Election Year Precautions – Part 1

by Bob Lackner

2022 is an election year, which means that most of the members of the General Assembly will be running for reelection (or sometimes another office). Running for office can become an all-consuming endeavor, which can cause legislators who are also candidates to forget or lose sight of some of the legal restrictions on legislators who may also be candidates. This article, the first in a two-part series, discusses whether legislators may hold another public office. The second part of this series will cover the use of state resources.

Holding dual offices

One issue members may confront during their tenure in the General Assembly is the ability to hold another public office at the same time they are serving in the General Assembly. Perhaps they were serving in another office when elected to the General Assembly and would like to continue in that role. Or, maybe an opportunity arises for a sitting member of the General Assembly to seek another state or local office.

The Colorado Constitution provides that “[n]o senator or representative shall, while serving as such, be appointed to any civil office under this state; and no member of congress, or other person holding any office (except of attorney-at law, notary public, or in the militia) under the United States or this state, shall be a member of either house during his continuance in office.”[1] Colorado court decisions suggest the use of the following general guidelines in applying this constitutional section[2]:

  • During their term of office, no member of the General Assembly can be appointed to a civil office in state government.
  • Because the Colorado courts have not had occasion to specifically address the prohibition against holding other state elective office and because of separation of powers concerns and possible conflicts of interest, perceived or real, it is less clear whether a member of the General Assembly could simultaneously hold another elected office in state government.
  • It is clear that a member of the General Assembly may hold an elected or appointed office in a local government.
  • Legislators may also be employed by the state or a local government. An “appointment,” as contrasted with an “appointment to a civil office,” exists as long as the person is not required to exercise independent decision-making authority and is not entrusted with the sovereign power of the state.

Although these guidelines indicate that a legislator may serve in certain other civil offices, most electors decide not to serve in other public offices during their tenure in the General Assembly because of the time demands of being a legislator, concerns about the possible appearance of a conflict of interest, and the need to abstain from voting when a conflict exists.[3] The potential exists for many potential conflicts of interest between votes and positions taken as a member of the General Assembly while simultaneously holding another public office. In evaluating whether to hold another public office while serving as a member of the General Assembly, it may be of benefit to consider the degree to which the state affects the other government’s activities and the potential for conflicts between the members’ roles. For example, there may be a higher likelihood of conflict between large cities and counties than for other types of governmental entities such as small (statutory) towns or special districts.

On a related note, section 1-4-501 (2), C.R.S., prohibits any person from being an eligible candidate for more than one office at one time.[4] Therefore, assuming a member of the General Assembly is also permitted to hold an elected office in a local government, the legislator cannot run for a legislative seat and that other office in the same election.[5]

 

 

[1] Colo. Const. Art. V,  § 8.

[2]Carpenter v. People ex. El. Tilford, 8 Colo. 116, 5 P. 828 (1884) and Hudson v. Annear, 101 Colo. 551, 75 P. 2d 587 (1938). A civil office is an office in which its holder is required to take an official oath or to give bond. Hudson, 101 Colo. at 555-556, 75 P.2d at 588-589.

[3] See Colo. Const. Art. V § 43 and § 24-18-107, C.R.S., and House Rule No. 21 (c) and Senate Rule No. 17 (c).

[4] § 1-4-501 (2), C.R.S.

[5] The material in this section of the article is taken from a memorandum from the Office of Legislative Legal Services to Interested Persons dated November 29, 2021, entitled “Legislators Holding Other Offices”.