Could a full-time district attorney employee serve as a part-time deputy clerk in two parishes?

Plain-English summary

In 2014, the Louisiana Attorney General concluded that the Dual Officeholding and Dual Employment Law did not prohibit a full-time district attorney staff employee from also serving as a part-time deputy clerk in each of two parishes for the limited purpose of executing subpoenas. The district attorney's office was not a parish governing authority under the restriction discussed, and the two deputy positions were part-time rather than additional full-time posts.

The AG separately flagged concern under the public payroll fraud statute if multiple paid roles did not involve services actually rendered. It did not determine that anyone had violated that statute. It also declined to answer ethics-law questions, referring them to the State Board of Ethics.

Currency note

This opinion was issued in 2014. 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.

Common questions

Did two part-time deputy clerk appointments change the dual-officeholding answer?

No. The AG expressly said the law did not prohibit the described full-time local employment together with two separate part-time appointed positions.

Why did the parish-governing-authority restriction not apply?

The opinion said the district attorney's office was a separate political subdivision and was not the parish governing authority named in that restriction.

Did the AG approve the arrangement under payroll or ethics laws?

No. It expressed payroll-fraud concerns, made no finding of fraud, and left ethics questions to the Board of Ethics.

Background and statutory framework

The district attorney's office wanted a support employee deputized by clerks in both parishes of its judicial district to execute subpoenas. The AG classified the full-time staff position and limited part-time deputy appointments under the Dual Officeholding and Dual Employment Law, then identified separate concerns outside its conclusion.

Citations

• La. R.S. 42:63 (D)(E) (dual-officeholding restrictions discussed).
• La. R.S. 14:138 (public payroll fraud provision flagged by the opinion).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/14-0058

Original opinion text

~ta:t.e of 1Jlouishtna:
DEPARTMENT OF JUSTICE
P.O. BOX 94005
BATON ROUGE
70804-9005
JAMES D. "BUDDY" CALDWELL
ATIORNEY GENERAL

JUN 12 2014
OPINION 14-0058

78 DUAL OFFICEHOLDING

    Houston C. Gascon                                La. Const. art. V, § 28       La. RS. 13:910       La. RS. 14:138

First Assistant District Attorney
La. RS. 42:61, et seq.
22nd Judicial District
701 N. Columbia Street
The provisions of the Dual Officeholding and Dual Employment Law
Covington, Louisiana 70433
do not prohibit a full time employee of the District Attorney's Office
from being deputized as a part time deputy Clerk of Court for the limited purpose of executing subpoenas in two different parishes.
Dear Mr. Gascon:

You have requested an opinion of the Attorney General as to whether the Dual Officeholding Laws prevent a member of the District Attorney's support staff from being deputized by the Clerk of Court to sign subpoenas in two separate parishes. 1 Your request has been assigned to me for research and reply.

The provisions of the Dual Officeholding and Dual Employment Law, found at La. R.S.
42:61, et seq., govern questions concerning the ability to hold two or more public offices and/or positions simultaneously. Classifying the correct nature of the positions is essential for the purposes of applying the dual officeholding provisions.

The District Attorney's Office and the Clerk of Court are considered separate political subdivisions of the state. 2 Based on the information you provided, the member of the District Attorney's support staff would be considered full time,3 local employment. 4

A full time employee of the District Attorney's Office is not prohibited from being appointed as a part time deputy Clerk of Court by the Dual Officeholding and Dual Employment Law. La. Atty. Gen. Op.
No. 13-0041. Your question builds upon that opinion and seeks to know if a full time employee of the district attorney's office can be appointed a.s a part time deputy clerk of court in two different parishes.
2 The dual officeholding law defines "political subdivision" as a parish, municipality, and any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions. In addition for the purposes of this Part, mayor's courts, justice of the peace courts, district attorneys, sheriffs, clerks of court, coroners, tax assessors, registrars of voters, and all other elected parochial officials shall be separate political subdivisions. La. RS. 42:62(9).
3 The dual officeholding law defines "full time" as 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. La. RS. 42:62(4).
4 The dual officeholding law defines "employment" as any job compensated on a salary or per diem basis, other than an elective or appointive office or employment. La. RS. 42:62(3).

Page 2

------------------.-­ _ -
..

OPINION 14-0058
Mr. Houston C. Gascon
Page No.2

Your request notes that the judicial district you serve includes two separate parishes and states an employee with the ability to sign subpoenas in both parishes would be an asset to the District Attorney's Office.

The Clerk of Court, an elected position, is authorized by the Louisiana Constitution to appoint deputy clerks with the duties and powers provided by law. La. Const. art. V, § 28; See also La. R.S. 13:910. Based on the specific nature of these deputy clerk positions, which are solely for executing subpoenas, these. positions would be considered part time5 local appointive positions. 6

The most applicable provisions of the Dual Officeholding and Dual Employment Law are La. R.S. 42:63 (D)(E), which state, in pertinent part:

D.... no sheriff, assessor, or clerk of the court shall hold any office or employment under a parish governing authority or school board, nor shall any member of any parish governing authority or school board hold any office or employment with any sheriff, assessor, or clerk of court.

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

The District Attorney's Office is not the parish governing authority, therefore La. R.S.
42:63(D) is not violated. Further, since the appointive position as a deputy clerk would not be full time, La. R.S. 42:63(E) does not prohibit a person from holding both of these positions simultaneously. Further, the Dual Officeholding and Dual Employee Law does not prohibit someone from holding full-time, local employment and two separate part­ time, appointive positions.

Please note that our expressed opinion relative to state law is limited to an examination of the dual officeholding provisions. However, we do have some reservations about a full time employee with the District Attorney's Office working part time for two separate parishes as a deputy clerk of the court based on La. R.S. 14:138. 7

5
The dual officeholding law defines "part time" as 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. La. R.S. 42:62(5).
6 The dual officeholding law defines "appointive office" as 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. La. R.S. 42:62(2).
7 La. R.S. 14:138 provides, in pertinent part:
A. Public payroll fraud is committed wh~n:

Page 3

OPINION 14-0058
Mr. Houston C. Gascon
Page No.3

Additionally, we do not opine upon questions relative to the applicability of the
provisions of the Louisiana Code of Governmental Ethics, La. R.S. 42:1111, et seq.
We recommend that you address these concerns with the Louisiana State Board of
Ethics. The Board may be contacted at P.O. Box 4368, Baton Rouge, Louisiana 70821,
or by phone at 225-219-5600.

We hope that this opinion has adequately addressed the legal issues you have raised.
If our office can be of any further assistance, please do not hesitate to contact us.

With best regards,

JAMES D. "BUDDY" CALDWELL
ATIORNEY GENERAL

BY: -=i'--'---''---'~,.L..!~--------
Jes ica MP Thornhill
Assistant Attorney General
JDC: JMPT

(1) Any person shall knowingly receive any payment or compensation, or knowingly permit his name to be carried on any employment list or payroll for any payment or compensation from the state, for services not actually rendered by himself, or for services grossly inadequate for the payment or compensation received or to be received according to such employment list or payroll; or (2) Any public officer or public employee shall carry, cause to be carried, or permit to be carried, directly or indirectly, upon the employment list or payroll of his office, the name of any person as employee, or shall pay any employee, with knowledge that such employee is receiving payment or compensation for services not actually rendered by said employee or for services grossly inadequate for such payment or compensation.