2010 Op. (Jul. 1).

• Court: Alaska

Alaska Attorney General Opinions 2010. 2010 Op. (Jul. 1). TO: Mike NizichChief of StaffOffice of the GovernorFROM: Daniel S. Sullivan Attorney GeneralDATE: July 1, 2010FILE NO.: N.ATEL. NO.: 269-5100SUBJECT: Alaska Constitution Article II,Section 5: The Ineligibility ClauseI. Overview In this opinion, we revisit legal advice the Department of Law has given to the Governor's Office and a legislator regarding the eligibility of a former legislator to assume a position in the executive branch when the position did not previously exist and the legislator resigned for the stated purpose of taking the position. The Department of Law has previously advised that a former legislator would likely be eligible as long as the position was not formally established until after the resignation. After undertaking additional thorough research and analysis, we conclude that ourearlier advice was not based on all relevant considerations and case law and that,although the question is a close one, an Alaska court may disagree with the advice we previously provided. We also conclude that the Governor's Office and former Representative Nancy Dahlstrom, who resigned from the Legislature to assume the position of Senior Military Affairs Advisor, have acted in good faith and consistently with the law as interpreted by the Department of Law throughout this entire process. II. The Issue The Alaska Constitution's Ineligibility Clause, Article II, section 5, states inrelevant part: "During the term for which elected and for one year there after, no legislatormay be nominated, elected, or appointed to any other office or position of profit whichhas been created, or the salary or emoluments of which have been increased, while hewas a member." The particular legal question at issue here is whether a legislator is eligible to assume a position in the executive branch when the position did not previously exist and the legislator resigned for the stated purpose of taking the position. The issuehas arisen in the context of Ms. Dahlstrom, but the conclusions of this opinion would apply generally to similar situations. III. The Governor's Office and Representative Dahlstrom Relied on theDepartment of Law's Advice Because legislators are knowledgeable about Alaskan public policy issues and the workings of government, they are attractive candidates for high-level executive branch positions. In May of this year, prior to her resignation, Ms. Dahlstrom sought advice from the Department of Law on whether she was eligible for the Senior Military Affairs Advisor position. An assistant attorney general expressed the Department of Law's pastview that positions in the Governor's office are not created until a personnel classification number is assigned and that in the past such personnel classification numbers were assigned after a legislator's resignation to take a newly created position.Ms. Dahlstrom relied on that advice as part of her decision to resign from the Legislature and take the position. In offering the position to Ms. Dahlstrom, the Governor's Office also relied on advice by the Department of Law and on the long-standing nature of this practice. The Department of Law's advice was based in turn on AG opinions(fn1) and on institutional knowledge of how newly created positions had been filled by legislators in atleast three previous Administrations.(fn2) Our research does not reveal any instances in which the Department of Law had told the Governor's Office not to make such an appointment. To the contrary, previous AG opinions have generally supported this...