AGO 2009-1.

• Case Date: June 01, 2009
• Court: Indiana

Indiana Attorney General Opinions 2009. AGO 2009-1. June 1, 2009OFFICIAL OPINION 2009-1The Honorable Frank MrvanIndiana Senate 200 West Washington Street Indianapolis, Indiana 46204Re: Dual Office Holding (Hammond City Council/Hammond Port Authority)Dear Senator Mrvan: You requested a legal opinion on the issue of whether the appointment of a Hammond City Council member to the Board of Directors of the Hammond Port Authority would violate the prohibition against dual office holding found at Article 2, Section 9 of the Indiana Constitution.(fn1) Brief Answer A member of a city council and a member of a board of directors of a local government port authority are both lucrative officeholders for purposes of Article 2, Section 9 of the Indiana Constitution. Simultaneously holding both offices would violate the constitutional prohibition against dual office holding. Analysis 1. "Officeholder" Article 2, Section 9 of the Indiana Constitution states, in pertinent part, "... no person may hold more than one lucrative office at the same time ...." The dual office prohibition was adopted by the framers of the Indiana Constitution in order to prevent the consolidation of power in a small number of government officials. See generally, Gregory Zoeller, Dual Office Analysis: Can the Legislature Carve out Exceptions, 37 Ind. L. Rev. 733, 736-37 (2004). An "office," for purposes of Article 2, Section 9, means "a position for which the duties include the perforn1ance of some sovereign power for the public's benefit, are continuing, and are created by law instead of contract." Thompson v. Hays, 867 N.E.2d 654, 657 (Ind. Ct. App. 2007) (citations omitted). A person is generally considered a public officer if the person holds an elective or appointive position with duties that are prescribed by statute. Mosby v. Bd. qf Com'rs of Vanderburgh Co., 186 N.E.2d 18, 20 (Ind. Ct. App. 1962). Officers are "charged with duties delegated to them under the state government, with duties imposed upon them by statute, and are subject to legislative control." Wells v. Peden, 94 N.E. 321, 322 (Ind. 1911). "An officer is also distinguished by his power of supervision and control and by his liability to be called to account as a public offender in case of malfeasance in office." Mosby, 186 N.E.2d at 21. City and county officials whose...