Opinion Number

Dear Ms. Atkins:

In response to your inquiry of recent date, the law does not prohibit the Clerk of the Civil District Court for the Parish of Orleans from contracting to provide part-time legal services to a state board or commission.

Of potential concern is R.S. 42:63 (D) of the Louisiana Dual Officeholding and Dual Employment Laws, R.S. 42:61, et seq., providing in part:

"No person holding an elective office in a political subdivision of this State shall. . . . hold at the same time employment in the government of this State, or in the same political subdivision in which he holds an elective office. . . ."

A clerk of court, holding elective office, would be prohibited from holding "employment in the government of this state." R.S. 42:62 (3) defines "employment" as:

"any job compensated on a salary or per diem basis, other than an elective or appointive office in which a person is an employee of the State government or of a political subdivision thereof."

However, a person who has a contract to provide professional services does not hold "employment" as defined in R.S. 42:62 (3) and thus R.S. 42:63
(D) is not violated.

We conclude you may continue as clerk of court and contract to perform legal services for a state board or commission. Attached is Attorney General Opinion 91-449, which reaches the same conclusion.

Very truly yours,

CHARLES C. FOTI, JR. ATTORNEY GENERAL

BY: ____________________ KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL

KLK:ams

OPINION NUMBER 91-449

April 13, 1992

10 CLERKS OF COURT — Compensation Fees: Powers Duties

78 OFFICERS — Dual Office Holding

R.S. 42:62; R.S. 43:63

Dual office holding law would not prohibit the Clerk of the First City Court of Orleans Parish from performing legal services on a contract basis for the State of Louisiana.

Honorable Rose Ledet Clerk of First City Court 421 Loyola Avenue New Orleans, Louisiana 70112

Dear Mr. Dejean:

I am the Clerk of Civil District Court for the Parish of Orleans. I am seeking an advisory opinion from the Office of the Attorney General. The issue is as follows:

"May the Clerk of Civil District Court for the Parish of Orleans, engage in the part-time practice of law by contracting with the State of Louisiana to provide part-time legal services to a State Board or Commission?"

Your prompt attention to this matter is appreciated. Thank you for your time and consideration.

Sincerely,

/s/

Dale N. Atkins Clerk of Civil District Court, Orleans Parish

NOT PAID FOR WITH PUBLIC FUNDS

Dear Ms. Ledet:

Your request for an Attorney General's Opinion has been referred to me for research and response. As I understand your question, it is as follows:

May the Clerk of First City Court, in Orleans Parish, engage in the part-time practice of law representing the State of Louisiana?

It would appear that LSA R.S. 42:62 (3) and LSA R.S. 42:63 (D) provide the answer to the your question. R.S. 42:63 (D) provides, in pertinent, part as follows:

"No person holding an elective office in a political subdivision of this State shall. . . . hold at the same time employment in the government of this State, or in the same political subdivision in which he holds an elective office. . . ."

Therefore, as a elected officer in a political subdivision of this State, you are prohibited from holding employment in the government of this State. The question then becomes whether part-time legal representation of the State constitutes employment. LSA R.S. 62(3) defines "employment" as:

"any job compensated on a salary or per diem basis, other than an elective or appointive office in which a person is an employee of the State government or of a political subdivision thereof."

Your letter does not indicate the nature of the part-time work you anticipate doing for the State of Louisiana. However, if we assume that you anticipate working for the State on a contract basis, it is the opinion of this office that this would not constitute "employment" under the definition contained in R.S. 42:62. This is consistent with Attorney General's Opinions Numbers 88-618 and 88-653. To partially paraphrase and partially quote a portion of Opinion 88-653 if the relationship between you and the State of Louisiana is one of contract rather than "employment" as defined in R.S. 42:62 (3), the provisions of the Dual Officeholding Statute are not violated. Thus, it is the opinion of this office that you may legally enter into a contract with the State of Louisiana, to provide legal services, because such a contractual relationship will not result in an "employment" as defined by the Louisiana Dual Officeholding Law.

If, however, the anticipated work should involve working on a part-time, salaried or per diem basis, it is the opinion of this office that such work would constitute "employment" within the meaning of the statute, and would be prohibited.

I trust the foregoing adequately answers your question. If, however, additional information is needed, please do not hesitate to contact me.

Yours very truly,

RICHARD P. IEYOUB Attorney General

BY: ____________________ JAMES A. SMITH, II Assistant Attorney General

RIP/JAS:pb 2312s

Clerk of Court — Orleans Parish CIVIL DISTRICT COURT 421 LOYOLA AVENUE ROOM 402
TELEPHONE: 592-9100

Dale N. Atkins CLERK OF COURT

February 4, 2004
Kenneth Dejean General Counsel Louisiana Department of Justice P.O. Box 94005 Baton Rouge, LA 70814

OR #04-0040 KILPATRICK 2/05/04

Re: Request for Attorney General Opinion