The Honorable Bill Walker
AGO AN2016101165
No. AN2016101165
Alaska Attorney General Opinions
July 19, 2016
The
Honorable Bill Walker
Governor
State
of Alaska
P.O.
Box 110001
Juneau,
Alaska 99811-0001
Re:
Legislators Serving on Executive Branch Boards and
Commissions AGO No. AN2016101165
Dear
Governor Walker:
You
have asked for an opinion on the constitutionality of
legislators serving on executive branch boards and
commissions, either as voting or non-voting members. Your
question has been posed, in part, because of the passage of
HCS CSSB 125(RES), which would make three sitting legislators
directors of the Alaska Gasline Development Corporation
("AGDC"). As detailed below, we conclude that
legislative presence on several of the specific boards and
commissions asked about would violate the Alaska
constitution, regardless of the voting status of the
legislative members.
Having
legislators serve on executive branch boards and commissions
raises two constitutional issues. The first is the
prohibition against legislators holding dual offices as set
out in article II, section 5 of the Alaska constitution. The
second is the separation of powers doctrine that is inherent
in the framework of the Alaska constitution.
The
specific functions of any board or commission on which a
legislator is serving need to be considered to determine
whether the dual office holding prohibition or the separation
of powers doctrine is violated. In general, the constitution
is violated if a legislator serves on a board or commission
that is charged with executing the law in some way, such as
carrying out duties prescribed by statute. It would not
matter whether the legislator serves in a voting or
non-voting capacity on such a board or commission. In
contrast, the constitution likely will not be violated if a
legislator serves on a board or commission that only collects
information or provides recommendations on matters of public
concern to other governmental bodies or agencies for their
consideration. In some circumstances, the chances of being
constitutional are improved if the body the legislator serves
on is one of temporary duration. In all instances, the
constitutionality of a legislator serving on a board or
commission will depend on the exact circumstances presented.
Our
opinion is that having legislators serve as non-voting
directors of AGDC violates the prohibition against dual
office holding and the separation of powers doctrine.
We are
also of the opinion that having legislators serve as
non-voting directors of the Alaska Aerospace Corporation
("AAC") and the Knik Arm Bridge and Toll Authority
("KABATA") is unconstitutional. Legislators serving
on the board of the Alaska Seafood Marketing Institute
("ASMI") is likely unconstitutional, but we do not
think it is necessary to reach the constitutional question
for that entity. The governing statutes do not authorize
legislators to act as directors of ASMI. In addition, we are
of the opinion that the constitution prohibits legislators
from serving as members of the Alaska Commission on
Postsecondary Education ("ACPE").
For the
specific advisory boards and commissions you have inquired
about, we conclude that having legislators serve on these, as
either voting or non-voting members, is likely constitutional
so long as the legislators do not receive separate
compensation for their service.
DISCUSSION
I.
Dual office holding is prohibited under the Alaska
constitution.
Article
II, section 5 of the Constitution of the State of Alaska
prohibits dual office holding by legislators. In its
entirety, article II, section 5 states:
No legislator may hold any other office or position of
profit under the United States or the State. During the
term for which elected and for one year thereafter, no
legislator may be nominated, elected, or appointed to any
other office or position of profit which has been created, or
the salary or emoluments of which have been increased, while
he was a member. This section shall not prevent any person
from seeking or holding the office of governor, secretary of
state, or member of Congress. This section shall not apply to
employment by or election to a constitutional
convention.1
The
Alaska Supreme Court first dealt with the dual office holding
prohibition in Begich v. Jefferson,
[2] in which it held
that legislators could not act as superintendent or teachers
in a State-operated school district while in office.
3 In
the decision, the court pointed out that article II, section
5, as originally drafted, did not include the first
sentence.
4 The first sentence was added by the
framers to make it clear that "there should be no dual
office holding from the standpoint of a
legislator."
5 The court in Begich went on to
discuss the policy reasons why dual office holding is
prohibited under the constitution:
Alaska's constitutional prohibition against members of
our three separate branches of state government holding any
other positions of profit under the State of Alaska
reflects the intent to guard against conflicts of
interest, self-aggrandizement, concentration of power, and
dilution of separation of powers in regard to the exercise by
these governmental officials of the executive, judicial,
and legislative functions of our state government. The
rationale underlying such prohibitions can be attributed to
the desire to encourage and preserve independence and
integrity of action and decision on the part of individual
members of our state government.6
The
Alaska Supreme Court also considered the prohibition against
dual office holding in Warwick v. State ex rel.
Chance.
7 The issue in Warwick was whether
a legislator could resign his elected office to take the
position of Commissioner of Education even though the
legislature had approved a salary increase for the
Commissioner less than one year earlier. In holding that the
legislator could not become Commissioner of Education in that
circumstance, the court ruled that article II, section 5 of
the constitution meant what it says. "The terms of art.
II, sec. 5 of the Alaska Constitution are clear and
unambiguous."
8
The
prohibition against dual office holding was reinforced in the
case of State v. A.L.I.V.E. Voluntary.
[9] In that decision,
the Alaska Supreme Court noted that the legislature could not
create an executive branch agency to review and void proposed
regulations and then appoint its own members to act as such
an agency. The court said that doing so "would amount to
dual office holding, prohibited by article II, section 5, and
would infringe on the executive appointment power set out in
article III, section 26."
10
Based
on these decisions, the Department of Law has observed that
the "prohibition against dual-office holding is enforced
in Alaska in accordance with its literal
terms."
11 The Department of Law has issued a
series of opinions about legislators serving on boards and
commissions of the executive branch, finding in most
instances that the prohibition of dual office holding is
violated or likely violated.
12
As our
prior opinions point out, the term "office" in
article II, section 5 of the Alaska constitution must be
distinguished from the separate term of "position of
profit." The word "profit" modifies only
"position" and not
"office."
13 Accordingly, the constitutional
prohibition applies even though the second "office"
a legislator is to hold carries no salary or other
compensation. The prohibition against dual office holding is
applicable "notwithstanding the presence or absence of
compensation or 'profit.' . . . The term
'office' stands without further limitation. We
believe it includes offices which effect or directly
influence the execution or adjudication of the
law."
14
Our
prior opinions have also observed that the term
"office" is to be broadly construed. An
"office 'is a public charge or employment, the
duties of which are prescribed by law, and he who performs
the duties is an officer.'"
15 This interpretation is
consistent with the generally accepted legal meaning of the
term. An "office" is defined as a "position of
duty, trust, or authority, esp. one conferred by a
governmental authority for a public
purpose."
16 The Alaska Supreme Court has used a
similar definition for "public office," which it
defined as "[a]n office or position in the services of a
nation, state, city, etc."
17 The Alaska Supreme Court
has also said that an "office" is one created by
constitution or...
