The Nevada Policy Research Institute has filed suit in Carson District Court seeking an order forcing state Sen. Mo Denis, D-Las Vegas, out of his job at the Public Utilities Commission.
NPRI's chief legal officer, Joe Becker, said holding a job in both the executive and legislative branches of state government is unconstitutional.
Lorne Malkiewich, director of the Legislative Counsel Bureau, said that has always been the position of the legislative branch.
"The issue is whether the legislator is actually exercising functions of another branch of government," Malkiewich said. "The example we use is the janitor," he said, pointing out that janitors don't face that prohibition because they don't make those kinds of decisions.
Malkiewich said the LCB would contend that Denis, who is a computer information technology technician, doesn't exercise the functions of the executive branch in his position with the PUC.
Becker disagreed, saying all lawmakers employed by another branch of government are in violation of the Nevada Constitution.
"Denis being employed as a computer technician at the PUC while serving as a state Senator is unconstitutional," he said.
The suit was filed on behalf of William Pojunis of Las Vegas, who said he wants to apply for Denis's job. But he and Becker acknowledged that Pojunis has not actually applied for work at the PUC and has been out of work since 2007.
Asked whether Pojunis has legal standing to file the complaint, Becker said his interpretation of a similar case filed by then-Secretary of State Dean Heller in 2004 says Pojunis does have standing simply because he wants to apply for the job.
Denis, the PUC and the state are listed as defendants in the case. The Legislature is not because that is why the Supreme Court rejected Heller's case, saying that since the Constitution clearly gives the Legislature sole power to seat its members, the court itself would violate separation of powers by ruling on whether a state worker should be removed from office.
Becker said that the complaint seeks only to remove Denis from the PUC job but that Denis could choose to leave office instead.
He said Pojunis is a computer technician who is qualified for the position. He declined, however, to detail his client's qualifications for the job.
Becker and Matthews said the same problem occurs with up to 14 legislators either working for local government and school districts or with prospects to work for a local agency.
Malkiewich said the LCB's interpretation there has long been that the separation-of-powers clause in the state Constitution doesn't even apply to local governments.
"The Constitution talks about the powers of state government being divided into three branches," he said. "It's an entirely different argument with local government employees, which is that they are not exercising the powers of state government at all."
Denis declined to comment on the suit, saying he hasn't even been served yet and, at that moment, was at the hospital awaiting the birth of his first grandchild.
