Opinion Number ( 1994 )

Dear Mr. Soileau:

This office is in receipt of your opinion request under letter dated January 18, 1994. You ask whether an individual may legally accept temporary employment with the federal government while being on a one-year leave of absence without pay from a permanent state classified position.

Your inquiry raises the possibility of a potential violation of our state dual employment law. A review of the provisions of the Dual Officeholding and Dual Employment law, LSA-R.S. 42:61, et seq., reflects the following prohibition contained therein:

No person holding an elective office, appointive office, or employment in any of the branches of state government or of a political subdivision thereof shall at the same time hold another elective office, appointive office, or employment in the government of a foreign country, in the government of the United States, or in the government of another state. See LSA-R.S. 42:63(A).

This office has previously concluded that a person on leave without pay is not holding an "employment" within the context of dual officeholding prohibitions because the person is not being compensated for that position. See attached Attorney General Opinion 87-208. This office continues to adhere to the conclusion rendered in that opinion. Note the statutory definition of "employment" remains as provided by LSA-R.S.42:62(3), which states:

"Employment" means 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.

We conclude that a person on leave without pay from a classified civil service employment is not "employed" for purposes of the dual officeholding law, because he is not compensated on a salary or per diem basis. Accordingly, that person may legally accept a temporary federal position, to coincide with the period of leave from the state position.

Should you have other inquiries in which we may be of assistance, please contact this office.

Very truly yours

RICHARD P. IEYOUB Attorney General

BY: KERRY L. KILPATRICK Assistant Attorney General RPI/KLK/ 94-08