Alabama Advisory Opinions January 29, 2021: AGO 2021-15

Advisory Opinion Text

Honorable Robert G. Methvin, Jr.

President

Alabama state Bar

415 Dexter Avenue

Montgomery, Alabama 36104

District Attorneys - Supernumerary Status - Office of Profit - State Bar Association

The position of the Interim Executive Director of the Alabama State Bar is not an office of profit under section 280 of the Alabama Constitution or Section 36-2-1 of the Code of Alabama.

Dear Mr. Methvin:

This opinion of the Attorney General is issued in response to your request on behalf of the Alabama State Bar.

QUESTIONS

1. Is the position of Interim Executive Director of the Alabama State Bar ("Bar") an office of profit under Section 280 of the Alabama Constitution or Section 36-2-1 of the Code of Alabama?

2. If so, then is a supernumerary district attorney, who agrees to not conduct any supernumerary work while serving as interim executive director, barred from being compensated while serving as the interim executive director?

FACTS AND ANALYSIS

In your request, you informed this Office that the Bar is contemplating hiring a supernumerary district attorney as the interim executive director of the Bar. You further elaborate as follows:

The Bar is the regulatory authority for the legal profession in Alabama, with approximately 18,000 members and 35 employees. The Bar is created by the legislature and is subject to certain legislative controls relating to its fiscal operations. Most of the Bar's regulatory responsibilities are governed by the authority vested in the Alabama Supreme Court. The Board of Bar Commissioners ("Board") is the policymaking body of the Bar. The Executive Director is hired by and reports to the Board. The position of executive director, including its duties and compensation, are not created by statute. In contrast, the executive director is created by the Board to run the day-to-day operations of the Bar.

On October 23, 2020 the executive director resigned. In accordance with the employee handbook, a management team of four department heads was activated to carry out daily Bar operations until a new executive director could be hired. The management team is currently tasked with accomplishing their full-time duties, as well as handling the executive director duties. The President of the Bar, a volunteer with a full-time private law practice, has been required to spend extra time on Bar work since the executive director vacancy. A search firm and the Executive Director Search Task Force have targeted April 2, 2021 as the date to select a slate of executive director candidates. It is anticipated the Board will select a new executive director in late April or early May 2021. Meanwhile, the work of the Bar must continue, and it is apparent that the staff and volunteers cannot continue to take up the slack. The Bar has decided to hire an interim executive director.

You further add that the Board has selected a supernumerary district attorney to serve as the interim executive director. This person will handle the day-to-day operations of the Bar and other duties as requested by the Board or its Executive Council. The actions of the interim executive director will be subject to the approval of the Board and the Executive Council. The interim executive director will not exercise regulatory policy changes because those must be adopted by the Board or approved by the Alabama Supreme Court. The interim executive director will not be a voting member of any policy making body at the Bar.

Concerns have been raised as to whether the proposed contract violates Alabama's prohibition against an individual holding two offices of profit simultaneously. This prohibition is codified in two provisions of Alabama law.

The Alabama Constitution provides as follows:

No person holding an office of profit under the United States, except postmasters, whose annual salaries do not exceed two hundred dollars, shall, during his continuance in such office, hold any office of profit under this state; nor, unless otherwise provided in this Constitution, shall any person hold two offices of profit at one and the same time under this state, except justices of the peace, constables, notaries public, and commissioner of deeds.

ALA. CONST, art. XVII, § 280 (emphasis added).

Similarly, the Code of Alabama states the following:

No person holding an office of profit under the United States shall, during his continuance in such office, hold any office of profit under this state, nor shall any person hold two offices of profit at one and the same time under this state, except constables, notaries public and commissioners of deeds.

ALA. CODE § 36-2-l(b) (2013) (emphasis added).

These provisions prohibit an individual from holding two offices of profit simultaneously. It is a well settled principle of law that should an individual enter a second office of profit, the first office is vacated by operation of law. Smith v. State, 276 Ala. 378, 379, 162 So.2d 473, 474 (1964). Declining compensation for one or both offices does not cure the legal infirmity. Opinions to Honorable Fred Rayfield, Chairman, Stewartville Water Authority, dated Aug. 3, 2004, A.G. No. 2004-193; Honorable William D. Latham, Attorney, Town of Jemison, dated Jan. 19, 2000, A.G. No. 2000-064.

The answer to your inquiry hinges on whether the positions of supernumerary district attorney and interim executive director of the Bar are offices of profit. This Office has recently explained that in order to be considered an office of profit, the position must (1) be elected or appointed, (2) receive a fixed compensation, and (3) exercise a part of the sovereign power of the state. Opinion to Honorable Tim Little, Revenue Commissioner, dated Nov. 19, 2020. Further, "an office of profit is one that 'derives its authority directly from the state by legislative enactment; its duties and powers are prescribed by law; and its holder is vested with a portion of the powers of government, whether it be legislative, judicial or executive'" Opinion to Honorable Rich Hobson, Administrative Director of Courts, dated Dec. 2, 2013 (quoting, Opinion of the Clerk No. 27, 386 So.2d 210, 211 (Ala. 1999).

With respect to supernumerary district attorneys, this Office has concluded on numerous occasions that a supernumerary district attorney holds an office of profit. Opinions to Honorable Chris McCool, District Attorney, dated Oct. 5, 2018, A.G. No. 2019-002; Honorable Douglas Albert Valeska, District Attorney, dated June 29, 2995, A.G. No. 2005-151; Honorable John David Whetstone, District Attorney, dated Apr. 4, 2001, A.G. No. 2001-145; Honorable Joseph M. Carlton, Executive Director, Office of Prosecution Services, dated Apr. 29, 1982, A.G. No. 82-00309. Based on these prior opinions, this Office opines that the candidate for interim executive director holds an office of profit, that of supernumerary district attorney.

As to the second position, this Office has not heretofore opined on whether the executive director of the Alabama State Bar, interim or otherwise, is an office of profit. Based on the description of the position contained in your request, however, it is the opinion of this Office that said position is not an office of profit.

First, the interim executive director will be neither elected nor appointed pursuant to state law. Rather, the Bar will hire the individual through contract. See, Johnson v. Bd. of Control of the Employees' Ret. Sys. of Alabama, 740 So.2d 999, 1008 (Ala. 1999) (quoting, Harrington v. State ex rel. Van Hayes, 76 So. 422, 424 (Ala. 1917) ("A public employment may be created by law, or by contract; but a public office can never be created by contract.")).

Second, the compensation for services will not be set by statute. Instead, the Bar will negotiate the provisions of the contract, including the compensation for the services to be provided. See, Opinion to William J. Murray, Mayor Town of Ashville, dated June 11, 1979, A.G. No. 79-00221 (Deputy Coroner holds office of profit where he exercises sovereign power of the state and "compensation ... is set by statute.").

Finally, and perhaps most importantly, the interim executive director will not wield the sovereign power of the state. The interim executive director will only handle the day-to-day operations of the Bar. All regulatory and disciplinary issues within the jurisdiction of the Bar are determined by the Board. The interim executive director will have no vote in the policy making functions of the Bar. Accordingly, the interim executive director of the Bar is not an office of profit. See, opinion to Honorable Larry D. Dixon, State Representative, dated July 22, 1981, A.G. No. 81-00464 (state legislator my serve as Executive Secretary of the State Board of Medical Examiners because executive secretary exercises no part of the sovereign power of the state and is therefore not an office of profit).

CONCLUSION

The position of the Interim Executive Director of the Alabama State Bar is not an office of profit under section 280 of the Alabama Constitution or Section 36-2-1 of the Code of Alabama.

Because the answer to your first question is in the negative, your second question is moot.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact me.

Sincerely,

STEVE MARSHALL, Attorney General.

BEN MARK BAXLEY Chief, Opinions Division.