Legislative counsel argues to allow state workers in Legislature

Legislative Counsel Brenda Erdoes fired back Tuesday at the attorney general's petition for a ruling that could disqualify all public employees from legislative service.

In an 83-page argument, Erdoes charges the request by Attorney General Brian Sandoval infringes on the exclusive power of the Legislature to decide who is qualified to sit in the Assembly and Senate.

On behalf of Secretary of State Dean Heller, Sandoval asked the Nevada Supreme Court on April 2 to settle whether the Nevada Constitution bars state workers and local-government employees from serving in the Legislature.

Sandoval said last week he was hoping for an answer before May 14, when filing closes.

If state workers are barred from serving, five members would be removed from the Legislature. If local government workers are barred, several more members would be forced out, including public school teachers.

According to the response filed by Erdoes and Principal Deputy Kevin Powers, the high court doesn't have the power to infringe on legislative immunity and that the petition is "improperly trying to use the writ of mandamus to undo official action which the Legislature has fully performed."

"The secretary of state does not have any power to judge whether a candidate for the Legislature holds an incompatible office or to reject a declaration of candidacy on that basis," the brief argues.

It says that judgment can't be made until after the election.

"In the absence of a constitutional or statutory 'resign to run' provision, the determination of whether a person holds an incompatible office is made at the time the person assumes the duties of the allegedly incompatible office, not at the time that the person becomes a candidate for that office," it states.

The brief repeats the Counsel Bureau's opinion that the state executive branch employee who "does not hold a public office in the executive department and does not exercise any of the sovereign functions appertaining to the executive department" is not barred from legislative service by the separation of powers.

It also rejects the attempt to apply the separation of powers doctrine to local government employees saying those governments, their officers and employees aren't part of the state government. It adds that the Attorney General's Office has previously issued an opinion agreeing with that logic.

But the brief asks that if the court believes public employees are barred from legislative service, it also declare any prior legislative acts of those legislators are not void or subject to legal attack.

The document points out that local government employees have served as legislators since 1903 and state workers have served since 1931. It says the legislative counsel, which functions as the legal and research staff for the Legislature, has issued opinions concluding that local and state government workers can serve as lawmakers as long as they don't hold jobs that policy.

The brief says existing public employees should not be removed from the Legislature, prevented from running or be forced to surrender their public jobs if they win.

The petition was filed after Heller asked that the matter be resolved before the elections this year. The issue is also the subject of a petition drive seeking to put the question before voters. Organizers want to ban all public employees from legislative office.