Opinion No. (1988) ( 1988 )

RE: DUAL OFFICE HOLDING

ATTORNEY GENERAL HENRY HAS RECEIVED YOUR LETTER OF APRIL 4, 1988, ASKING FOR AN INFORMAL OPINION AS TO WHETHER THERE IS ANY PROBLEM WITH AN APPOINTMENT OF A SITTING MEMBER OF THE OKLAHOMA DEVELOPMENT AUTHORITY TO A POSITION ON THE BOARD OF REGENTS OF CARL ALBERT JUNIOR COLLEGE. HE HAS AUTHORIZED ME TO PERSONALLY RESPOND TO YOU ON HIS BEHALF THROUGH THIS INFORMAL LETTER, IN THE INTERESTS OF TIME AND DUE TO THE FACT THAT THIS AREA OF THE LAW IS WELL-SETTLED.

TITLE 51 O.S. 6 (1981) PROVIDES, IN PERTINENT PART:

"EXCEPT AS MAY BE OTHERWISE PROVIDED, NO PERSON HOLDING AN OFFICE UNDER THE LAWS OF THE STATE AND NO DEPUTY OF ANY OFFICER SO HOLDING ANY OFFICE, SHALL, DURING THE TERM OF OFFICE, HOLD ANY OTHER OFFICE OR BE THE DEPUTY OF ANY OFFICER HOLDING ANY OFFICE, UNDER THE LAWS OF THE STATE."

THERE ARE SEVERAL EXCEPTIONS TO THIS STATUTES'S GENERAL TERMS, BUT I HAVE BEEN UNABLE TO FIND ANY EXCEPTION THAT WOULD APPLY TO THE SCENARIO YOU PRESENT. INDEED, OKLAHOMA'S TRADITIONAL ABHORRENCE OF DUAL OFFICE HOLDING, ABSENT SPECIFIC AUTHORIZATION FOR SAME, EXTENDS SO FAR AS TO PROVIDE THAT IF A PUBLIC OFFICER VIOLATES THE TERMS OF THE LAW IN THIS AREA, WHEN HE OR SHE ACCEPTS THE SECOND OFFICE, SUCH ACCEPTANCE OPERATES TO AUTOMATICALLY AND IMMEDIATELY CAUSE THE OFFICER TO VACATE HIS OR HER FIRST POSITION. GIBSON V. CROWDER, 165 P.2D 119 (OKLA. 1946).

THE ATTORNEY GENERAL HAS HAD MANY OCCASIONS TO REVIEW THE TERMS OF THIS STATUTE THROUGH THE YEARS, AND HAS UNIFORMLY APPLIED ITS DIRECTIONS AS BEING MANDATORY. SEE E.Q., ATTY. GEN. OPIN. NOS. 83-066, 83-050, 82-199, AND 82-035. THERE IS NO QUESTION BUT THAT THE TWO POSITIONS PRESENTED IN YOUR LETTER ARE BOTH PUBLIC OFFICES.

IT IS THEREFORE MY LEGAL OPINION THAT THE APPOINTMENT OF A SITTING MEMBER OF THE OKLAHOMA DEVELOPMENT AUTHORITY TO A POSITION ON THE BOARD OF REGENTS IN QUESTION, AND THE ACCEPTANCE OF SUCH POST BY THAT PERSON, WOULD TRIGGER THE TERMS OF 51 O.S. 6, AND WOULD CONSTITUTE A PROHIBITED DUAL OFFICE HOLDING SITUATION THAT WOULD RESULT IN THE PERSON VACATING THE FIRST OFFICE HELD.

(MICHAEL SCOTT FERN)