Ethics: Dual Office-Holding: Restrictions on State Legislators Concurrently Holding A Second Elected Office
Table of States and Territories
Updated as of January 2012
Can a state legislator adequately balance all interests when holding a second elected office?
This practice is usually referred to as "dual office-holding." Dual office-holding is generally defined as the practice of holding two elected offices at the same time at the state or local levels, paid or unpaid.
States generally have taken three main approaches in restricting state legislators from concurrently holding a second elective office. The first approach, taken by all territories and 47 states categorically prohibits a legislator from holding another statewide elected office. (Indiana, West Virginia and Wyoming have some limited exceptions.)
Under the second approach, 25 of those 47 states and the three territories prohibit state legislators from holding any other elected office at the county or municipal level in addition to the state level. The states taking this second approach are: Alabama, Alaska, Arizona, Arkansas, Delaware, Florida, Iowa, Kentucky, Louisiana, Maine, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Utah, Guam, Puerto Rico, and the U.S. Virgin Islands,
The third approach is followed by 18 states. In those states a legislator may not hold a second state level elected office, but allow the legislator to hold a second county or municipal office if those offices are not "incompatible." These states are California, Colorado, Connecticut, Hawaii, Idaho, Illinois, Kansas, Massachusetts, Mississippi, New Hampshire, New York, North Dakota, South Dakota, Tennessee, Texas, Vermont, Washington and Wisconsin.
Further variations are in Georgia, Indiana, Maryland, Oregon and Virginia, where a legislator is allowed to hold a second elected county or municipal office only when the second office is not considered lucrative. Generally, an office is considered lucrative when the office-holder receives compensation or remuneration beyond reimbursement for actual expenses incurred.
West Virginia adds another element by saying the second elected position cannot be lucrative or incompatible. Wyoming prohibits a state legislator from holding any other public elective office that receives any funding from the State of Wyoming.
The District of Columbia does not neatly fit into the above listed categories of restrictions on dual office holding because it is governed by a single legislature with no municipal or county governments. However, D.C. does prohibit a person from holding the office of member of the House of Delegates if he or she holds another public office that is considered to be lucrative.
In states that do not address the legitimacy of holding two elected offices at the same time by statute or constitution, the question is generally answered by the state's courts. Most state courts base their ruling on the "doctrine of incompatibility of office" where the court compares the specifics of the two particular elected offices at issue, looks at the duties of the two offices, and decides if one of the offices is subordinate to the other or if there are inconsistencies between the duties of the two offices. If so, the offices are "incompatible," and a legislator cannot hold both positions at the same time.
|