THE ATTORNEY GENERAL HAS RECEIVED YOUR LETTER ASKING FOR AN OPINION ADDRESSING IN EFFECT, THE FOLLOWING QUESTION:
MAY A SECRETARY/BAILIFF SIMULTANEOUSLY HOLD THE POSITION OF COUNTY JUVENILE OFFICER WITHOUT VIOLATING THE DUAL OFFICE HOLDING PROHIBITIONS OF 51 O.S. 6 (1990)?
THE ATTORNEY GENERAL HAS ASKED THAT I RESPOND TO YOUR REQUEST INFORMALLY, INASMUCH AS THE QUESTION CAN BE ANSWERED BY REFERENCE TO CLEARLY CONTROLLING STATUTES, CASE LAW AND OPINIONS, MAKING A FORMAL OPINION NEITHER DESIRABLE OR NECESSARY. THE DISCUSSION THAT FOLLOWS IS THEREFORE THE ANALYSIS AND CONCLUSIONS OF THE UNDERSIGNED ASSISTANT ATTORNEY GENERAL.
YOUR QUESTION AS SET FORTH RAISES THE THRESHOLD QUESTION OF WHETHER THE POSITIONS OF SECRETARY/BAILIFF AND JUVENILE OFFICER ARE OFFICES WITHIN THE MEANING OF "OFFICE" IN 51 O.S. 6, WHICH PROVIDES:
"A. EXCEPT AS MAY BE OTHERWISE PROVIDED, NO PERSON HOLDING AN OFFICE UNDER THE LAWS OF THE STATE AND NO DEPUTY OF ANY OFFICER SO HOLDING ANY OFFICE, SHALL, DURING HIS TERM OF OFFICE, HOLD ANY OTHER OFFICE OR BE THE DEPUTY OF ANY OFFICER HOLDING ANY OFFICE, UNDER THE LAWS OF THE STATE.
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THE PROHIBITIONS OF 6 APPLY ONLY WHERE BOTH POSITIONS ARE "PUBLIC OFFICES," OR OFFICES "UNDER THE LAWS OF THE STATE." A.G. OPIN. 75-196. IF EVALUATION OF THE POSITIONS OF SECRETARY/BAILIFF AND COUNTY JUVENILE OFFICER SHOWS EITHER IS NOT AN "OFFICE, THEN 51 O.S. 6 WILL NOT PROHIBIT ONE PERSON HOLDING BOTH POSITIONS OF EMPLOYMENT.
THE SEMINAL CASE IN OKLAHOMA FOR THE DEFINITION OF A "PUBLIC OFFICE" IS GUTHRIE DAILY LEADER V. CAMERON,41 P. 635 (OKLA.1895). THE COURT QUOTED WITH APPROVAL:
"A PUBLIC OFFICE IS THE RIGHT, AUTHORITY, AND DUTY, CREATED AND CONFERRED BY LAW, BY WHICH, FOR A GIVEN PERIOD, EITHER FIXED BY LAW OR ENDURING AT THE PLEASURE OF THE CREATING POWER, AN INDIVIDUAL IS INVESTED WITH SOME PORTION OF THE SOVEREIGN FUNCTIONS OF THE GOVERNMENT, TO BE EXERCISED FOR THE BENEFIT OF THE PUBLIC. THE PERSON WHO INVESTED IS A PUBLIC OFFICER.
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THE MOST IMPORTANT CHARACTERISTIC WHICH DISTINGUISHES AN OFFICE FROM AN EMPLOYMENT OR CONTRACT IS THAT THE CREATION AND CONFERRING OF AN OFFICE INVOLVES A DELEGATION TO THE INDIVIDUAL OF SOME OF THE SOVEREIGN FUNCTIONS OF GOVERNMENT, TO BE EXERCISED BY HIM FOR THE BENEFIT OF THE PUBLIC; THAT SOME PORTION OF THE SOVEREIGNTY OF THE COUNTRY, EITHER LEGISLATIVE, EXECUTIVE, OR JUDICIAL, ATTACHES FOR THE TIME BEING, TO BE EXERCISED FOR THE PUBLIC BENEFIT. UNLESS THE POWERS CONFERRED ARE OF THIS NATURE, THE INDIVIDUAL IS NOT A PUBLIC OFFICER."
IN OKLAHOMA CITY V. CENTURY INDEMNITY CO., 62 P.2D 94, (OKLA.1936), THE SUPREME COURT FURTHER DISCUSSED THE DEFINITION OF "PUBLIC OFFICE":
MANY AUTHORITIES HOLD THAT THE CHIEF ELEMENTS OF A PUBLIC OFFICE ARE: (A) THE SPECIFIC POSITION MUST BE CREATED OR AUTHORIZED BY LAW; (B) THERE MUST BE CERTAIN DUTIES IMPOSED BY LAW ON THE INCUMBENT; AND (C) THEY MUST INVOLVE THE EXERCISE OF SOME PORTION OF THE SOVEREIGN POWER, "A POSITION WHICH HAS THESE THREE ELEMENTS IS PRESUMABLY AN 'OFFICE,' WHILE ONE WHICH