Opinion Number ( 2004 )

Dear Ms. Klimwiewicz:

You advise this office that you currently hold the elected office of constable and the appointive office of chief deputy clerk in the Webster Parish Clerk of Court's office.

R.S. 42:63 (D) of the Louisiana Dual Officeholding and Dual Employment Law prohibits you from holding these positions simultaneously. The law states:

D. 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. (Emphasis added).

The chief deputy clerk holds full-time appointive office. "Full-time" is defined in R.S. 42:62 (4) as:

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

"Appointive office" is defined in R.S. 42:62 (2) as:

(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.

The position of chief deputy clerk is a local appointive office under R.S. 42:62 (2) because it is an office which is specifically established by the constitution of this state and which is filled by appointment by an elected public official. The office of chief deputy clerk is provided for in LSA-Const. Article V, § 28 (1974) and the elected clerk of court makes the appointment.¹ As noted above, the office is also a full time job. See LSA-R.S. 42:62 (4).

Further, you may not legally hold the offices of clerk of court and constable simultaneously. The prohibition applicable here is again found in R.S. 42:63 (D), quoted above.

You must immediately resign from one of these positions, to remove a continued violation of the dual officeholding laws.

Very truly yours, CHARLES C. FOTI, JR. ATTORNEY GENERAL

BY: ____________________ KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL

KLK:ams

¹ § 28. Clerks of Court

Section 28. (A) Powers and Duties; Deputies. In each parish a clerk of the district court shall be elected for a term of four years. He shall be ex officio notary public and parish recorder of conveyances, mortgages, and other acts and shall have other duties and powers provided by law. The clerk may appoint deputies with duties and powers provided by law and, with the approval of the district judges, he may appoint minute clerks with duties and powers provided by law.

(B) Office Hours. The legislature shall establish uniform statewide office hours for clerks of the district courts.