Opinion Number

Dear Mr. Graphia:

On behalf of the State Indigent Defender Board you are requesting an opinion of this office regarding the purchasing of equipment, leasing of space and employing of personnel by the Indigent Defender Boards throughout the State. In your letter you have proposed six (6) specific questions which will be treated individually as follows:

"1. Are the District Indigent Defender Boards state or local agencies?"

Act 653 of 1976 (R.S. 15:144) establishes an Indigent Defender Board for each judicial district of the state. It is the opinion of this office that each of the Indigent Defender Boards are local political subdivisions of the state and therefore as such are local agencies and not state agencies.

"2. Must the District Boards comply with public bid laws?"

R.S. 38:2211, the Public Bid Law, is applicable to all political subdivisions of the state and therefore as such the District Indigent Defender Boards must comply with the provisions of the Public Bid Law where applicable. It must be noted, however, that certain purchases by the District Boards due to the limited competition for providing these materials, for example, law books, need not be procured by means of Public Bid Law.

"3. If District Boards find that they must act immediately to set up offices in order that the administration of Criminal Justice may not be disrupted in the parishes, may they in any manner disregard compliance with public bid law on an emergency basis?"

R.S. 38:2211D provides that the Public Bid Law shall not apply in "cases of extreme public emergency where such emergency has been certified to by the governing authority of the agency or body". It is the opinion of this office that the nature of the services to be rendered by the District Indigent Defender Boards would not normally qualify as an emergency exemption under the Public Bid Law and therefore advise that the expenditure of the funds by the District Boards be pursuant to the Public Bid Law where applicable.

"4. Are the District Boards subject to public bid law regarding leases?"

The Public Bid Law regarding leases is found in Title 41 of the Revised Statutes and it is noted that these provisions are applicable to the situation where a political subdivision is attempting to lease certain lands owned by that political subdivision. Furthermore R.S. 41:1291 et seq. provides in essence for a political subdivision to lease from another political subdivision or another state agency without the necessity of public bid. It is the opinion of this office that there is no requirement for the District Indigent Defender Boards to lease office space pursuant to the Public Bid Law regarding leases.

"5. Must the employees of the District Boards be subject to Civil Service?"

R.S. 15:145D(2) provides as follows:

"Appointment of a Chief Indigent Defender. The District Board may appoint a Chief Indigent Defender and such assistants and supporting personnel as it deems necessary. The Chief Indigent Defender shall be appointed for a period of three years and may not be a member of the board. The salaries of the Chief Indigent Defender and all assistants and supporting personnel shall be fixed by the District Board. All employees of the board shall possess such powers and duties as prescribed by the District Board and consistent with the Code of Professional Responsibility."

A review of the constitutional provisions as respects civil service, together with the above quoted language, indicates that the employees of the District Boards are not subject to any particular civil service system. Therefore, it is the opinion of this office that the employees of the District Boards are not subject to civil service.

"6. Must the employees of the District Boards be enrolled in the state retirement system or any other state system?"

In that the District Boards are considered local political subdivisions or local agencies and not agencies of the state, the employees of the District Boards are not required to be enrolled in the State Employees' Retirement System. A review of the other state systems does not reveal any public retirement system for which the employees of the District Boards would be eligible. Therefore, it is the opinion of this office that the employees of the District Boards are not eligible for membership in the state retirement system or any other state system but rather they are subject to social security.

I trust that the above satisfactorily answers your inquiry and should we be of any further assistance please advise.

Sincerely,

WILLIAM J. GUSTE, JR. ATTORNEY GENERAL

BY: _____________________________ CARMACK M. BLACKMON ASSISTANT ATTORNEY GENERAL

CMB:dna

Dear Representative Farrar:

You have asked this office to advise whether a legislator may simultaneously hold a position as a part-time appointed assistant district attorney. Because the separation of powers provision of LSA-Const. Art. II § 2 (1974) is applicable, we respond in the negative to your question.

LSA-Const. Art. II §§ 1 and 2 (1974) state:

Section 1. The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.

Section 2. Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.

A legislator serves as part of the legislative branch of state government. LSA-Const. Art. III § 1 (1974) states in part that "the legislative power of the state is vested in a legislature, consisting of a Senate and a House of Representatives."

An assistant district attorney serves as part of the judicial branch of state government. LSA-Const. Art. V § 26 (1974). An assistant district attorney exercises the authority of the judicial branch, as Art. V § 26(B) states:

Powers. Except as otherwise provided by this constitution, a district attorney, or his designated assistant, shall have charge of every criminal prosecution by the state in his district, be the representative of the state before the grand jury in his district, and be the legal advisor to the grand jury. He shall perform other duties provided by law.

The legislative power is the power to make laws. State ex rel.Guste vs. Legislative Budget Committee, 347 So.2d 160 (La. 1977), at page 164. The district attorneys and their designated assistants are constitutionally vested with the power to institute and prosecute criminal actions. See Guidry vs. Roberts,331 So.2d 44 (La.App. 1st Cir. 1976), at page 52.

It is a constitutional violation for one individual to exercise the power of the legislative branch as legislator and judicial authority as assistant district attorney. We have previously issued two opinions from this office which adhere to the same conclusion. See Attorney General Opinions 02-484 and 92-697, copies attached.

Constitutional provisions are superior to state statutes. Thus, despite the provisions of the Louisiana Dual Officeholding and Dual Employment Laws, R.S. 42:61, et seq., the position of state legislator and the position of assistant district attorney may not be held concurrently, even if a literal reading of the dual-officeholding statutes would not prohibit the simultaneous holding of these positions.

Indeed, it is significant that the office of the district attorney, for purposes of the application of the dual officeholding statutes, is considered a separate political subdivision of the state, and is not included within the judicial branch of state government as defined by R.S. 42:62(8), providing:

The judicial branch of state government includes all judges, employees, and agents of the supreme court, the judicial administrator, courts of appeal, district courts, including the civil and criminal district courts of Orleans Parish, parish courts, city courts, juvenile and family courts, and any other judicial offices and instrumentalities of the state, but does not include judges or employees of courts not enumerated in this Paragraph.

Rather, the office of the district attorney is considered a "political subdivision" for purposes of the dual officeholding laws as per R.S. 42:62(9), providing:

"Political subdivision" means a parish, municipality, and any other unit of local government, including a school board and a special district authorized by law to perform governmental functions. In addition for the purposes of this Part, mayor's courts, justice of the peace courts, district attorneys, sheriffs, clerks of court, coroners, tax assessors, registrars of voters, and all other elected parochial officials shall be separate political subdivisions. (Emphasis added).

The dual officeholding provisions do not prohibit one from holding state elective office and a part-time appointive office in a political subdivision of the state, where the constitutionalseparation of powers doctrine proves inapplicable. For instance, in Attorney General Opinion 93-276, this office determined that a legislator may hold a part-time position with parish government as an indigent defender. Constitutional concerns under the separation of powers doctrine were not implicated in opinion 93-276.

This office determined in Attorney General Opinion 99-335 that a state legislator can also serve in a part-time appointed office with parish government. While R.S. 42:63(C) prohibits a state legislator from holding a full-time appointive office, no such restriction exists with respect to a part-time appointive office. Again, in Opinion 99-335, no constitutional concerns under the separation of powers doctrine were implicated.

Further, in Attorney General Opinion 04-70, this office determined that a legislator may also serve as a mayor's court magistrate for a municipality. The mayor's court, for purposes of dual officeholding, is a separate political subdivision of the state and not within the judicial branch as defined by R.S. 42:62(8). As we stated to the legislator requesting the opinion, "this determination is limited to an examination of the dual-officeholding law. Mayor's courts are part of the judiciary and its magistrates are subject to the Code of Judicial Conduct." While we did not invoke application of LSA-Const. Art. II § 2 (1974), we did refer the requestor to the Judiciary Commission, as that entity is the final authority with respect to the conduct of judicial officers.

We hope the foregoing is helpful to you. Should you have other questions in which we may provide assistance, please contact this office.

Very truly yours,

CHARLES C. FOTI, JR. ATTORNEY GENERAL

BY: _____________________________________ KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL

KLK:ams

Dear Representative McCain:

This office is in receipt of your opinion request directed to Attorney General Richard P. Ieyoub. The request has been assigned to me for review.

Your request raises the following issue:

May a member of the state Legislature concurrently hold the position of assistant indigent defender with the parish indigent defender board?

Resolution of this issue requires review of the Dual Officeholding and Dual Employment Laws of this state. The simultaneous holding of certain positions is prohibited by statute, and as applied in this instance, those pertinent prohibitions are stated as follows:

"No person holding an elective office in the government of this state shall at the same time hold another elective office, a full-time appointive office, or employment in the government of this state or in the government of a political subdivision thereof." LSA-R.S. 42:63(C).

A member of the legislature holds an elective office in the legislative branch of state government. LSA-R.S. 42:62(1). A district indigent defender board, created pursuant to LSA-R.S.15:144, is a local political subdivision under LSA-R.S.42:62(9). See also attached Attorney General Opinion Numbers 91-420 and 77-163.

As applied to the instant case, the statute prohibits the simultaneous holding of state elective office while holding either a full-time appointive office or any employment in a political subdivision. However, the statute permits the simultaneous holding of state elective office and part-time local appointive office.

You advise that the position with the indigent defender board is part-time as defined by statute. "Full time" is defined as at least seven hours per day of work and at least thirty-five hours per week of work. LSA-R.S. 42:62(4). "Part time" means less than the number of hours of work defined as full time. LSA-R.S. 42:62(5).

Therefore, our conclusion is predicated upon whether the position with the indigent defender board is appropriately characterized as an appointment or an employment.

"Employment" is defined 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." LSA-R.S. 42:62(3); (Emphasis added).

An appointive office is defined in LSA-R.S. 42:62(2) as follows:

"Appointive office" means any office in any branch of government or other position on an agency, board, or commission or any executive office of any agency, board, commission, or department which is specifically established or specifically authorized by the constitution or laws of this state or by the charter or ordinances of any political subdivision thereof and which is filled by appointment or election by an elected or appointed public official or by a governmental body composed of such officials of this state or of a political subdivision thereof."

This office has recently addressed this issue in Attorney General Opinion Number 91-22, wherein the author stated:

"Although R.S. 15:145 uses both, the words `employed' and `appointed', it is our opinion that an assistant indigent defender hired by the board would be considered an employee of the district indigent board, whereas an indigent defender named by a judge or from a list on a case to case basis would be considered an appointment."

It is the opinion of this office that the conclusion of the author in 91-22 is correct. In the case you present, the assistant indigent defender is hired by the indigent defender board and employed on a salaried basis. An elected member of the legislature may not concurrently be employed, whether part time or full time, as an assistant indigent defender with a district indigent board.

We hope the foregoing interpretation of the law sufficiently responds to your request. Should you have further inquiries, please contact this office.

Very truly yours,

RICHARD P. IEYOUB Attorney General

BY: KERRY L. KILPATRICK Assistant Attorney General

RPI/KLK/0231E

Dear Representative Shepherd:

You have asked this office to determine whether or not a state legislator may also serve as a mayor's court magistrate for a municipality.

R.S. 42:63(C) of our state Dual Officeholding and Dual Employment Law, R.S. 42:61, et seq., is of interest here and provides:

C. No person holding an elective office in the government of this state shall at the same time hold another elective office, a full-time appointive office, or employment in the government of this state or in the government of a political subdivision thereof.

A legislator holds elective office in the legislative branch of state government. See R.S. 42:62(7). The magistrate of a mayor's court holds part-time appointive office. See R.S. 33:441 and R.S. 42:62(2) and (5). Further, the mayor's court is a separate political subdivision for purposes of the dual-officeholding law. See. R.S. 42:62(9).

Because the position of magistrate is held on a part-time basis, the prohibition of R.S 42:63(C) is inapplicable. While our conclusion reflects that you may hold both positions, note that this determination is limited to an examination of the dual — officeholding law. Mayor's courts are part of the judiciary, and its magistrates are subject to the Code of Judicial Conduct. See LSA-Const. Article V § 5(A) and Article V § 20 (1974). We suggest you seek the further opinion of the Judiciary Commission, with attention directed to Mr. Steven Scheckman, 601 St. Charles Avenue, New Orleans, Louisiana, 70130, phone number 504-568-8299.

Very truly yours,

CHARLES C. FOTI, JR. ATTORNEY GENERAL

BY: ____________________________ KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL

KLK:ams

Dear Mr. Nunn:

Please be advised that the office of the Attorney General is in receipt of your opinion request, which has been forwarded to me for research and reply. You have stated that you are presently a part-time Assistant District Attorney and are considering running for State Representative. You have, therefore inquired as to whether it is permissible to hold both positions.

La.R.S. 42:63(B) prohibits a person from holding office or employment in one branch of state government while holding another office or employment in any other branch of state government. As your present position of Assistant District Attorney is in the judicial branch and the position of State Representative is in the legislative branch of state government, same would be prohibited by our dual office holding laws.

I hope this opinion satisfactorily answers your inquiry. If you have any further questions, please do not hesitate to contact our office.

Yours very truly,

RICHARD P. IEYOUB ATTORNEY GENERAL

____________________ ANGIE ROGERS LAPLACE Assistant Attorney General

RPI/ARL/crt

DATE RELEASED: January 30, 2003

Dear Mr. Burson:

This office is in receipt of your opinion request directed to Attorney General Richard P. Ieyoub. The request has been assigned to me for research and reply.

Your request raises the following issue for our review:

"May an appointed part-time Special Assistant District Attorney serve simultaneously as State Senator?"

An assistant district attorney holds a position within the judicial branch of government which is established by Article V, Section 26 of the Louisiana Constitution of 1974. Further, pertinent provisions of LSA-R.S. 16:51 state:

"The district attorney of each judicial district and of the parish of Orleans shall appoint a first assistant district attorney and such other assistant district attorneys for his respective judicial district. . . . LSA-R.S. 14:51(A); (Emphasis added).

The first assistant district attorney for each judicial district and for the parish of Orleans shall possess the same qualifications as provided by the constitution for district attorneys. Other assistant district attorneys for each judicial district and for the parish of Orleans shall be admitted to practice law in this state. Assistant district attorneys serve at the pleasure of and may be removed at the discretion of the district attorney." LSA-R.S. 16:51(B); (Emphasis added)."

The position of assistant district attorney is filled by appointment by an elected public official, as stated in the definition of "appointive office" within LSA-R.S. 42:62(2). For purposes of the Dual-Officeholding and Dual Employment statute, (LSA-R.S. 42:61, et. seq.) the office of special assistant district attorney is an appointive office. See Attorney General Opinion Numbers 82-112 and 80-1407, copies of which are enclosed, in which the author reached a similar conclusion.

The provision of the Dual-Officeholding and Dual Employment statute called into question is contained within LSA-R.S.42:63(C), which states:

"No person holding an elective office in the government of this state shall at the same time hold another elective office, a full-time appointive office, or employment in the government of this state or in the government of a political subdivision thereof." (Emphasis added).

A member of the Legislature holds an elective office in the government of this state. The statute prohibits the simultaneous holding of a state elective office with a local full-time appointive office. The dual officeholding provisions do not prohibit a part-time special assistant district attorney from serving as a state legislator.

Should you have further inquiries, please contact this office.

Very truly yours,

RICHARD P. IEYOUB Attorney General

BY: KERRY L. KILPATRICK Assistant Attorney General

RPI/KLK/0136E

Dear Representative Romero:

In response to your recent correspondence, please note the law prohibits a state legislator from concurrently holding employment with the parish government.

LSA-R.S. 42:63(C) of the State Dual Officeholding and Dual Employment Laws prohibits this arrangement, and provides as follows:

C. No person holding an elective office in the government of this state shall at the same time hold another elective office, a full-time appointive office, or employment in the government of this state or in the government of a political subdivision thereof. (Emphasis added).

Further, LSA-R.S. 42:62(1) states:

(1) "Elective office" means any position which is established or authorized by the constitution or laws of this state or by the charter or ordinances of any political subdivision thereof, which is not a political party office, and which is filled by vote of the citizens of this state or of a political subdivision thereof.

LSA-R.S. 42:62(9) also states:

(9) "Political subdivision" means a parish, municipality, and any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions. . . .

Finally, LSA-R.S. 42:62(7) states in part:

The legislative branch of State government includes the members of the Senate and the House of Representatives. . . .

A legislator holds elective office in the government of this state. The position of employment with the parish comes within the control of the parish governing authority and as such, constitutes employment with a political subdivision of the state under LSA-R.S. 42:62(9). Therefore, it is the opinion of this office that state law prohibits the holding of both positions concurrently.

While R.S. 42:63(C) also prohibits a state legislator from holding a full-time appointive office, no such restriction exists with respect to a part-time appointive office. "Full-time" and "part-time" positions are defined by R.S. 42:62(4) and (5), respectively:

(4) "Full-time" means the period of time which a person normally works or is expected to work in an appointive office or employment which is at least seven hours per day of work and at least thirty-five hours per week of work.

(5) "Part-time" means the period of time which a person normally works or is expected to work in an appointive office or employment which is less than the number of hours of work defined in this Section as full-time.

Finally, an "appointive office" is defined by R.S. 42:62(2), providing:

(2) "Appointive office" means any office in any branch of government or other position on an agency, board, or commission or any executive office of any agency, board, commission, or department which is specifically established or specifically authorized by the constitution or laws of this state or by the charter or ordinances of any political subdivision thereof and which is filled by appointment or election by an elected or appointed public official or by a governmental body composed of such officials of this state or of a political subdivision thereof.

Therefore, a state legislator could also serve in a part-time appointed position with the parish.

Very truly yours,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: KERRY L. KILPATRICK
ASSISTANT ATTORNEY GENERAL

KLK:ams