Opinion and Forefront

BOEHM: State employees hang in court balance

April 9, 2011

Ted BoehmLast month in Forefront, Julia Vaughn of Common Cause noted some of the policy issues presented when public employees serve on legislative bodies of local government. She cited the example of a township fire department under the control of firefighters elected to township positions resulting in fire department per-capita expense over 13 times the average township. She also noted the problems for an organization if it is afraid to discipline or fire an employee for fear of legislative retaliation.

These are indeed important policy considerations, but this is not a new issue, and there is a constitutional dimension to this debate. The framers of the Indiana Constitution had something to say about it almost 200 years ago.

Division of responsibility and power among the branches of government supplies one of the critical checks and balances that were embedded in our federal Constitution to control the abuse or misuse of power that was so well understood by colonial Americans.

The doctrine of separation of powers was to divide authority to guard the public against potential tyrants. The federal Constitution accomplished this by enumerating the powers granted to each of the three branches of the federal government, and providing that all others are reserved to the states or the people.

As originally adopted and today, the federal Constitution does not speak directly to the personal advantages and conflicts of interest that can arise from dual public employment, and contains no separation of powers provision directed at individual government officials.

By the time our original state Constitution was adopted in 1816, the virtues and benefits of separation of powers were more fully understood to address both conflicts of interest and governmental overreaching. There are two provisions of our state Constitution that do operate directly on individual officials.

Article II, Section 9, of the Indiana Constitution prohibits the same person from holding two “lucrative offices.” This is essentially aimed at double dipping at the public trough, though it has been held to permit two paid public jobs as long as both are not “offices,” which the courts have found to include only policy-setting jobs like mayor or sheriff.

Many of the court challenges to dual public positions over the years have turned on this clause, and few have been successful. The courts have permitted municipal and county law enforcement officers, teachers and firefighters to hold elective positions on the theory that they hold their regular career positions without defined terms and in other respects are treated as employees, not “officials.”

Article III, the separation of powers provision of the Indiana Constitution, in addition to enumerating the powers of each branch of state government, provides in direct terms that “no person, charged with official duties under one of these departments, shall exercise any of the functions of another.” This language was adopted in the original 1816 Constitution and was retained by the 1851 Constitutional Convention without much debate.

The Article III term “official duties” of one branch, tracks the two “lucrative offices” provision, but the separation of powers provision of Article III goes further by prohibiting anyone “charged with official duties” in one branch from “discharging the functions” of another.

Unlike the “lucrative office” provision, Article III can be read to apply where the individual is an “official” of one branch, but merely carries out “functions” of another branch as its employee.

A panel on the Court of Appeals ruled in 1984 that a county police officer—an employee of the executive branch—is prohibited from sitting on the county council as an official of the legislative branch of county government. In 1995, a different panel ruled to the contrary.

The Indiana Supreme Court has never directly addressed the full scope of this provision as applied to state or county legislative officials holding positions in the executive or judicial branch. If the Supreme Court agrees with the 1984 opinion, the effect would presumably be to bar state employees from serving in the legislature, a holding of no small consequence.•

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Boehm is a retired Indiana Supreme Court justice who previously held senior corporate legal positions and helped launch amateur sports initiatives in Indianapolis. Send comments on this column to ibjedit@ibj.com.

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