Wednesday, June 06, 2007

Constitutional Prohibition Doesn't Stop Double-Dipping

The Indiana Constitution specifically provides that "no person may hold more than one lucrative office at the same time, except as expressly permitted in this Constitution." The constitutional prohibition is often raised in the context where a government employee seeks to hold an elected job while continuing service as a government employee. A recent decision by the Indiana Court of Appeals instructs as that a deputy sheriff can simultaneously hold an elected office--in this case--county commissioner.

In the case of Thompson v. Hays, a Scott County resident challenged the right of a Scott County Deputy Sheriff to hold a county commissioner's job to which he was elected at the same time he served as a deputy sheriff. The citizen argued that allowing Mark Hays to serve as a county commissioner at the same time he served as a deputy violated Article II, Section 9 of the Indiana Constitution. While the Court of Appeals agreed that county commissioner represented a "lucrative office", it found that as a deputy sheriff, Hays was a county employee and not holding a "lucrative office." In a footnote to the decision, the Court pointed out that neither party had invoked a statute, I.C. 36-8-10-11(c), which specifically allows a county police officer to both seek elected public office and to serve once elected.

Interestingly, the citizen plaintiff in the Scott County case also didn't raise Article III, Section 1 of the Indiana Constitution, which prohibits a person who is charged with duties under one of the three separate branches of government from exercising any of the functions of another branch. In at least two prior Court of Appeals decision from the 1980s, the Court held that neither a county police officer nor a city police officer could serve as a county council member or city council member, respectively, because it would mean the officer was exercising legislative duties while exercising executive branch duties. As one court noted, the police officer would be "directing salaries and expenditures for himself and his fellow police officers" in violation of Article III, Section 1.

Apparently mindful of these court decisions, the legislature amended the statute governing sheriffs to allow a county police officer to run for and serve on a county council in direct violation of the constitutional prohibition. A separate statute, I.C. 36-8-3-12, was also amended to allow city police officers to run for and hold elective office. Previously, the statute only allowed them to run for office but did not address the issue of whether their service as a police officer could continue once elected to the public office. In a 1995 Court of Appeals decision, Harden v. Whipker, the Court declined to follow the earlier decision concerning Article III, Section 1 and allowed a Bartholomew County police officer to run for and serve on the county council pursuant to I.C. 36-8-10-11(c). Unbelievably, the Court held that a county police officer holding the "dual positions" was not "offensive to the Indiana Constitution." It added, "In fact, Whipker's conduct is expressly permitted by statute in Indiana, and we therefore decline to disturb the trial court's judgment" allowing him to serve in both positions.

I don't agree with the holding in Harden v. Whipker in the least bit. Because of that decision, it has become common place for police officers to serve on the county councils and city councils. Here in Marion County there are at least two IMPD officers, Sherron Franklin (D) and Lincoln Plowman (R), who have been elected to the City-County Council. They in fact are able to directly participate in deciding the budget for the Department of Public Safety, which includes their own salaries and those of their fellow police officers. They in fact both voted against the police consolidation ordinance--another clear conflict of interest. I simply do not accept that this is not a violation of Article III, Section 1. A public interest group should challenge the status quo, including the constitutionality of I.C. 36-8-10-11(c) and I.C. 36-8-3-12.


Wilson46201 said...

IANAL but it's always been explained to me that the no two lucrative offices clause meant a person couldn't hold two or more elective offices simultaneously.

Another kicker might be the word "deputy" which implies the person has the deputized powers of an elected official. It's one thing to be a clerk in a sheriff's office, it's quite another to be a deputy sheriff.

Gary R. Welsh said...

I agree it's not a "lucrative office". That wasn't the issue I was raising, which was whether a person executing powers in the executive branch could also hold a legislative position at the same time. That is clearly what Article III, section 1 is meant to prevent, but which has been circumvented by statute.

Wilson46201 said...

How can a statute circumvent an express Constitutional provision?

Gary R. Welsh said...

I believe that's the reason I said the statute should be challenged, Wilson, because the statute can't trump the constitution.

Anonymous said...

I understand the issue. Maybe the elected office should have nothing to do with the entity the person works for. This would mean university employees, state employees, etc. could not seek state office. Police, fire, parks, etc. could not seek local office.