Opinion Number

Dear Mr. Landry:

I am in receipt of your request for an Attorney General's Opinion wherein you ask the following questions:

1) Can a school board member continue to serve on the school board if he is employed with a state department agency such as the State Department of Agriculture?

2) Does working for a state agency and holding a position as a school board member violate the dual office holding law?

To address your concerns, a review of the Dual Office Holding and Dual Employment Laws of this State which is found in Title 42 is necessary. Certain positions are prohibited by law from being held simultaneously.

LSA-R.S. 42:63(D) states the following prohibitions:

No person holding an elective office in a political subdivision of this state shall at the same time hold another elective office or full-time appointive office in the government of this state or in the government of a political subdivision thereof. No such person 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. In addition no sheriff, assessor, or clerk of court shall hold any office or employment under a parish governing authority or school board, nor shall any member of any parish governing authority or school board hold any office or employment with any sheriff, assessor, or clerk of court.

You have indicated that the individual-in-question is a state employee and a school board member. A school board position is a part-time position with a local political subdivision in the state. As defined in LSA-R.S. 42:62(9) a 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.

Your request does not indicate whether the position with the State Department of Agriculture is an appointed position or whether the individual-in-question is employed with the Department of Agriculture. I am also uncertain as to whether the position is full-time or part-time. I have attempted to contact you for further information but have been unable to reach you. Therefore, I will answer your questions assuming that the position with the State Department of Agriculture is by employment or appointment and full-time or part-time.

"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. (See LSA-R.S. 42:62(3))

"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. (See LSA-R.S. 42:62(2))

Concerning your first request, LSA-R.S. 42:63(D) prohibits an individual from holding an elective office in a political subdivision of this state when an individual is employed in the same political subdivision in which he holds an elective office. This statute also prohibits an individual from holding an elective office in a political subdivision and employment in the government of this state whether full or part-time.

Concerning your second request, LSA-R.S. 42:63(D) prohibits an individual from holding an elective office in a political subdivision of this state when an individual is also holding a full-time appointive office in the government of this state. However, this statute does not prohibit an individual from holding an elective office in a political subdivision and also holding a part-time appointed office in the government of this state.

In Attorney General Opinion No. 91-22, our office received a request concerning whether an elected school board member can concurrently serve as an assistant attorney general. Our office opined that the position of an assistant attorney general which is considered an appointive office is a full-time position and the concurrent holding of the two offices-in-question would be prohibited by LSA-R.S. 42:63D.

Therefore, in answer to your concerns, the following is true:

1) If the position with the State Department of Agriculture is employment with the state, an individual can not hold an elective position in a political subdivision of this state and also be employed either full-time or part-time with the State Department of Agriculture.

2) If the position with the State Department of Agriculture is an appointive position, an individual can hold an elective position in a political subdivision of this state and a part-time appointive position with the State Department of Agriculture.

I hope this opinion has sufficiently addressed your concerns. If I can be of further assistance please let me know.

Very truly yours,

RICHARD P. IEYOUB ATTORNEY GENERAL

By: __________________________ JAMES C. HRDLICKA Assistant Attorney General

RPI/JCH:lrs

Office of the Attorney General State of Louisiana

Opinion No. 91-22 February 20, 1991

R.S. 42:63C D; R.S. 15:145

78-Officers Dual Officeholding School Board member may only serve as part-time assistant attorney general and not full-time; and a member the Legislature may not concurrently as an assistant indigent defender employee of an indigent defender board.

Mr. Thomas A. Nelson President Pointe Coupee Parish School Board P.O. Drawer 579 New Roads, Louisiana 70760-0579

Dear Mr. Nelson:

Your inquiry of recent date addressed to Attorney General William J. Guste, Jr. has been directed to me for attention and reply.

I understand your two questions are as follows:

1. May an elected school board member concurrently serve as an assistant attorney general? and;

2. May a member of the legislature concurrently hold employment with a district indigent defender board as an assistant indigent defender?

1. With regard to your first question, please be advised that a school board is a local political subdivision (R.S. 42:62
(9)) and that the Office of Attorney General is an agency of the state of Louisiana.

Under Louisiana's Dual Officeholding and Dual Employment Law the applicable section to your question is contained in R.S.42:63D which reads in pertinent part as follows:

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

The Office of Assistant Attorney General is considered an appointive office. LA. Constn. Art. 4 Sec. 8) If the position of assistant attorney general is a full-time appointive position the concurrent holding of the two offices in question would be prohibited by R.S. 42:63D. Full-time and part-time is defined by the dual officeholding law at R.S. 42:62 (4) and (5): Part-time is defined is a 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; Full-time is defined as at least seven hours per day of work and at least thirty-five hours per week of work.

2. With regard to your second question, a member of the legislature, of course, is an elected office in the legislative branch of state government, and a district indigent defender board is a local political subdivision under R.S. 42:62 (9).

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.

Therefore, whether full-time or part-time, the Office of Assistant Indigent Defender is considered an employment and thus prohibited by R.S. 42:63C.

In conclusion, it is the opinion of our office that an elected school board member may concurrently serve only as a part-time appointive assistant attorney general and not full-time; and further, an elected member of the legislature may not concurrently be employed as an assistant indigent defender with a district indigent board.

If you have any further questions regarding this matter please contact our office.

Sincerely,

Harry H. Howard Spec. Assist. Attorney General