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June 2, 2015

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J. Patrick Coolican:

It’s time local government stop asking the state for permission to act

J. Patrick Coolican

J. Patrick Coolican

Clark County says the state of Nevada owes it $102.5 million and has sued to get its money.

But state government, which took the money from county property taxes and sales taxes to solve its budget crisis, has all the leverage in this fight. That explains why, as my colleagues David Schwartz and Joe Schoenmann have reported, Gov. Brian Sandoval’s office has refused to hand over even a quarter on the dollar, even though the Nevada Supreme Court ruled last year that a similar state grab-and-dash was illegal. The county made its pitiful offer as a “compromise,” like the desperate victim of a Ponzi scheme hoping for a pittance.

Unless a judge decides in the county’s favor, the odds of the state handing over the money are about equal to the Romney family showing up in body paint to campaign at the Burning Man art festival in Northern Nevada. (Message to the Romneys: That would win my vote.)

Why does the state feel so secure constantly taking as it pleases and thumbing its nose at the county and other local governments? Because it’s an asymmetrical negotiation — state government has all the power.

Local government is bound by what’s called Dillon’s Rule, named for Iowa Judge John Dillon’s 19th-century decision that said local governments can only do what the state constitution or the Legislature allows, period. The county can’t wash its hands without permission from the state.

Ngai Pindell, associate dean of academic affairs and professor at UNLV’s Boyd School of Law, says that this conflict exists in every state, on a fairly wide spectrum, with some states allowing relatively more power for local government and some states less. We’re on the “less” side of the ledger. There are roughly 31 true Dillon’s Rule states (that’s us); 10 home rule states, where local government has autonomy; and nine states with a mixed system, according to Jeff Fontaine of the Nevada Association of Counties.

“In Nevada, the state government historically is going to have more power, and no one is going to give it away voluntarily,” Pindell says.

The upshot is that we in Southern Nevada don’t get to decide how and to what extent we fund our local services — schools, parks, social services and roads — or even how we administer them. Except for voter initiatives, those major decisions are made by the Legislature. In fact, local government can’t do much of anything without permission from the Legislature.

The most absurd example in memory was when Clark County was unsure if it had the authority to tow cars illegally parked in its own parking lot.

But there are plenty of other examples that affect not just Southern Nevada, but our rural and Reno brethren, as well.

The Legislature directs local government how to negotiate with our public employees, granting local unions collective bargaining rights while denying the same for state workers. (And then legislators have the gall to complain that local government pays its workers too much.)

Local government needs the Legislature to approve its administrative functions, such as abating nuisances. Rural counties with part-time district attorneys had to get permission from the Legislature to set office hours to make sure the DAs showed up at work.

Former state Sen. Terry Care, who fruitlessly tried during multiple legislative sessions to give local government some home rule, says he noticed that every two years local government would come with a bevy of requests to fulfill their local governing duties, which sometimes were met but sometimes weren’t.

“Bills die for no particular reason,” Care says, “and when that happens, the city or county has to wait another two years.”

Indeed, the Nevada Legislature is widely understood to be a feckless institution that meets for just 120 days every other year in a building 450 miles away. (Even though the south should theoretically have all the power there, that’s not how it works, and we wind up subsidizing the rest of the state.)

If we want to spend more (or less) on our schools, police and so on, that should be our right, without having to go on bended knee to the Legislature or undergo the unwieldy process of a voter initiative.

As Care said in testimony on a home rule bill he offered in 2009: “Why should the Nevada Legislature be the body who determines whether these counties be allowed to raise these taxes? Who better to know whether these taxes need to be raised than the local entities themselves?”

The principle is the same as federalism — if people in California want to live differently than people in Nevada, that’s our respective choice, just as if people in Las Vegas want to live differently than people in Elko, that should be our choice, too.

Rory Reid, the former Clark County Commission chairman, told me in an email: “The county should be able to make decisions regarding the size and structure of its agencies. It should have some control over its revenue sources and more control of its ability to borrow money. The county should be able to make personnel decisions, decide what its elected official are paid and have more control over the collective bargaining of its employees. The county should be able to do its business.” The county, he says, is often blocked from doing so.

Why is there no discussion, let alone action, on this obvious unfairness? Reid says it’s a pure power issue. The state has it, and they aren’t going to relinquish it. Moreover, he says when he was in office, he was reluctant to even discuss it for fear of retribution from the Legislature.

Admittedly, the Clark County Commission has a less than illustrious history. So I suppose I understand a certain reluctance to set the commission free.

Assemblywomen Marilyn Kirkpatrick, D-North Las Vegas, a defender of legislative prerogative, says, “I worry about a lot of autonomy (for local government) and no accountability.”

Bear in mind, however, that giving home rule wouldn’t prevent the Legislature from reining in the counties if legislators felt it necessary.

We would stand Dillon’s Rule on its head — instead of the Legislature telling the local governments what they can do, it would tell them what they can’t do.

If you’re worried about runaway taxes, there’s currently a statewide cap on property taxes of $3.64 per $100 of assessed value.

That needn’t automatically go away just because we grant local governments home rule.

Despite the persuasive arguments, I don’t have much hope. To begin with, as Care and Reid both point out, political institutions rarely give away power voluntarily.

We’ll need to seize it. That means that in addition to the usual boilerplate questions about taxes and spending, we need to start asking legislative candidates whether they believe we should be able to govern ourselves — without permission from Carson City.

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