Lucrative dispute
Rodney Margison with the Brown County Democrat has a in-depth article up on the Indiana constitutional prohibition on a person hold more that one “lucrative office” at the same time ( Article 2, Section 9). The occasion is a dispute over whether Brown County Commissioner Stephanie Yager violated this provision when, soon after taking office as a commissioner, she took on a part time job in the county treasurer’s office.
Ms. Yager served as the county treasurer for 8 years before moving to the commission, and she was asked to help out in the treasurer’s officeduring that difficult time when the switch to the fair market property tax structure caused tax statements to be delayed. She was paid $8.00 per hour (lucrative?) and worked over 300 hours in the part time position.
The article is rare in in the detail of the legal analysis of a fairly complicated area of the law:
“Questions still arise as to how one determines whether holding multiple offices is a conflict,” wrote Gregory Zoeller, the state’s chief deputy attorney general, in the Indiana Law Review last year. “And whether exceptions to the ‘dual office’ prohibition in Indiana’s Constitution enacted by the legislature are, in effect, slowly eroding the constitutional protections.”
One such legislative exception is Indiana Code 5-6-4-3, enacted in 1999, which says, “the position of appointed deputy of an officer of a political subdivision or a judicial circuit is not a lucrative office.”
Dale Simmons, co-general counsel for the Indiana Election Division, supports Mrs. Yager’s right to hold both positions and cited that statute in an e-mail to Brown County Republican Chairperson Lynda Sereno on Wednesday, June 15.
“I read the article on line about Yager,” he wrote. “[They] were indicating that the Deputy Treasurer was a lucrative office… The legislature understands differently. This statute directly contradicts the newspaper article on this point. The county is a political subdivision and a deputy treasurer is a deputy of an officer (the treasurer) of the political subdivision.”
Mr. Zoeller, however, points out that the statute exempting deputies from the constitution has been written, but never tested. He claims it to also be an example of how the state’s lawmakers cannot make exceptions to the lucrative office provision simply by passing legislation.
“Indiana Code section 5-6-4-3 has not been challenged or construed by a court… Accordingly, a court may reach a different result,” he wrote. “When the legislature creates a statute that appears to create an exception to the prohibition of holding dual offices, concern arises over whether the legislature’s act improperly encroaches upon (the constitution).”
