Kansas Attorney General Opinion 1992-085

ROBERT T. STEPHAN
ATTORNEY GENERAL
June 30, 1992
ATTORNEY GENERAL OPINION NO. 92- 85
The Honorable Robert H. Miller
State Representative, Eightieth District
Route 1
Wellington, Kansas 67152
Re: Elections--Election Campaign Finance;
General--Membership on Kansas Commission on
Governmental Standards and Conduct; District Court
Judge
Constitution of the State of Kansas--Judicial--
Compensation of Justices and Judges; Certain
Limitation; Prohibition on Holding Other Offices
Synopsis: Article 3, section 13 of the Kansas constitution
precludes a sitting district court judge from being
a member of the Kansas commission on governmental
standards and conduct in the absence of any
provision of law specifically authorizing such
membership. Cited herein: K.S.A. 20-2201;
20-2301; 25-113; K.S.A. 1991 Supp. 25-4119a;
25-4119d; K.S.A. 46-215; 75-3223; Kan. Const.,
art. 3, S 13.
*
Dear Representative Miller:
You request our opinion regarding whether a Kansas district
court judge may legally serve as a member of the Kansas
commission on governmental standards and conduct. You state
that the judge you are considering for appointment meets the
qualifications set forth at K.S.A. 1991 Supp 25-4119d and that

a request has been submitted to the judicial ethics committee
for a determination of whether this dual office holding is
violative of judicial canons. Your question to us is whether
there are other legal impediments to a sitting district court
judge serving on the commission.
Article 3, section 13 of the Kansas constitution provides as
follows:
"The justices of the supreme court and
judges of the district courts shall
receive for their services such
compensation as may be provided by law,
which shall not be diminished during their
terms of office, unless by general law
applicable to all salaried officers of the
state. Such justices or judges shall
receive no fees or perquisites nor hold
any other office of profit or trust under
the authority of the state, or the United
States except as may be provided by law,
or practice law during their continuance
in office." (Emphasis added).
Thus, the constitution creates an incompatibility between
sitting as a district court judge and holding any other
"office of profit or trust" except as may be authorized by
law.
"The object sought to be accomplished by
this provision, is that our high judical
[sic] officers may be removed as far as
possible from the temptation to use the
power and influence of their positions and
authority for their own advancement. To
prevent their minds from being distracted
from their legitimate duties by ambitions
hopes and struggles for preferment, to
raise them above those political and
partisan contests so unbecoming the
desired purity, impartiality and calmness
of the judicial character. Its effect is
to prevent the acceptance of any other
office by a judge or justice, the term of
whose judicial office has not expired, and
to render such acceptance void." State ,
ex rel., v. Cobb, 2 Kan. 32, 52
(1863). (Emphasis added).

According to this court, district court judges are precluded
from holding any other office while still sitting on the
court. We believe, however, that the phrases "office of
profit or trust" and "except as may be provided by law" must
be given due consideration.
Other jurisdictions have held that an "office of profit" is an
office to which fees, salary or other compensation is
attached. Moser v. Board of County Commissioners of Howard
County, 201 A.2d 365, 367 (Md. 1964); Baker v. Board of
Crook County Commissioners, 59 P. 797 (Wyo. 1900); Opinion
of the Clerk, 386 So.2d 210, 212 (Ala. 1980). In State v.
Monahan, 79 Kan. 492, 501 (1905) the Kansas Supreme Court
stated that "[t]he words 'office of public trust' are
equivalent to 'public office'." An office of trust or profit
is one created by law and in which the occupant performs
duties pursuant to statute. Holmes v. Osborn, 115 P.2d
775, 786 (Az. 1941).
The office of member of the Kansas commission on governmental
standards and conduct is a public office created by statute.
K.S.A. 1991 Supp. 25-4119a. Commission members receive
compensation, subsistence allowances, mileage and other
expenses as provided in K.S.A. 75-3223(a)-(d). K.S.A. 1991
Supp. 25-4119a. Commission members perform the statutory
duties of administering and enforcing the campaign finance
act, K.S.A. 1991 Supp. 25-4119a et seq., and the state
governmental ethics laws, K.S.A. 46-215 et seq. We know
of no provision specifically authorizing district court judges
to serve on the commission. Compare K.S.A. 20-2201;
20-2301; 25-113. In our opinion, based on the case
authorities cited above, membership on the Kansas commission
on governmental standards and conduct is an office of profit
or trust which a sitting district court judge is precluded
from holding.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Julene L. Miller
Deputy Attorney General
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