Q: On March 1 of this year, the attorney general issued an opinion that stated employees serving in the executive branch of Nevada government were barred from simultaneously serving in the Legislature, but employees of local governments were not. Why was this opinion issued?
The first and most direct answer to this question is that we were asked to issue the opinion by the Nevada secretary of state, who is charged with the oversight of elections in Nevada. The issuance of legal opinions is one of the attorney general’s duties at the request of client agencies, boards and commissions throughout the state.
The specific question asked by the secretary was as follows: “Can executive branch and local government employees dually serve as members of the Nevada State Legislature without violating the separation of powers doctrine of Article 3, Section 1 of the Nevada State Constitution?”
The question was a simple one. The answer, however, given the complex judicial and legal history on the topic, as well as the organizational structure of the state, complicated the matter considerably. That the question presented by the secretary of state is an issue of controversy is clear, but our duty, as always, is apolitical: to resolve questions of law for our clients and issue opinions that are intellectually honest and legally sound.
Here is a brief synopsis of the attorney general’s opinion addressing the question asked by the secretary:
Article 3, Section 1 of the Nevada Constitution states:
Section 1: Three separate departments; separation of powers; legislative review of administrative regulations.
1. 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 herein expressly directed or permitted in this constitution.
Put another way, the framers of the Nevada Constitution, even as far back as 1864, deliberately inserted a provision within the document that prohibited a person who has the ability to exercise the power of one branch of government (legislative) to also exercise the functions of another (executive).
Although the specific question of whether executive branch and local government employees can dually serve as members of the Nevada State Legislature has never been reviewed by the Nevada Supreme Court, the court has strictly interpreted this portion of the of the Constitution in other contexts:
“…[T]he extent to which a country can successfully resolve the conflict between the three branches of government is to a very great extent the measure of that country’s capacity for self-government.” [Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237 (1967)]
Indeed, the Nevada Supreme Court has a history of strict observance of the principle of separation of powers, and for very good reason. Any instance where the principle is violated reduces the necessary tension between the branches of government and threatens to undermine checks and balances; where there is an institutionalized possibility of such violations, the entire system of checks and balances is at risk. That is why this issue is so significant: It is the very foundation of legitimate self-governance and public integrity.
This office has no investment in the opinion other than its being soundly rooted in law, and we welcome, even invite, the Nevada Supreme Court – as the ultimate arbiter of the Nevada Constitution – to consider it. The opinion does not carry the force of law. It is for another branch of government, the judicial branch, according to our Constitution and the separation of powers, to consider, deliberate and decide what precisely does have the force of law in this matter.
In matters involving the separation of powers, the Nevada Supreme Court has plainly stated its intention to prohibit even “harmless” encroachments by one branch of government upon another, and our opinion echoes that judicial declaration. On the other hand, with regard to the question of whether local government employees are part of the state executive branch, the issue is also very complicated. This office found that absent legal restrictions unrelated to the doctrine of separation of powers, a local government employee may simultaneously serve as a member of the Nevada Legislature. To confirm this finding, this office must again seek guidance from the Nevada Supreme Court.
Until the court reaches its decision on the question presented, it is important to heed a final quote from the Court’s seminal decision on the separation of powers doctrine in Truesdell:
“To permit even one seemingly harmless prohibited encroachment and adopt an indifferent attitude could lead to very destructive results…”
Readers who would like to review the attorney general’s 26-page opinion may do so at: https://www.ag.state.nv.us/agopinions/opns.htm
