Submitted by William Puchert
I read in a recent article from The Nevada Independent that Nevada Supreme Court Justice James Hardesty is under consideration to be the next chancellor of the Nevada System of Higher Education.
However, a constitutional provision bars current members of the Nevada Judiciary from holding any non-judicial office during the length of their original term, which would prohibit Hardesty doing so until his term ends in 2023—even if he resigned his position. The intent of the law is to keep politics out of the judiciary and maintain the independence of the courts. The article points to a 2002 Nevada Attorney General opinion from the state attorney general’s office upholding that provision.
James Hardesty
The NSHE’s chief counsel is petitioning in the Nevada Supreme Court to allow for Hardesty to retain his current position as an applicant in the process. Obviously, the state constitution’s separation of powers clause bars a person from serving in two branches of government and Hardesty would have to resign if selected as chancellor.
The NHSE is seeking a legal opinion to allow him to maintain his current position if he becomes a finalist for the chancellor position—just in case he is not selected. The petition also argues that the chancellor’s position is not an elected office and serves as an employee appointed by the Board of Regents (like the relationship a city manager has to a city council) and thus not an “elected office.”
This petition is yet another example of the state’s higher education system seeking to differentiate itself from other state agencies. I recall a story I wrote as a writer for the UNLV student newspaper in the mid-1990s, quoting a university system official’s explanation of their refusal to undergo an audit of state agencies. He rationalized the university system was really not part of the state’s executive branch, because it was governed by an elected Board of Regents.
The Board of Regents, like school boards, has tended to be filled with people without backgrounds in education and who use these positions as stepping stones to higher office—thus there is plenty of politics at play.
While the provision barring Hardesty for being a chancellor is restrictive because of his judicial branch status, the line between the other two branches seems to be more flexible where the NHSE is concerned. One could even argue that the NHSE is a bastion of Nevada’s “good ol’ boy” system, allowing for legislators to serve as university employees and legislators. This has been grounds for previous legal challenges citing conflicts of interest over the state’s separation of clause between the executive and legislative branch.
A 2017 This Is Reno article reported on a lawsuit filed by the conservative think-tank Nevada Policy Research Institute sued State Sen. Heidi Gansert (R-Reno) because of her position as UNR’s Executive Director of External Relations. That case was ultimately dismissed.
Gansert is among several Nevada legislators of both political parties over the years who have served in dual positions also as NSHE employees. They contend the nature of Nevada’s part-time, biannual “citizen-legislature” should allow for those of diverse backgrounds to serve and as long as those legislators take leave of absences and disclose their conflicts then there is no ethical quandary.
Ironically, Board of Regents Chairman Jason Geddes, who will decide on the selection of the next chancellor, is a former Nevada assemblyman. At the time he was serving in the legislature, he was also was also a UNR employee. He left his position at the Nevada Department of Agriculture and was hired by the university to that position prior to announcing his candidacy that year.
There are merits to both sides of the argument of allowing NHSE employees to serve as state lawmakers. However, the judiciary is another ball of wax.
I do not have a legal background and admittedly there are those with more superior legal minds than mine who could argue the NSHE’s (Hardesty’s) case. However, it seems like common sense that Nevada’s constitutional framers would go to great lengths to ensure independence in its judiciary.
Retired U.S. Supreme Court Justice Sandra Day O’Connor once said, “The framers of the Constitution were so clear in the Federalist Papers and elsewhere that they felt an independent judiciary was critical to the success of the nation.”
I cannot speak for Hardesty’s motivation for seeking the chancellor’s position. Perhaps it is because the Nevada Legislature denied an $80,000 pay raise to the Nevada Supreme Court Justices last year and, according to Transparent Nevada, the chancellor’s position currently pays over $450,000 while Hardesty’s salary is about $200,000 lower.
While it may seem extreme to restrict Hardesty from seeking a non-judicial position during the length of his elected term even if he resigns, the judiciary must be held to a higher standard. He must resign if he becomes a finalist for the position. To start making conflicting precedents in this area is a slippery slope that will erode judicial independence.
I would also call on the Board of Regents to find someone of the same caliber of the late broadcast executive and philanthropist Jim Rogers, who served as NHSE chancellor from 2005-2009. He donated his salary back into the university system while he served in that position and made many reforms and improvements.
William Puchert is a local graphic designer and a former journalist who covered state and local government.
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