Could an attorney serve part-time as an assistant district attorney in both St. John the Baptist Parish and Orleans Parish?

Plain-English summary

An attorney asked whether he could serve as an assistant district attorney in both St. John the Baptist Parish and Orleans Parish. In Opinion 03-0290, the AG concluded that the dual-officeholding law did not prohibit the two positions because both were part-time. It characterized an assistant district attorney as holding an appointive office and explained that the cited prohibition concerned simultaneous full-time appointive offices or employment.

The requester said the Orleans work might be paid by state warrant or under contract. The opinion said compensation method generally did not determine whether holding the offices was permitted. It also observed that dual-officeholding rules generally did not apply to a position held solely under contract, and it found a separate state-employment restriction inapplicable because neither position contemplated state employment.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant at issuance

Attorney holding the posts

On the facts supplied, both assistant district attorney positions were part-time, and the AG said their simultaneous holding was lawful under the provisions it examined. The opinion focused on the nature and hours of the positions rather than the source of compensation.

District attorneys

The opinion cited appointment authority for assistant district attorneys and treated the roles as appointive offices. Its result depended on the stated part-time status of both posts.

Common questions

Q: Could one attorney be a part-time assistant district attorney in both parishes? A: The AG said yes on the facts presented.

Q: Did payment by a state warrant make the Orleans role incompatible? A: The opinion said compensation method generally did not control the dual-officeholding question and found no state employment in either position.

Q: What if the Orleans role was performed under a contract?
A: The AG said dual-officeholding provisions generally did not apply to positions held under contract, because those rules concerned public offices or employment.

Background and statutory framework

The AG used R.S. 42:62(2) to classify assistant district attorney service as an appointive office and cited LSA-R.S. 16:51(A) on appointments. It then applied the full-time prohibition in R.S. 42:63(E) and the part-time definitions in R.S. 42:62(4) and (5). The opinion also discussed R.S. 39:1498 when addressing the possibility of a contract.

Citations and references

Statutes quoted or cited: R.S. 42:62(2); LSA-R.S. 16:51(A); R.S. 42:63(E); R.S. 42:62(4); R.S. 42:62(5); R.S. 39:1498.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/03-0290

Original opinion text

One American Place
301 Main Street, Suite 600
DEPARTMENT OF JUSTICE
P.O. Box 94005
CIVIL DIVISION
TEL.: (225) 342-7013
BATON ROUGE
FAX: (225) 342-2090

RICHARD P. IEYOUB
70804-9005
AI-I’ORN EY GENERAL

August 1,2003
OPINION 03-0290

Individual may serve as part-time
Mr. Robert M. Becnel
prosecutor for St. John the Parish
Attorney at Law
and Orleans Parish.
425 West Airline Highway, Suite B
LaPlace, LA 70068

Dear Mr. Becnel:

You ask this office if you may serve as assistant district attorney for St. John the Baptist Parish and for Orleans Parish. Both positions are part-time.

Your concern stems from the fact that the position with Orleans Parish will be paid either by state warrant or under contract. Compensation, in general, has no effect upon the permissiveness or disallowance of the simultaneous holding of offices under the Dual Officeholding and Dual Employment Laws, R.S. 42:51, et seq.

The determinative criteria are the types of positions to be held. An assistant district attorney holds "appointive office" as defined by R.S. 42:62(2)1; see also Article V, §26(A) of the Louisiana Constitution (1974) stating that "a district attorney may select assistants as authorized by law." LSA-R.S. 16:51(A) states that "the district attorney of each judicial district and the parish of Orleans shall appoint a first assistant district attorney and such other assistant district attorneys for his respective judicial district or the parish of Orleans as may be necessary." Further, LSA R.S. 16:51(B) provides that "assistant district attorneys serve at the pleasure of and may be removed at the discretion of the district attorney."

The law prohibits the holding of two full-time appointive positions, as R.S. 42:63(E) states:

1 R.S. 42:62(2) states:
(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.

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Mr. Robert M. Becnel
OPINION 03-0290
Page 2

E. No person holding a full-time appointive office or full-time employment in the government of this state or of a political subdivision thereof shall at the same time hold another full-time appointive office or full-time employment in the government o~" the state of Louisiana, in the government of a political subdivision thereof, or in a combination of these.

The prohibition is inapplicable, as both positions here under consideration are held on a "part-time" basis as defined by statute. See R.S. 42:62(4) and (5).2

Further, dual-officeholding provisions are generally inapplicable when a position is held under contract. Dual-officeholding provisions are applicable only when the facts involve the holding of two or more public offices or employment.

Finally, since neither position contemplates state employment, the prohibition of R.S. 39:14983 is inapplicable. See Attorney General Opinion 99-5.

2 R.S. 42:62(4) and (5) provide:
(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. (5) "Part-time" means the period of time which a person normally works or is expected to work in an appointive office or employment which is less than the number of hours of work defined in this Section as full time. 3 R.S. 39:1498 provides in part:
§ 1498. Approval of contract; penalties

A. Before approving a proposed contract for professional, personal, consulting, or social services, the director of the office of contractual review or an assistant shall have determined that: (1) All provisions of R.S. 39:1497 have been complied with. (2) The using agency has statutory authority to enter into the proposed contract. (3) The contract will not establish an employer/employee relationship between the state or the using agency and any prospective contractor. (4) No current state employee will engage in the performance of the proposed contract except as provided for in R.S. 39:1498.2. (5) No using agency has previously performed or contracted for the performance of tasks which would be substantially duplicated under the proposed contract without appropriate wdtten justification. (6) There has been appropriated or otherwise lawfully made available and ready for expenditure sufficient monies for payment of the services called for in the contract, at least for the applicable fiscal year. (7) The contracting using agency has specified the purpose, duration, specific goals and objectives, measures of performance, and a plan for monitoring the services to be provided under the contract. (8) The using agency has a wdtten plan for the monitoring of the contract and such monitoring plan has been submitted in accordance with rules and regulations adopted by the office of contractual review. (9) The provisions of R.S. 12:25(E) have been complied with, if the contract is with a business corporation, the provisions of R.S. 12:205(E) have been complied with, if the contract is with a nonprofit corporation, or the provisions of R.S. 12:304(A)(11) have been complied with, if the contract is with a foreign corporation. B. Any corporation which fails to make complete disclosure of ownership, directors, and officers as required by law shall be required, as a penalty, to refund any funds received by that corporation from the state for the contract.

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Mr. Robert M. Becnel
OPINION 03-0290
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We conclude the law does not prohibit the simultaneous holding of these positions.

Very truly yours,

RICHARD P. IEYOUB
ATTORNEY GENERAL

BY
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