Harrison, 020917 INAGO, AGO 2017-2

Case DateFebruary 09, 2017
CourtIndiana
Joseph Harrison, Jr., Esq.
AGO 2017-2
Official Opinion 2017-2
Indiana Attorney General Opinions
State of Indiana Office of the Attorney General
February 9, 2017
         Joseph Harrison, Jr., Esq.          Massey Law Offices, LLC          Curtis Building - Suite 502          915 Main Street          P.O. Box 3526          Evansville, Indiana 47734-3526          RE: Dual Office Holding Inquiry          Dear Mr. Harrison:          QUESTION PRESENTED          You recently asked, in your capacity as county attorney, whether a person may be a member of both the Vanderburgh County Board of Commissioners and the Vanderburgh County Convention and Visitor Commission without violating the prohibition against "dual office-holding" found in Art. 2, § 9 of the Indiana Constitution.          BRIEF ANSWER          Yes. While a member of the Vanderburgh County Board of Commissioners holds a "lucrative office," a member of the Vanderburgh County Convention and Visitor Commission does not. Thus, a person may hold both positions simultaneously without violating Ait. 2, § 9 of the Indiana Constitution. Notwithstanding, this conclusion, individuals who do not violate Art. 2, § 9 must also consider the separation of powers doctrine, possible conflicts of interest, and potential incompatibility of positions.          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. An individual having only an employment relationship 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          When is an office "lucrative"?          Compensation or payment of some kind 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 even 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 any legislated exemption from the dual officeholder proscription that would apply in this case?          In some cases where both positions are considered to be lucrative offices, one of the positions may be specifically exempted by statute from the lucrative office restriction.[11] For instance, the legislature has exempted county police officers;12 members of safety boards;[13]appointed deputies;[14] members of any township, town or city police department;15 city employees;[16] and a long list of state board members.17 A review of Indiana's laws, cases, and past opinions of this office revealed no exemption that would apply to either the Vanderburgh County Board of Commissioners or the Vanderburgh County Convention and Visitor Commission.          Vanderburgh County Board of Commissioners          The Vanderburgh County Board of Commissioners ("Board") is the county executive and is established by statute.18 The Board consists of three (3) members19 elected by the voters of the county.20 Board members serve four (4) year terms,21 and their compensation is fixed by the county fiscal body.22 The Board is empowered to administer oaths,23 to punish contempt by a nominal fine or brief imprisonment,24 and to direct a county sheriff or police officer to execute its orders.25 The Board may approve accounts chargeable against the county, direct the raising of money necessary for county expenses,26 and audit officers who deal with county monies.27 The Board may direct the sale of county buildings and...

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