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Friday, June 05, 2009

Ind. Law - AG finds that a Port Authority seat is a "lucrative office" per the Constitution

Jeff Burton reports today in the NWI Times:

HAMMOND | Bob Markovich should not hold seats on the Hammond City Council and the Hammond Port Authority, according to an opinion by Indiana Attorney General Greg Zoeller made public earlier this week.

He cited a constitutional provision prohibiting officials from holding dual lucrative offices.

Explaining his opinion using previous case law, Zoeller said an office is deemed "lucrative" in the eyes of the state when "there is attached a compensation for services rendered," and that "lucrativeness does not depend on the amount of compensation affixed to the office." He said a position would not be considered lucrative if the office holder was reimbursed for expenses incurred in connection with his or her duties.

Hammond Mayor Tom McDermott Jr. raised the issue of holding both offices shortly after City Council members chose Markovich, an at-large member of the council, to sit on the port authority board in January. McDermott vetoed the appointment and asked Zoeller for an opinion.

Markovich, a 22-year council member, said until this year when he was appointed, a City Council member always has sat on the port authority board. 1st District Councilman Mark Kalwinski previously held the post.

"It was OK for Mark Kalwinski to be on there," Markovich said. "Now that I'm the appointment, no other council member can be on there? I have the research from the City Council attorney that it's not lucrative. I have a Supreme Court ruling."

Markovich, who lives in the Robertsdale area, said the port authority needs a watchdog to monitor how a $31 million award from the Regional Development Authority is spent and that the Attorney General's nonbinding opinion shouldn't be considered the word of law.

"The Attorney General is just another lawyer who has an opinion," he said.

Here is the June 1, 2009 AG advisory opinion.

The AG's office under General Carter prepared a 20-page "Dual Office Holding Guide." Access it here.

[More] The Times today also has an editorial, suggesting that Zoeller expand the ruling in some areas, rather than issuing lucrative office opinions on a case-by-case basis:

The Hammond City Council appointed one of its own, Bob Markovich, to serve on the city's Port Authority board. But now Indiana Attorney General Greg Zoeller says Markovich is not entitled to serve there.

Zoeller's ruling this week is strictly advisory, but it's reason enough for the City Council to appoint a citizen, not a councilman, to the board.

Markovich, D-at-large, was appointed by his peers in January, but Mayor Thomas McDermott Jr. vetoed his appointment within days, citing a state law banning public officials from holding dual lucrative positions.

State Sen. Frank Mrvan, D-Hammond, asked for the attorney general's opinion. Here's the short answer: "A member of a city council and a member of a board of directors of a local government port authority are both lucrative officeholders for purposes of Article 2, Section 9 of the Indiana Constitution. Simultaneously holding both offices would violate the constitutional prohibition against dual office holding."

McDermott was asked last week about the request for an official advisory opinion. "I'd be shocked if (Zoeller) came back and said (Markovich) could serve on it," McDermott said. How prophetic.

The mayor noted the precedent of City Clerk Bob Golec, whose appointment to the Little Calumet River Basin Development Commission was rejected by the state in 2005 because it would be considered holding two lucrative positions.

Hammond Port Authority board members receive about $6,000 a year and have the option of receiving health insurance.

Councilman Mark Kalwinski, who held the seat before Markovich was appointed, has said he wants someone from the First District appointed, because the Port Authority business affects his constituents in the Robertsdale area and because of the casino revenue generated in his district.

Zoeller's opinion answers Mrvan's direct question about whether a council may also serve on a port authority board. It was about a specific situation.

Mrvan or one of his fellow lawmakers should now ask Zoeller to rule on the broader questions this ruling raises.

Zoeller should be asked to take a look at other instances of public officials holding more than one lucrative office -- including the many mayors who get paid extra for serving on sanitary district boards. Is that unconstitutional? From the attorney general's Dual Office Holding Guide, it would seem so.

Of course, public officials don't have to wait for Zoeller to rule on a potential question about this practice. They can -- and should -- follow this simple principle: Let officeholders do what they were elected to do and give citizens a chance to serve in other capacities.

Posted by Marcia Oddi on June 5, 2009 09:08 AM
Posted to Indiana Government | Indiana Law