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...