Can a working deputy district attorney serve in the Oregon Legislative Assembly, including while on session-length leave?

Plain-English summary

A bipartisan group of legislative leaders asked the AG whether a working deputy district attorney could serve in the Oregon Legislative Assembly. If not, could they serve while on a session-length leave of absence?

Attorney General Hardy Myers concluded no to both. Oregon's Constitution contains an explicit separation-of-powers clause in Article III, section 1: "no person charged with official duties under one of these departments, shall exercise any of the functions of another." The opinion notes that Oregon courts read this clause under a "strict prohibitory interpretation." Prosecution is "the archetypal executive function," and Oregon courts have repeatedly classified district attorneys and their deputies as executive-branch state officers, even though they are appointed by counties and paid mostly with county money. The functional test from Monaghan v. School District No. 1 (1957) treats employees performing statewide functions as members of the relevant state branch for separation-of-powers purposes.

The leave-of-absence theory didn't help. A 1968 AG opinion (33 Op Atty Gen 537) had concluded that an employee on leave still counts as a state employee, because the leave doesn't break the relationship of potential pressure between the employer and the legislator. The opinion also touched briefly on Article II, section 10 (dual lucrative offices), noting that deputy DAs hold lucrative offices and legislators hold lucrative offices, but the leave-of-absence question under that clause was left open.

Currency note

This opinion was issued in 1998. 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

Q: But deputy district attorneys are county employees, aren't they?
A: Technically yes. ORS 8.760 makes them county appointees paid with county funds. But the Monaghan test asks about the function being performed, not just the paymaster. A deputy DA conducts state criminal prosecutions "on behalf of the state" (ORS 8.660(1)) and enforces state criminal law. Functionally, they perform state executive-branch work, even while being formally a county employee.

Q: Why doesn't a leave of absence solve the problem?
A: An employee on leave is still an employee. The pressure that worries Article III, section 1, the prospect that an executive-branch supervisor could lean on a legislator (or vice versa) about future salary, position, or assignments, persists during a leave. The opinion quotes the 1968 advice: "The constitutional prohibition is designed to avoid the opportunity for abuse arising out of such dual service whether it exists or not."

Q: What's Article XV, section 8?
A: A constitutional amendment specifically authorizing school and university employees to serve in the Legislative Assembly. It's an explicit override of Monaghan's school-teacher holding. There is no parallel constitutional amendment for prosecutors.

Q: What about Article II, section 10?
A: That's the "lucrative office" clause. It would also bar simultaneous service while actively employed. The opinion left open the harder question of whether a complete leave (no pay, no duties) might satisfy section 10, because section 1 already disposed of the question.

Q: How does this affect a deputy DA who wants to run for the Legislature?
A: Running is one thing, serving is another. To serve, the person has to fully sever the deputy DA position. A leave is not enough; resignation is required. The same logic would apply to any other prosecutor or other clearly executive-branch state employee.

Background and statutory framework

Article III, section 1 of the Oregon Constitution sets up the separation of powers and prohibits anyone "charged with official duties under one of these departments" from "exercis[ing] any of the functions of another, except as in the Constitution expressly provided." The Oregon Supreme Court has read this categorically.

The functional test from Monaghan v. School District No. 1 (1957) asks whether the employee's job involves (1) the exercise of a state government function and (2) in a different branch from the position the person seeks. A teacher employed by a school district passed both prongs because public education was a statewide function delegated to a "civil division of the state." The same logic applies to deputy DAs. Statewide function (criminal prosecution), conducted "on behalf of the state" (ORS 8.660(1)), in the executive branch (State v. Coleman; Gibson v. Kay).

The lucrative-office analysis under Article II, section 10 has five factors from Morris v. Parks and Reising v. City of Portland: compensation, statutory creation, exercise of sovereign power, public concern, and non-temporary nature. Deputy DAs and legislators both check all five.

Citations and references

Constitutional provisions and statutes:

• Article III, section 1; Article II, section 10; Article VII, section 17; Article VIII, section 3; Article XV, section 8, Oregon Constitution
• ORS 8.660(1), district attorney prosecution duties
• ORS 8.760, deputy DA appointment and pay
• ORS 8.780, deputy DA functions

Cases:

• Monaghan v. School District No. 1, 211 Or 360, 315 P2d 797 (1957), functional state-government test
• In the Matter of Sawyer, 286 Or 369, 594 P2d 805 (1979), no simultaneous state branch service
• State v. Coleman, 131 Or App 386, 886 P2d 28 (1994), DAs as executive-branch prosecutors
• Gibson v. Kay, 68 Or 589, 137 P 864 (1914), DA functions as executive-branch
• Morris v. Parks, 145 Or 481, 28 P2d 215 (1934), lucrative office factors
• Reising v. City of Portland, 57 Or 295, 111 P 377 (1914)

Source

• Landing page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
• Original PDF: https://www.doj.state.or.us/wp-content/uploads/1998/02/op8254.pdf

Original opinion text

February 10, 1998

No. 8254
This opinion responds to a question concerning eligibility to serve in the Oregon Legislative Assembly presented by The
Honorable Brady Adams, President of the Senate; The Honorable Cliff Trow, Senate Democratic Leader; The Honorable
Lynn Lundquist, Speaker of the House; and The Honorable Kitty Piercy, House Democratic Leader.
QUESTION PRESENTED
Is a deputy district attorney, actively employed as such, eligible to serve as a member of the Oregon
Legislative Assembly? If not, would he or she be eligible while on a leave of absence during the legislative
session?
ANSWER GIVEN
A deputy district attorney may not serve in the Oregon Legislative Assembly, either while actively employed or on a leave
of absence.
DISCUSSION
Two provisions of the Oregon Constitution present obstacles to a deputy district attorney who would like to serve in the
Oregon Legislative Assembly: Article III, section 1, requiring separation of powers, and Article II, section 10, prohibiting
the simultaneous holding of more than one lucrative office. Because we conclude that the first of these provisions disposes
of the issue, we address the second only briefly.
I. Separation of Powers
Unlike the Federal Constitution, which establishes separation of powers only by implication, the Oregon Constitution
contains a specific requirement:
The powers of the Government shall be divided into three seperate [sic] departments, the Legislative, the
Executive, including the administrative, and the Judicial; and no person charged with official duties under
one of these departments, shall exercise any of the functions of another, except as in the Constitution
expressly provided.
Or Const Art III, § 1 (emphasis added). The emphasized clause prohibits members of one branch from undertaking a duty
or function that belongs in another branch; it prohibits members of one branch, in performing a duty appropriate to that
branch, from doing so in a way that unduly interferes with the operation of another branch's function; and, most relevant
here, it prevents the same person from simultaneously performing duties as a member of more than one branch. See, e.g.,
In the Matter of Sawyer, 286 Or 369, 594 P2d 805 (1979) (same person may not simultaneously work in State System of
Higher Education, an executive agency, and serve as a judge, within the Judicial Branch). In construing this provision, the
Oregon courts have imposed a "strict prohibitory interpretation." 43 Op Atty Gen 205, 208 (1983).
In order for simultaneous tenure in two positions to violate the "dual function" provision, each position must (1) involve
the exercise of a state government function, and (2) occur in a different branch of state government. Monaghan v. School
District No. 1, 211 Or 360, 370, 373, 315 P2d 797 (1957); 37 Op Atty Gen 554, 563-64 (1975) (dual function prohibition
reaches only to state government positions). Since service as a representative or senator in the Legislative Assembly is
obviously the exercise of a government function in the legislative branch, the only issues presented here focus on
employment as a deputy district attorney. If such employment is a function of either the executive or judicial branch of
state government, then simultaneous tenure in that job and the Legislative Assembly violates Article III, section 1, of the
Constitution.
A. "Executive" Function
While some government functions do not lend themselves readily to classification within one or another branch, the
prosecutorial function of the district attorney is not among them. The prosecution of crimes is, in fact, the archetypal
executive function. As the Court of Appeals has recently noted, "[T]hroughout Oregon's history, district attorneys have
been regarded as * * * prosecutors for the executive branch." State v. Coleman, 131 Or App 386, 390, 886 P2d 28 (1994)
(citing cases).

District attorneys appoint their deputies to whom they may delegate some of their functions, ORS 8.780,(1) including
prosecution of crimes, ORS 8.660(1).(2) Therefore, deputy district attorneys clearly perform executive functions.
B. "State" Function
Less clear is whether deputy district attorneys perform a state government function. In a sense, deputy district attorneys are
county employees. They are appointed under
authority that lies not in the state, but in the county of their employment. ORS 8.760. That county also fixes their salary,
which comes principally from county funds. Id.
Nonetheless, we believe that a deputy district attorney performs functions within the executive branch of state government.
In Monaghan v. School District, the Oregon Supreme Court examined whether a public school teacher could serve as a
legislator. In holding that he could not, the court concluded that a teacher employed by a school district, a self-contained
political entity, was nonetheless performing state functions for purposes of Article III, section 1.(3) The court cited several
factors leading to this conclusion.
First, education is "not regarded as a local matter. It is a governmental obligation of the state" required by a constitutional
mandate to the legislature to provide a system of public education. Monaghan, 211 Or at 373 (citing Or Const Art VIII, §
3). Likewise, law enforcement is a matter of statewide concern. Deputy district attorneys are sworn to conduct
prosecutions "on behalf of the state," ORS 8.660(1), and are constitutionally designated as "the law officers of the State"
who "shall perform" their law enforcement duties "as the Legislative Assembly may direct." Or Const Art VII, § 17.
Second, school districts are created by the legislature and are "civil division[s] of the state." Monaghan, at 374. Likewise,
counties are political subdivisions of the state.
Third, a teacher, although employed by a school district, is nonetheless disseminating the state's educational standards and,
when so engaged, is "exercising one of the functions of the executive department of our state government." Monaghan, at

376. Likewise, the district attorney and his or her deputies are charged with enforcing state laws and conducting
     prosecutions for violations of state law "on behalf of the state." ORS 8.660(1).
     Thus, Monaghan establishes a functional test for determining whether a particular public employee performs state
     functions for purposes of Article III, section 1. If an employee or officer performs functions of statewide importance, that
     emanate from the state government, on behalf of the state government, as part of a governmental unit created by state
     government, that employee will be deemed to perform functions that may be within one of the branches of state
     government so as to trigger separation of powers concerns. Under that test, deputy district attorneys perform functions of
     the executive branch of state government. Accord State v. Coleman, 131 Or App at 390 (district attorneys historically
     regarded as "state officers who act as prosecutors for the executive branch"); see also Gibson v. Kay, 68 Or 589, 137 P 864
     (1914) (dicta; appointee of corporation commissioner exercising functions of district attorney would be member of state
     executive branch).
     This conclusion is consistent with our earlier advice. Although we did conclude in one opinion that Article III, section 1,
     did not reach to county government employees, 37 Op Atty Gen 554, 564 (1975), that opinion deals with county
     employees performing county functions, or employees such as commissioners or members of county courts who perform
     "commingl[ed]" functions that cannot be identified with a particular branch. Id. Two years later, we clarified our earlier
     opinion by concluding that Article III, section 1, does apply to a county court judge with jurisdiction over state law matters
     because such a judge "exercises functions of the judicial branch of state government, whether or not actually deemed to be
     a state judicial officer." 38 Op Atty Gen 1288, 1291 (1977). By this clarified logic, a deputy district attorney, performing
     state-mandated functions and executing state criminal laws, is a member of the executive branch of state government
     despite the fact that he or she is technically employed by a county. See also 26 Op Atty Gen 185 (1953) (Article III,
     section 1, dictates that school district board member cannot serve in legislature); 25 Op Atty Gen 201 (1951) (county dog
     control board member); 23 Op Atty Gen 334 (1947) (county public welfare commissioners).
     We therefore conclude that, under Article III, section 1, of the Oregon Constitution, a person actively employed as a
     deputy district attorney may not simultaneously serve in the Oregon Legislative Assembly.
     C. Effect of "Leave of Absence"
     The conclusion does not change if the deputy district attorney takes a leave of absence from that position for the duration
     of the legislative session. We have previously concluded that a state employee on a leave of absence is nonetheless still a

state employee for purposes of the Article III, section 1, "dual function" analysis. 33 Op Atty Gen 537, 539 (1968). We
quote from that prior opinion at some length, because we continue to find the reasoning persuasive:
A person on a leave of absence is generally considered to be continuing in his employment. The term "leave
of absence" has been held to signify nothing more than an authorized temporary absence from work for
other than vacation purposes. * * *
It could be argued that a state employe on leave of absence does not "exercise any of the functions" of the
executive department and that by serving in the legislature he would not violate the provisions of Article III,
§1***.
However, the court's opinion in Monaghan v. School District No. I, supra, compels the conclusion that the
prohibition of Article III, § 1, would apply in such a case because the entire purpose of this constitutional
provision would be violated where a person continuing in employment as a state employe were
simultaneously serving in the legislature. * * * [T]he Oregon court [in Monaghan] explained the reason
why Article III, § 1, was included in the constitution and indicated the scope of its application:
The constitutional prohibition is designed to avoid the opportunity for abuse arising out of
such dual service whether it exists or not. * * *

• • • Conceivably the school board could say to its employee who is serving in the
      legislature, "You must vote in favor of certain bills that are advantageous to us * * * . If you
      do we will increase your salary and if you do not you will be penalized in your position in
      certain respects." * * * Monaghan v. School District No. 1, (1957) 211 Or at 360, 376, 377 *
• *.
  [A state employee on leave] remains, in a true sense, a state employe and could be under the potential
  pressure of the state agency employing him, as described in the Monaghan case. As such, it would violate
  the intended purpose of Article III, § 1, to consider that while on simple leave of absence from his state job
  he could serve as a member of the legislature.
  33 Op Atty Gen at 539 (citations omitted).
  For these reasons, the fact that a deputy district attorney is on a leave of absence from that position does not alter our
  conclusion that Article III, section 1, precludes him or her from serving in the Legislative Assembly.
  II. Multiple Lucrative Offices
  Because we conclude that Article III, section 1, prohibits a deputy district attorney from serving in the Legislative
  Assembly, we need not consider at length whether Article II, section 10, has the same effect. That section provides:
  No person holding a lucrative office, or appointment under the United States, or under this State, shall be
  eligible to a seat in the Legislative Assembly; nor shall any person hold more than one lucrative office at
  the same time, except as in this Constition [sic] expressly permitted. * * *
  Or Const Art II, § 10.
  A position is a "lucrative office" under this provision if (1) a salary or other compensation beyond expenses is attached to
  it; (2) it is created by statute or constitution; (3) its holder exercises part of the sovereign power of government; (4) in a
  matter of public concern; and (5) the position is not temporary or intermittent. Morris v. Parks, 145 Or 481, 28 P2d 215
  (1934); Reising v. City of Portland, 57 Or 295, 111 P 377 (1914). "[T]here is no doubt that the position of deputy district
  attorney is * * * a lucrative public office." 11 Op Atty Gen 469, 472 (1923); 21 Op Atty Gen 226 (1943). The fact that a
  deputy district attorney is a county employee has no bearing on the analysis under Article II, section 10. See id.; 25 Op
  Atty Gen 237 (1951) (county school superintendent). Since "every legislator is the incumbent of a lucrative office," 23 Op
  Atty Gen 334, 335 (1947), it is apparent that a deputy district attorney on active duty may not serve in the legislature.
  The effect of a leave of absence, however, is not clear. We have concluded on several occasions that the prohibition
  against dual lucrative employment operates even when the officer waives compensation for one of the positions. 21 Op
  Atty Gen 204, 205-6 (1943); 25 Op Atty Gen 36, 37 (1950); 32 Op Atty Gen 25 (1964). Further, if a leave of absence does
  not insulate an official from the dual function prohibition of Article III, section 1, it would seem logical that the same
  result would apply under Article II, section 10.
  These considerations, however, are not conclusive. Although foregoing compensation for one of the offices might not
  allow a dual office-holder to escape the constitutional prohibition, foregoing compensation and also foregoing
  performance of any duties for one office might be a different matter. In addition, because Article III, section 1, and Article
  II, section 10, are presumably designed to prevent different evils, the scope of one is not necessarily the same as the scope
  for the other. For example, while the separation of powers provisions in Article III are calculated to prevent the despotism
  that can result from the accumulation of too much power in one branch of government, the multiple employment
  prohibition of Article II may be calculated to discourage the abuses that result from "moonlighting." If that is the case, then
  serving in one lucrative office while on leave from another would not amount to a violation.
  Because no appellate cases or Attorney General opinions provide any guidance on this issue, and because we can fully
  answer the questions presented without resolving whether serving in one lucrative office while on leave from another
  would violate Article II, section 10, we leave a full treatment to another occasion.
  HARDY MYERS
  Attorney General
  1. ORS 8.780 provides:
  A district attorney shall appoint deputies. A deputy district attorney shall have the same qualifications as the district attorney, and subject to the direction of the district attorney, has the same functions as the district attorney.

2. ORS 8.660(1) provides:
   The district attorney shall attend the terms of all courts having jurisdiction of public offenses within the district attorney's county, and, except as otherwise provided in this section, conduct, on behalf of the state, all prosecutions for such offenses therein.

3. The Constitution has since been amended to permit school and university employees to serve in the Legislative Assembly. Or Const Art XV, § 8.