Gov. Sunny goes dark: The Sandoval Secrecy proposal is an outrageous abuse of executive branch power



This is one of those times (there are many) that I wish Bill Raggio were still alive.

The legendary legislative master surely would have been apoplectic at the Sandoval administration’s attempts to keep private what are public agency budget requests – likely illegal, surely tone-deaf and definitely outrageous. I can see Raggio putting his arm around Gov. Not-so-Sunny, smiling and telling him: “You don’t want to do this, governor. No good can come of it.”

I’m not sure if Sandoval, whose political sense is usually akin to a Spidey-sense, is too busy to pay attention to this. Or it’s that his staff – a new chief and legal counsel – don’t realize the media/legislative firestorm they have kindled. Or whether this is just another example of an overweening and overreaching executive branch trying to take more authority from a legislative branch with a well-earned inferiority complex. (UPDATE: The genesis of this inter-branch feud was first reported in October by the Nevada News Bureau)

I find this to be, in a word, frightening. Look what the Sun's David McGrath Schwartz wrote about this imperious administration: “Sandoval’s top staff would not be interviewed for this article. Agency heads said they have been instructed not to talk about the “items for special consideration.”

Gag orders? Really?

The law (NRS 353.211) is clear. The key phrase: “open for public inspection.”

By refusing to allow lawmakers or the public to see what his agencies are asking for, Sandoval clearly is undermining the statute’s intent, defying logic and common sense. If this becomes a bigger issue, which it only will if the Fourth Estate and the Gang of 63 make it one, some dark clouds will appear over Gov. Sunny.

The purpose of that law is not, like the Sandoval administration, opaque. It is designed to allow lawmakers and the public to see what the governor sees in making his budget decisions.

Shouldn’t the Gang of 63 be able to evaluate that in deciding whether to fund something not in the executive budget? And shouldn’t the public know what the governor decided to keep and decided to cut to help judge his performance as the state’s chief steward?

Any argument that this is work product that is part of the sacrosanct deliberative process would be, as longtime legislative lawyer Brenda Erdoes told Schwartz, a historical reinterpretation of the law – and surely not what it was intended to do, which is shine light not radiate darkness. I’ve asked some longtime lawmakers and legislative insiders what they make of this maneuver by the Sandoval administration, and no one has a good answer. (I have asked the governor for answers, and I will update this post if his office responds.)

I scoff at speculation that Sandoval is doing this to cover the fact that Health and Human Services might have requested additional funds for Medicaid expansion – I have little doubt that HHS chief Mike Willden wants to do so. But while Sandoval searches for a way to embrace expanding Medicaid under the Affordable Care Act, he can’t possibly be using this blanket secrecy scheme as a way to hide that, could he? Highly unlikely.

This is more understandable, if not justifiable, when placed in the context of the never-ending tug o’ war between the executive and the legislative branches. Nevada has an unusually strong executive branch – lawmakers only meet four months out of 24 and even when they are there the governor has a veto that can nullify their work.

It is one of the hoariest of clichés but so apropos here: Information is power. And by depriving the Legislature of information, it only increases the executive’s power.

This is part of an ongoing attempt by a potent executive branch to erode what’s left of legislative authority. As one longtime capital observer reminded me, “Over the past several sessions, governors have been trying to avoid releasing too much information concerning agency requests, and putting limitations on direct communication between those heads and the Legislature or its staff (in the Gov's defense, you want to speak with one voice, and can't have agencies lobbying for their programs contrary to the Gov's decisions concerning the budget). One way to do this is to have agencies submit proposed budgets with strict limitations, then separately request ‘wish list’ items (aka ‘items for special consideration’).”

The net impact of this is to hide – yes, hide – from the Legislature and the public what agencies have requested, only allowing the superior caste, a k a the Executive Branch, to see what the governor has recommended. By using Orwellian redefinitions of what is an agency request, required to be put on public display by that law, and then restricting gubernatorial staff communication with lawmakers, as that one observer put it, “You have no ability on the part of the Legislature or its money committees to evaluate alternatives to the Governor's proposed budget.”

You don’t need a law degree to see that eviscerates the law – and may violate the Open Records Law, too; you don’t need a keen sense of right and wrong to see which side the governor has decided to come down on.

I truly do wonder what Raggio, a stickler for tradition and keeper of the institution, would do if he were alive. Whatever action the master would have taken to short-circuit this not-so-sunny proposal, I hope the current legislative leadership does it. And if they won’t, the media should consider going to court to force the governor to be transparent.

Gov Sunny: Let the sunshine in.



UPDATE: The state Democratic Party released a statement this afternoon reacting to the controversy:


“Governor Sandoval’s refusal to disclose his Administration’s budget requests is deeply disturbing and likely violates Nevada law. The Governor is not entitled to pick and choose which laws he wants to follow. Governor Sandoval should immediately disclose his budget requests, as required by the law, so Nevadans know how he wants to spend their tax dollars.”

UPDATE: Got this statement from the governor -- he's not backing off.

“Building the state budget is a constantly changing and evolving process. Given the times we are in, I owe it to the public to present a budget that reflects reality. The Governor’s Office is in full compliance with statutory requirements regarding submission of the budget. By law (NRS 353.211), the Budget office is required to release each agency’s requested budget for the next 2 fiscal years to the Fiscal Analysis Division of the Legislative Counsel Bureau on October 15th and the budget office did so. “Items for special consideration,” or agency wish lists, are not part of the agency request budget.

“As a former legislator, I respect the Legislature and its process. However, it would be improper for me to give the Legislature and the public a false impression as to what may or may not be contained in my proposed state budget. After I have had a full opportunity to consider agency wish lists and their budget impacts, I will gladly forward the agency wish lists to the Legislature.”