Commentary - April 2010

Why is the Tail Wagging the Dog?

Public Employees as Lawmakers

by Lyle E. Brennan

 “The powers 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 the cases expressly directed or permitted in this constitution.”

_{Article 3, Section 1 of the Nevada Constitution}

    The founding fathers of our country established the “separation of powers’ system to give each department of government the ability to keep the others in check.   When Nevadans established their state Constitution, they wisely followed the federal model.   While not explicitly stated, the intention was to avoid any conflicts of interests that may arise by citizens serving dual roles in government.   

    In 1971 Attorney General Robert List, overturning more than a century of precedent, stated that school teachers could serve in the Legislature as long as they did so while on a leave of absence from teaching.  In the following years, more attorney generals supported and expanded the position that public employees could serve in the legislature.

    It could be argued that public employees are not serving in either the Executive or Judicial branch and should be allowed to maintain a job with state government and serve in the Legislature.  The problem with this argument is self evident, and history has proven that there are inherent conflicts for interest with the current system.

    We now face a situation which the same people who are tax consumers as public employees are also the ones deciding how much to tax, what to tax, who to tax and how that tax money will be spent.  For example, John Oceguera, Majority Floor Leader in the Assembly, is assistant chief of the North Las Vegas Fire Department; Sheila Leslie works for the court system; Kelvin Atkinson and Kathy McClain work for Clark County; Ruben Kihuen and Paul Aizley are employed by the university system, and Melissa Woodbury is a teacher in the Clark County School District.

    Consider this scenario: an employee is suddenly given the power to decide his own salary, benefits and working conditions, and his boss has no control over the outcome.  An honest employee will try to come up with a fair compensation package, but it’s pretty much guaranteed to include more money, more benefits, more job security and fewer restrictions.  It’s easy to see how letting public employees make the laws leads to bigger government and chronic overspending.

    The current system by its very nature creates conflicts of interest – for example, a university employee voting to approve the higher education budget, or a highway department worker voting on road construction bills.  A public employee who sits in the Legislature is in effect acting as a lobbyist for the government agency that provides his salary, in direct opposition to the people who put up the tax money to fund that salary.  

    There is also the question of double-dipping, where lawmakers who work in government jobs draw two public salaries at the same time.  Even if they take unpaid leave from their regular jobs, they may continue to accrue seniority under both the legislative retirement plan and the Public Employees Retirement System.

    Now that the separation of powers clause has been effectively thrown out, there is nothing to balance the bureaucrats’ natural urge to get a larger share of the state budget, to boost their salaries and benefits, and to squeeze out the competition, which in many cases is private enterprise.  Remember when a person holding government office was called a “public servant”?  When the tax consumers are also making the laws, we taxpayers are the ones doing the serving. Perhaps, it’s time for a change.

Lyle E. Brennan Publisher
COMMENTS? email: lyle@nbj.com