Senator fires back at separation of powers lawsuit filed by conservative group, calls it 'bare bones'
An attorney for Republican state Sen. Heidi Gansert and her employer, the University of Nevada, Reno, has called a lawsuit challenging her employment at the school a “bare bones” complaint that doesn’t prove its allegations of a constitutional separation-of-power violation.
In a motion to dismiss the suit filed on April 18, Gansert’s attorney tackled several of the questions raised in a lawsuit filed by the Nevada Policy Research Institute (NPRI) in February claiming that Gansert’s $179,000 a year position at the university and role as a lawmaker violates Nevada’s constitutional separation of powers rules.
“The Complaint contains numerous legal and conclusory allegations, but the only material factual allegation against Gansert is that she is currently employed by the University while serving as a state senator,” the response states. “This lone allegation is not sufficient as a matter of law to state a constitutional violation.”
In the motion, filed by UNR general counsel Melissa Barnard, it’s asserted that Gansert isn’t violating the separation of powers clause because she isn’t a “public officer” wielding sovereign authority of the executive branch, which the NPRI suit defines as the elected members of the Nevada System of Higher Education's Board of Regents and presidents of state universities and community colleges.
The motion also criticizes the initial complaint’s claims as being almost entirely “legal or conclusory allegations” that can’t be accepted as true by a court. The filing claims that the separation of powers question comes down to whether or not Gansert’s position is considered a “public officer” or simply a “public employee.”
“If the position of Executive Director is a public officer position, then there might be a separation of powers issue but only if Gansert exercised any functions as Executive Director in relation to the Legislative branch,” the filing states. “However, if the position of Executive Director is a position of public employment, then there is no separation of powers issue.”
NPRI sharply criticized the motion on Tuesday, with the group’s Center for Justice and Constitutional Litigation director Joseph Becker saying it ignores the plain language of the state’s constitution.
“Apparently, Senator Gansert feels that she can simply rewrite the constitution to exclude herself from its constraints,” said Becker.
Nevada’s constitution states that “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.”
Gansert was elected to the state senate in 2016, after previously serving close to a decade in the state Assembly and a stint as Gov. Brian Sandoval’s chief of staff before beginning work as the “Executive Director of External Relations” for the university in October 2012. She’s taking an unpaid leave of absence through the 120-day legislative session.
Questions over lawmakers and conflicts of interest in their normal jobs are nothing new — NPRI sued Democratic state Sen. Mo Denis in 2011 on behalf of a plaintiff who wanted his IT job with the state’s Public Utilities Commission (Denis resigned and took a new job before a court could rule on the case, rendering it moot).
While the issue has been raised multiple times in recent decades, questions over whether executive branch employees — which includes at least 16 of the 63 Nevada lawmakers — can serve in the part-time legislative branch have yet to be resolved by the state’s highest court.
Former Attorney General Brian Sandoval, now governor, issued a 2004 opinion asserting local government employees, such as teachers, could serve in the legislature, but took a tougher line on state government employees serving as legislators than the Legislative Counsel Bureau, which has issued opinions claiming public employees can keep their seats because they don’t exercise sovereign powers of the executive branch.
NPRI says it plans to file a response to the motion early next week.
Read the full response to the lawsuit here:
2017.04.18 Defendant Gansert's Motion to Dismiss Complaint by Riley Snyder on Scribd