Why NV Constitution Prohibits Govt. Janitors from Serving as Legislators

Robert Fellner

Article III of the Nevada Constitution forbids those tasked with executive branch functions from serving as state legislators.

Executive branch functions entail “the responsibility to carry out and enforce” the laws enacted by the legislature, according to the 2007 Nevada Supreme Court case Halverson v. Hardcastle.

The matter was raised during Tuesday’s state supreme court hearing on Nevada Policy’s lawsuit to end the longstanding practice of dual-service among legislators.

Because all non-judicial state and local government agencies exist to carry out the laws of the legislature, they are therefore executive branch agencies, and their employees thus necessarily exercise executive branch functions.

Accordingly, even low-level government employees, including janitors, are therefore prohibited by Nevada’s constitutional separation of powers provision from simultaneously serving as state legislators.

Understanding why requires understanding the purpose of the doctrine, as explained by the Nevada Supreme Court in its binding precedent.

One of the key purposes of Nevada’s constitutional separation of powers provisions, according to the Nevada Supreme Court, is to prevent one branch from “encroaching” upon another branch. In the 1967 case Galloway v. Truesdell the court explained:

It is in the area of inherent ministerial powers and functions that prohibited encroachments upon the basic powers of a Department most frequently occur. All Departments must be constantly alert to prevent such prohibited encroachments lest our fundamental system of governmental division of powers be eroded. To permit even one seemingly harmless prohibited encroachment and adopt an indifferent attitude could lead to very destructive results.

Now let’s return to the issue concerning whether a low-level government employee, like a janitor, can permissibly serve simultaneously as a state legislator.

Once we remember that “prohibited encroachments” are the relevant purpose of the separation of powers in this context, it’s clear that the government employee’s status at his employing agency is entirely irrelevant.

In this context, the primary concern is that the executive branch employing agency will be able to impermissibly encroach upon the legislature through their employee/legislator.

If a single executive branch agency employed every single member of the legislature it would be obvious that the executive has encroached mightily upon the legislature, regardless of whether the dual-serving legislators were employed in a low-level capacity at the executive branch agency.

Sadly, this concern over government agencies corrupting the legislature via dual service is not merely theoretical.

Former dual-serving legislator Wendell Williams, for example, readily admitted that his government job at the city of Las Vegas was essentially made up, and his only real job was to make sure the legislature passed laws favorable to his government employer.

“I was given assignments to work on in the Legislature,” Williams testified when asked to explain what he did in his role as a Las Vegas city employee.

Williams even later told the Las Vegas Review-Journal that he supported specific legislation because his government employer promised him a pay raise and a promotion for doing so.

And that is the precisely the same kind of corruption and executive branch encroachment upon the legislature that motivated the colonists to adopt a broad conception of the separation of powers:

As famed historian Gordon Wood noted, the “separation of powers had a more precise significance than simply [the] abolition of multiple officeholding.” The American colonists were concerned with the executive’s ability to wield undue influence among legislators, thereby producing a legislature that served the needs of the executive, rather than that of the people. One of the main ways the executive “sought to manipulate” the legislature was by offering individual legislators executive appointments, which would understandably help to align those legislators’ interests with that of the crown.¹

Moreover, once we realize that one of the functions of the separation of powers doctrine is to prevent the executive branch from encroaching upon the legislature, there is simply no coherent basis for attempting to draw an artificial line between high-ranking employees and lower-level employees:

A low-level executive employee faces the same incentives to put the interest of their executive branch employer ahead of the public as would a high-ranking executive branch officer. Indeed, it is possible that the low-level employee might face even stronger perverse incentives, given they have more to gain by using their legislative influence to lavish benefits upon their executive branch employer. The special treatment they can expect to receive from their executive branch employer is also likely to be more valuable to a low-level employee than a high-ranking official, who may already be accustomed to such perks. In other words, executive branch employees in the legislature pose the same kind of problems as public officers would, as those lower-level employees still have an incentive to use their legislative power in a way that would benefit their executive branch employer.²

Thus, while it is certainly true that one of the main purposes of the separation of powers is to prevent the concentration of power within one person or group of people, that is not its only function.

The separation of powers was also designed to keep the branches truly separate and, as relevant here, to prevent executive branch agencies from encroaching upon the legislature.

To achieve both this and its broader purpose of ensuring “the maximum protection of the rights of the people,” Galloway, 83 Nev. at 22, Nevada’s separation of powers clause was thus written in broad and sweeping terms, such that no legislator may exercise “any” non-legislative function.

It is for that reason that all government employees, even janitors, are forbidden from simultaneously serving as state legislators.

[1] Robert Fellner & Colleen McCarty, Government Employees Need Not Apply: Why the State Separation of Powers Doctrine Bars Legislative Dual Service, 86 Alb. L. Rev. 837, 863 (2023).
[2] Id.
Robert Fellner

Robert Fellner

Policy Director

Robert Fellner joined the Nevada Policy in December 2013 and currently serves as Policy Director. Robert has written extensively on the issue of transparency in government. He has also developed and directed Nevada Policy’s public-interest litigation strategy, which led to two landmark victories before the Nevada Supreme Court. The first resulted in a decision that expanded the public’s right to access government records, while the second led to expanded taxpayer standing for constitutional challenges in Nevada.

An expert on government compensation and its impact on taxes, Robert has authored multiple studies on public pay and pensions. He has been published in Business Insider, Forbes.com, the Las Vegas Review-Journal, the Los Angeles Times, the Orange County Register, RealClearPolicy.com, the San Diego Union-Tribune, the Wall Street Journal, the Washington Examiner, ZeroHedge.com and elsewhere.

Robert has lived in Las Vegas since 2005 when he moved to Nevada to become a professional poker player. Robert has had a remarkably successfully poker career including two top 10 World Series of Poker finishes and being ranked #1 in the world at 10/20 Pot-Limit Omaha cash games.

Additionally, his economic analysis on the minimum wage won first place in a 2011 George Mason University essay contest. He also independently organized a successful grassroots media and fundraising effort for a 2012 presidential candidate, before joining the campaign in an official capacity.