhancements” — is be allowed to hold elected public office in Nevada, and especially not seats in the Legislature.

“The concentration (of the powers of government) in the same hands is precisely the definition of despotic government,” wrote Thomas Jefferson in 1782. “It will be no alleviation that these powers be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one.” (Th. Jefferson, “Notes on the Virginia” Q.XIII, 1782. ME 2:162.)

In 1952 then-Nevada Attorney General W.T. Mathews, a Democrat, told state Sen. John Murray of Eureka County he couldn’t continue working for the DMV while serving as an elected lawmaker. ”Executive class includes all persons who have functions in the administration of public affairs,” Mathews wrote.

Two years later, Mathews told two other elected officials from Eureka county who held jobs with the Nevada Highway Department the same thing: “We think such practice would ignore if not in fact be violative of the above quoted constitutional provisions.”

Mathews cited an Indiana decision upholding their similar provision: “If persons charged with official duties in one department may be employed to perform duties, official or otherwise, in another department, the door is open to influence and control by the controlling department.”

So far so good.

Nevada’s next attorney general, Harvey Dickerson, Democrat, initially saw the provision the same way. He ruled a member of the state Assembly could not at the same time hold a position in LOCAL government. Since counties, cities and school districts are creatures of the State, he wrote (citing some of the same precedents as had Mr. Mathews), an assemblyman could not also receive remuneration as an employee of the Hawthorne Elementary School District.

“The school districts are political subdivisions of the state government and part of the executive branch,” Mr. Dickerson wrote. “An employee of the school district is exercising a function appertaining to the executive branch. If that employee is at the same time an Assemblyman, the activity is in conflict with the above quoted constitutional provision.”’

Mr. Dickerson noted legislative service is not really just a few months every two years; lawmakers can be called into special session at any time, and frequently serve on interim committees “all during his two-year term.”
The question was raised whether the assemblyman’s school district job — janitor — really constituted a “public office.” The AG responded that the separation-of-powers prohibition specifically applies to mere EMPLOYMENT in one branch of government, if the person exercises powers in another.

THE PROTECTION ERODED

But in 1967, for reasons never disclosed, Mr. Dickerson changed his mind, holding a local fire chief (from the city of Sparks) could serve as a state senator.

And by 1971, under newly elected Attorney General Robert F. List, the lid was blown off the separation doctrine completely, with Mr. List holding you could “exercise powers” as a legislator so long as you didn’t “exercise powers” in one of the other branches — in essence, so long as you “just worked there.”

In effect, this means virtually any government employee short of the governor and a few other statewide elected officials could probably serve simultaneously in the Legislature — and that legislators, once elected, can be offered jobs and thus “captured” by virtually any government agency at any level — something that now happens with some frequency.

On March 1, 2004, Brian Sandoval, then Nevada’s Republican attorney general, attempted to turn the tide, bravely ruling that five state employees — including now-Clark County Commissioner Chris Giunchigliani (who then worked for the Community College of Southern Nevada) and UNLV Professor Dina Titus — were violating the state constitution by serving in the Legislature.

But that ruling was not considered to have the force of law unless ratified by the state Supreme Court. So Mr. Sandoval asked the court to consider the five cases on which he had ruled — and the cases of four local government employees, including high-ranking Henderson police officer Richard Perkins and high-ranking North Las Vegas fireman John Oceguera, as well.

Unfortunately, the heavily politicized state Supreme Court declined to act, with the result that Mr. Sandoval’s bold ruling had no effect, and remains widely ignored.

Thus was the protection destroyed, leaving Nevadans in a position where our employees are now our bosses, voting themselves largesse from our checkbooks.

Are we to believe a professor at one of the state universities (whether “on leave” or not) can vote on a state budget or on state tax rates, oblivious to the fact that more revenue and more spending may mean a bigger budget for his employer — while a spending reduction could lead to layoffs on his campus, in his department, possibly even in his receiving a layoff notice, himself?

Back in January of 2003, Steven Miller of NPRI wrote: “The successful neutralization of the Nevada constitution’s separation-of-powers clause increasingly gives citizens of the Silver State a skewed and distorted political system. People who are supposed to be our employees now increasingly write the laws and tell the rest of us what to do. In the 1999 Nevada Legislature, 44 percent of the members of the state legislature — 28 of 63 — also held government jobs or were married to government employees. In the 2001 Assembly, a public employee occupied every position of power:”

Back in 1999, Assembly speaker Richard Perkins was a Henderson Deputy police chief; Majority Leader Barbara Buckley was executive director of Clark County Legal Services; Morse Arberry, who chaired the powerful Ways and Means committee, was a neighborhood services administrator for the City of Las Vegas; Wendel Williams, chair of the education committee, was a management analyst (whatever that is) for the city of Las Vegas, government-school teacher Chris Giunchigliani chaired the Elections, Procedures & Ethics Committee.

“She also was the original author of the resolution that eventually set up the Governor’s Task Force on Tax Policy and directed it to find some major new taxes to impose on Nevadans,” Mr. Miller notes, in “Nevada’s Chronic Overspending and How to Deal With It.”

“Such concentration of state power among public employees is a major reason why Nevada taxes and fees have gone up virtually every biennium over at least the last 22 years,” Mr. Miller noted. “Not only are public employees themselves tax consumers, with a distinct conflict of interest, but the political activists among them tend toward a sectarian ideology that always calls for ever-greater government spending and on many issues is essentially indistinguishable from socialism. …

“When such a narrow group is allowed to control one house of the Legislature, it means that great public resources — financial and otherwise — become dedicated to an agenda that is permanently hostile to taxpayers. The maneuvering over the years of Assemblywoman Giunchigliani — both tactical and strategic — to always increase Nevadans’ taxes is a perfect example.”

Term limits have ended the legislative careers of all those above-named lawmakers — though Ms. Giunchigliani is still on the scene as a Clark County Commissioner, now running for mayor of Las Vegas.

HOW ARE WE DOING, NOW?

So what about Carson City today?

In attempting to update Mr. Miller’s statistic — 44 percent of the members of the 1999 state legislature, 28 of 63, holding government jobs or married to government employees — the thing I find most amazing is that he could settle on a fixed number.

Often, there’s not as clear a line to be drawn as we might first imagine.

Go to the Assembly Web site, at http://www.leg.state.nv.us/Assembly/Current/Assembly/alist.cfm — or the equivalent site for the state Senate: http://www.leg.state.nv.us/senate/Current/Senators/slist.cfm. Open the biography of Las Vegas state Sen. Moises (“Mo”) Denis. It will tell you he’s a “computer network technician.”

Almost certainly a private sector job, right? Unless, of course, since his election to the legislature he’s begun doing his computer work for … the state Public Utilities Commission.

Check out Carson City Republican Ben Kieckhefer. It says he’s in “Communications.” Radio, TV, public relations, whatever that means, at least he’s not an employee of the executive branch of state government … unless, of course, he’s spent most of the past three years as press secretary for Gov. Jim Gibbons, before moving over to do “communications” for the state Department of Health and Human Services!

I called the Kieckhefer home last week to ask what Ben is doing now.

Although he’s not a lawyer, he apparently now works for the Reno law firm of McDonald Carano Wilson, established in 1949 by United States Senator Alan Bible, which recently produced District Court Judge Deborah Schumacher, among others. So that’s not a government agency … though it’s clearly an outfit that’s been capitalizing on its “government connections” for 60 years. Would Mr. Kieckhefer hold his “day job” there if he didn’t hold a legislative seat?

Nonetheless, we’ll list Sen. Dennis as a “government employee,” and Mr. Kieckhefer as “not.”

Other than Sen. Denis, what current members of the legislature would clearly be barred from “double-dipping” if Article I, Section 3 were enforced today as it was from 1864 to 1964?

State Sen. Ruben Kihuen, D-Las Vegas, is a diversity programs manager at the College of Southern Nevada, a state college. Sen. Sheila Leslie, D-Reno, is a specialty court coordinator in the judicial branch, up north.

Assemblyman Steven Brooks works for the city of Las Vegas as a “city council liaison.” In fact, it was the threat that he might have to take a leave of absence from that job (oh, the horror) to run for the assembly that led fellow Assembly member Tick Segerblom to submit a bill this session to make sure no government employee will ever be so inconvenienced, again.

“He didn’t mention my name,” in the bill, Mr. Brooks laughed when I called him, “It’s just to make sure every citizen can exercise his constitutional right to run for office.”

Perhaps Mr. Brooks might want to read Article 3, section 1, a bit more closely.

Democratic Assemblyman Marcus Conklin, District 37, lists on his 2011 financial disclosure form two sources of income: Prime Contracting Inc. and the College of Southern Nevada. As he failed to return numerous phone calls and e-mails seeking clarification of what he does for the state college and how much he’s paid, we’ll list him as a government employee.

Olivia Diaz, D-North Las Vegas, is a government elementary school teacher.

Assemblywoman Lucy Flores, who until recently was active in UNLV’s diversity police, graduated Boyd Law School but does not appear to be a lawyer; her Web page now lists her as the principal of “Latina Strategies.” She did not return phone calls seeking clarification on her income sources, but her financial disclosure report, filed with the secretary of state Jan. 18 of this year, lists her sole source of income as “Nevada System of Higher Education.” We must assume she remains a government employee.

Scott Hammond, R-Las Vegas, is also a Clark County teacher, as is Melissa Woodbury, R-Las Vegas, daughter of former County Commissioner Bruce Woodbury. John Oceguera, D-Las Vegas, is a North Las Vegas assistant fire chief. Assemblyman Jason Frierson is a Clark County deputy public defender.

Assemblywoman Dina Neal, estranged daughter of former state Sen. Joe Neal, lists herself as a “contract administrator and adjunct professor.” According to her financial disclosure report, she actually works for former City Councilman Frank Hawkins Jr.’s “Community Development Programs Center of Nevada,” which rents its premises from a firm owned by Frank Hawkins Jr., and whose board of directors — prominently featuring Frank’s mom — “constantly scrutinizes” this non-profit’s relationship with Mr. Hawkins’ construction firm, which serves as general contractor on all their low-income housing projects.

Lots of government money there. But does Ms. Neal hold a “government job”? Her 2011 disclosure form lists “College of Southern Nevada” as a second income source. Adjunct professors usually don’t make a lot, but the form says “Yes.”

Then there’s Assemblyman Kelvin Atkinson, who could be featured on the poster for government employees serving in the Legislature.

One old legislative hand, speaking on condition of anonymity, says “He changes agencies every couple of years. Every two years the non-essential government services get together and draw straws, and whoever draws the short straw gets Kelvin.”

On April 28, Steve Miller of NPRI briefly summarized Mr. Atkinson’s recent employment history: “In late 2003, Clark County fired Atkinson from his position as a parks department management analyst. His supervisors had learned that the assemblyman, during a special legislative session, had been claiming sick-leave pay for days in Carson City when he was also voting on tax bills, eating Chinese food with other legislators and drawing a legislative salary.”

The Review-Journal reported in 2003 that Atkinson continued insisting publicly that he had indeed been sick. However, a transcript of the lawmaker’s appeals hearing that same month with the county human-resources director raised new doubts.

“I made a serious error in judgment when I requested sick time rather than vacation time during the legislative session,” Atkinson told the human resourses director. “I wish I could go back and change that, but of course, I cannot.”

In May 2004, however, testifying before an arbitrator, “Atkinson was again claiming he’d been sick on the days in question,” Mr. Miller points out.

Arbitrator Ronald Hoh then ordered Clark County to reinstate Atkinson and award him back pay.

Hoh’s rationale: “Where an employee is guilty of a rule violation, but a supervisor is also at fault in some respect in connection with the employee’s conduct, arbitrators will often reduce or set aside the penalty assessed by management.”

Clark County’s then-manager, Thom Reilly, called Hoh’s decision “mind-boggling. … The message is, if you can hide it and keep it from your supervisor, you’re fine.”

Supporting witnesses for Atkinson before the arbitrator, the assemblyman told the Review-Journal, had been fellow Assembly members John Oceguera and Morse Arberry. Both backed Atkinson’s statement that he had been ill.
(Arberry, who held local government jobs while serving in the Legislature, famously attempted to land a $10,000-a-month job lobbying the Legislature on behalf of local judges when he was term-limited out of Carson City last year.)

Clark County lobbyist Dan Musgrove, on the other hand, testified that Atkinson had seemed fine to him when all four individuals had dined at the Chinese restaurant.”

“Oceguera today, of course, is the Assembly speaker,” Mr. Miller notes, “as well as a member of the Commerce and Labor Committee. He also is a deputy fire chief for the North Las Vegas Fire Department and, as such, a recurring subject of questions about whether he would even be in the Legislature if Article Three of the state constitution — its separation-of-powers provision — were enforced.”

In 2003, the Review-Journal reported Mr. Oceguera “still owes hundreds of hours of work in shift trades with colleagues” from the special arrangement which allowed Mr. Oceguera to serve in the Legislature while keeping his fire department job.

With Mr. Oceguera sitting in the Legislature, his powerful position allowing him to oversee what state funds flow to the city of North Las Vegas, should we hold our breaths waiting for anyone in that city’s administration to challenge his “traded time” arrangements?

SOME CONFLICTS NOT SO CLEAR

Thirteen direct government employees out of 63 legislators sounds like a considerable reduction in such concentrations of power, with the conflicts of interest such “double-dipping” always bring — down to a “mere” 20 percent.

But there are a lot of gray areas, from lawmakers with spouses who work for the government, to retired government employees drawing state pensions who have an obvious conflict of interest when the Legislature regularly votes to pump in current tax revenues to shore up the underpinnings of the Public Employee Retirement System, to what one old legislative hand calls “the subtle, complex interplay between state and local government, given Nevada’s lack of home rule, which gives guys who’ve been in local government for years and years, when they go to the Legislature, a tendency to be more sympathetic to government than to the taxpayers.

“The key ‘tell’ is that they join the Nevada Association of County Organizations,” our source says.

As examples, the old legislative hand named four Republicans: 16-year Eureka County Commissioner Pete Goicoechea; longtime Elko City Councilman and County Commissioner John Ellison; former 12-year mayor of Yerrington Tom Grady, and Cresent Hardy, who served five years on the Mesquite City Council after an earlier seven years as director of public works for the City of Mesquite.

Mr. Ellison lists himself as an electrical contractor. Mr. Goicoechea is a rancher. Tom Grady describes himself as a retired banker; Mr. Hardy as a general engineering contractor. Article 3, Section 1 would not bar any of them from serving.

Our source did not name 12-year Douglas County Commissioner Kelly Kite, nor 12-year Carson City Commissioner Pete Livermore, both Republicans.

State Sen. Shirley Breeden is a retired teacher living on a PERS pension. Sen. David Parks is presumably drawing a similar 70-percent pension after a 30-year government career that saw him rise to become assistant director of the Regional Transportation Commission.

Assemblyman Paul Aizley recently retired as a math professor at UNLV; his wife had a career with the Clark County School District and now works part-time putting out a publication for the Faculty Alliance.

Teresa Benitez-Thompson, Miss Nevada 2002, is a licensed social worker, working in the private sector for a hospice care provider in Reno. Her husband “currently serves the Silver State as Assistant Nevada State Climatologist,” according to her Webasite, though her official 2011 financial disclosure form reports household income from the “Nevada System of Higher Education.”

Moving to Reno in 1997, Assemblyman David Bobzien “began working at the University of Nevada, Reno as a program assistant and management analyst in the Planning, Budget and Analysis office where he gained a knowledge of state education policy and budgets,” according to his official biography.

“David was appointed Campus Webmaster in 2000, where he worked with emerging Internet and education technologies until 2007,” but he now “owns a small Web design business.” He called me back to report he now has no government contracts.

Former Culinary Union shop steward Maggie Carlton now works for the Great Basin Primary Care Association, promoting health care for the poor. A lot of government grant money, there, but technically a non-profit corporation. Her husband is a longtime state parole and probation officer; her financial disclosure form reports household (but not personal) income from “State of Nevada.”

Assemblywoman Marilyn Dondero Loop, daughter of former County Commissioner Thalia Dondero, also draws a pension as a retired schoolteacher. She also lists herself as an “education consultant.” She states she has never drawn any further pay from the district since retiring. Her 2011 financial disclosure form, filed with the secretary of state, reports income from PERS — the state retirement system — and from one other source, listed only as “Pearson.”

Pearson Higher Education is a huge textbook publisher. Would her old colleagues in the school district have any incentive to throw business her way, given that she has a vote on their state funding allocations?

I asked her about income as a textbook salesperson in an e-mail. So far, no reply.

Assemblyman John Hambrick is retired after a multi-agency career with the Secret Service, the federal Inspector General’s office, and the Nevada Board of Osteopathic medicine. He presumably draws one or more government pensions, as does retired federal official Joe Hogan, Democrat.

Assemblyman Harvey Munford, D-Las Vegas, is a retired phys ed teacher. Lynn Stewart, R-Henderson, is a retired high school teacher.

We haven’t looked into lawmakers whose jobs — some created for them after they won elected office — make them beholden to the unions, to big developers, to insurance companies or trial lawyers or the gaming industry, all of whom have been known to adopt a stance of “Tax anyone but me.”
Maybe next time.