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It would be a violation of the Constitution to accept an appointment with the Board of HMCP while being a member of the legislature.

The case of State ex rel. Barney v. Hawkins, 79 Mont. 506, 257 P. 411 (1927), is the landmark case in Montana construing the meaning of a civil office within the context of Article V, section 9, of the Montana Constitution. Barney has established a five-part test for determining whether an office is a civil office. The Montana Supreme Court stated:

... we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity and not be only temporary or occasional. Barney at 528-29.

For purposes of this hypothetical question, it is important to examine the function of HMCP using the Barney test elements. The Board is statutorily created and attached to the Department of Public Health and Human Services (for administrative purposes only), fulfilling the first element and the fifth element of the Barney test. Additionally, the Board is required to seek federal grant money for the purpose of helping Montana citizens with food and shelter, it approves temporary work programs that are funded with state money, and it promulgates administrative rules regarding grant conditions, fulfilling the second, third, and fourth elements of the Barney test. As a whole, the Board should be considered a civil office for the purposes of Article V, section 9, of the Montana Constitution. Therefore, a legislator could not be appointed to the Board during that legislator's term of office, and a legislator could not resign from the Legislature and be appointed to the Board.

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Last Modified:
1/4/2015 9:28:40 PM