Jerold A. Bonnet, General
AGO 2017-6
Official Opinion 2017-6
Indiana Attorney General Opinions
November 1, 2017
Jerold
A. Bonnet, General Counsel
Office
of the Indiana Secretary of State
200 W.
Washington Street
Indianapolis,
Indiana 46204
RE:
Lucrative Office Holder Inquiry
Dear
Mr. Bonnet:
QUESTION
PRESENTED
You
recently asked, in your capacity as General Counsel to the
Indiana Secretary of State, whether a member of the Motor
Vehicle Sales Advisory Board ("MVSAB"), as
established at Indiana Code § 9-32-10 et seq.,
holds a lucrative office under Art. 2, § 9 of the
Indiana Constitution.
BRIEF
ANSWER
A
member of the MVSAB does not hold a "lucrative
office" for dual office-holding purposes even though
such Board member receives reimbursement for expenses and a
per diem. A position on the MVSAB is not an
"office," as the position is advisory in nature and
does not involve the exercise of sovereign powers of the
state.
ANALYSIS
The
Indiana Constitution states in pertinent part: "No
person holding a lucrative office or appointment under the
United States or under this State . . . may hold more than
one lucrative office at the same time, except as expressly
permitted in this Constitution."1 This prohibition was adopted
by the framers of the Constitution to prevent the
consolidation of power in a small number of government
officials.2
Office
vs. Employment
An
"office" is "a position for which the duties
include the performance of some sovereign power for the
public's benefit, are continuing, and are created by law
instead of contract."3 An officer is appointed or elected, and
the duration of an officer's position is typically
defined by statute. However, an office is not the same thing
as mere employment, for which there is no Constitutional
prohibition. With "employment" an individual works
"under [a] contract of hire, express or implied, oral or
written, where the employer has the power or right to control
and direct the employee in the material details of how the
work is to be performed."4 An employee has no sovereign
power of the state entrusted to him.5 An employee's
compensation is generally agreed upon by the contract of
hiring.6 Finally, "[t]he most important
characteristic which may be said to distinguish an office
from an employment is that the duties of the incumbent of an
office must involve an exercise of some portion of the
sovereign power."7
What
is lucrative?
Some
type of compensation or payment is generally required for an
office to be considered lucrative. Under Art. 2, § 9, a
"lucrative office" is an "office to which
there is attached a compensation for services
rendered."8 Lucrativeness is not dependent on the
amount of compensation received.9 Compensation may be in the
form of a salary or a per diem. The officer may choose not to
accept the compensation, but as long as he or she is entitled
to the compensation, the office is considered
lucrative.10
Is
there a legislative exemption?
In some
cases where both positions are considered to be lucrative
offices, one of the positions may have been specifically
exempted by statute from the lucrative office
restriction.11The legislature has exempted a long list
of state board members.12
Motor
Vehicle Sales Advisory Board
As you
detailed in your request, the MVSAB was created by the
General Assembly in 2013 to advise the Secretary of State in
the administration of Title 9, Article 32 of the Indiana
Code, which pertains to the licensing of motor vehicle
manufacturers, distributors, and dealers.[13]The Secretary
of State's recommendation is appointed by the governor
for a three-year term.14MVSAB members are entitled to a per
diem as determined by State...
