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?ags Opinion NO. 56-85
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REQUESTED Honorable Laura McRae, State Legislator

OPINION BY: Mo i so The Attorney General
Gordon Aldrich, FirSt Assistant Attorney General

QUESTION: May a legislator hold an office or be employed by
a municipality as a member of the City Planning
and Zoning Commission when such office is
served without pay?

CONCLUSION: N0.

Article 4, Part 2, Section 4, of the Arizona Constitution, provides
that no person holding any public office of profit or trust under the authority
of the United States, or of this State, shall be a member of the Legislature.
Those holding appointment in the state militia and as notaries public, justices
of the peace, United States CommiSsioners and postmasters of the fourth
class are specifically excluded from therprohibition of this Act.

Article 4, Part 2, Section 5, of the Arizona Constitution, provides
that no member of the Legislature, during the term for which he shall have
been elected or appointed, shall be eligible to hold any other office or be
otherwise employed by the State of Arizona, or any county or incorporated
city or town thereof. There is excepted from this latter prohibition the
office of school trustee and the employment as teacher in the public school
system.

It was formerly held in Winsor vs. Hunt, 29 Ariz. 504, a case de-
cided in 1926, that the President of the Senate could be employed as a 
clerical assistant to the Code Commissioner because such employment was
net "a civil office of profit or trust. However, the pertinent section of the
Constitution has been changed to include the word "employed. Thus, a
legislator is not eligible to employment by the State or any incorporated
city or town or of any county thereof. In McCluskey vs. Hunter, 33 Ariz.
513, where the Supreme Court was callecT upon to interpret a statute
patterned after Article 4, Part 2, Section 5, the Supreme Court held that
the acceptance of the later office, even though without remuneration, operate:
as a vacation of the former office. The Court in the McCluskey case cited
with approval Campbell vs. Hunt, 18 Ariz. 442, where the holding was that
the occupant of an office who accepts a second office when prohibited by law
from doing so ipso facto vacates the first one.

 

 

 

 

 

 

- Honorable Laura McRae__ f' - April  ,12 i956 
State Legislator Page Two

It is the Opinion of the Department of Law, therefore, that a State 
legislatOr is not eligible to hold either office or employment in the State of
Arizona or any county or any incorporated city or toWn of AriZona with the

exceptions noted above for school teachers and school trustees This con- 

7 clusion is supported by a previous opinion of the Attorney GeneralROBERT MORRISON
7 The Attorney General 


GonooH CL I

Firsr Assistant-
Attorney General

   

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56?85