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Hypothetical Situation No. 2

At the conclusion of the regular legislative session, the Governor's Office asks you if you are interested in being appointed to the position of Executive Secretary to the Cold Hard Ca$h Board (CHCB). The orientation materials contained the full text of Article V, section 9, of the Montana Constitution, which provides as follows:

Disqualification. No member of the legislature shall, during the term for which he shall have been elected, be appointed to any civil office under the state; and no member of congress, or other person holding an office (except notary public, or the militia) under the United States or this state, shall be a member of the legislature during his continuance in office.

You remember from your orientation materials that 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 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.

You pull out the Montana Code Annotated, and learn that the CHCB is statutorily created and attached to the Department of Commerce (for administrative purposes only), it has 6 voting members that are appointment by the Governor, it is required to provide grant money to local governments for multimillion dollar infrastructure projects, it promulgates numerous administrative rules regarding grant conditions, it is a quasi-judicial board for the purpose of hearing construction contract grievances, and it has a variety of other important roles. The Executive Secretary position is not constitutionally or statutorily created, but it is common for the Executive Secretary to the Board. The position traditionally pays $150 per day when the committee meets, but the amount of compensation is determined by the Board.

Question: Are you permitted to serve as Executive Secretary to the CHCB?

ANo, the $150 per day salary is an impermissible benefit.
BYes, because you desire to use your influence to obtain grants for local governments in your district.
CNo, it would be a violation of the Constitution to accept an appointment as the Executive Secretary while being a member of the legislature.
DYes, since the Executive Secretary is not considered a "civil officer" under the Constitution.

Questions: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

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Last Modified:
1/4/2015 12:30:49 PM