October 2, 1998 The Honorable Thomas J. Cook State Election Commissioner 32 Loockerman Street, M101 Dover, Delaware 19904 Re: Candidacy of Douglas Salter Dear Commissioner Cook: You have asked "whether there would be any violation of federal, state or constitutional law if an active state trooper campaigned for or was elected to the office of State Representative in the State of Delaware."(1) Your request has been prompted by the candidacy of Douglas Salter, an active state trooper, who is a candidate for State Representative in the 17th Representative District. The inquiry actually raises two questions. The first, whether Mr. Salter may campaign for the office of State Representative, can be easily answered. The second question, whether, if elected, he can serve as both a State Representative and as a state trooper, is more complex. As to the first issue, assuming Mr. Salter is engaging in campaign activities in conformity with any relevant State Police regulations, and assuming he is not in violation of any federal law, he is guaranteed by the Law Enforcement Officers Bill of Rights "the same rights to engage in political activity as are afforded any other person." 11 Del. C. § 9200. This broad grant of authority clearly, includes the right to campaign for elective office. The more significant issue is whether, if elected, Mr. Salter, a sergeant in the Delaware State Police, would violate the prohibition against holding dual office contained in Art. II § 14 of the Delaware Constitution(2) by serving both as a State Representative and as a state trooper. Stated differently, the question to be resolved is not whether Mr. Salter may run for State Representative but whether his election to, and assumption of, the office of State Representative would result in his resignation from the State Police by operation of law. See Opinion of the Justices, Del. Supr., 245 A.2d 172, 174 (1968). In the Opinion of the Justices, in answer to questions propounded by the Governor, the Supreme Court held that proposed legislation that would have prohibited a person from receiving a salary as a "mere employee" of the State while also serving as a Senator or Representative was unconstitutional as exceeding the prohibition contained in Art. II § 14 Del. Const. Id. at 174. In reaching its conclusion, the Court recognized that not every state employee is the holder of a state "office" so as to preclude the employee from serving as a Senator or Representative as well. Id. In determining what is a state "office" and therefore who is a "public officer," the Supreme Court has identified certain criteria which must be weighed against the facts of the particular case. Specifically, the Court has stated that:
[n]o single definition will despositively identify who is a "public officer," as that term is used in several separate sections of the Delaware Constitution. In determining who is a public officer, this Court has identified four non-exclusive criteria which are most frequently indicative of a public office: (1) the exercise of some portion of the State's sovereign power, (2) tenure in office, (3) fees and emoluments, and (4) oaths of office. (Footnote omitted) (Emphasis added).
Opinion of the Justices, Del. Supr., 672 A.2d 4, 7 (1995); See also Raduszewski v. Superior Court, Del. Supr., 232 A2d. 95 (1967); and State ex rel. Biggs v. Corely, Del. Supr., 172 A. 415 (1934). In Raduszewski v. Superior Court, Del. Supr., 232 A.2d 95 (1967), the Court when determining whether an employee of the Motor Vehicle Department could be charged with certain common law offenses which, at that time, only applied to persons holding public office, decided that a motor vehicle inspector was a public employee not a public officer. The Court cited two earlier cases Green v. Glen, Del. Super., 4 A.2d 366 (1939) and Martin v. Trivitts, Del. Super., 103 A.2d 779 (1954) in which the Court found that because the duties of the Secretary of the Department of Elections were not defined by statute but could be changed at will by the Department, the Secretary was, by necessity, not a public officer but instead was a public employee. The Court in Trivitts held:
A position, the duties of which are undefined by law and which can be changed at the will of the superior, is not a public office but a mere public employment. In order to constitute a public office, and the incumbent a public officer, it is necessary that the powers and duties of the position be conferred and defined by law. (Citations omitted).
Id. at 780. When applying this body of law to the instant case, we look to the statute creating the Delaware State Police. Although the powers and duties of the State Police generally are set out in 11 Del. C. § 8302, 11 Del. C. § 8301 provides that "[t]he Department may classify such state police according to such rank as the Department determines, and according to the duties assigned to them from time to time by the Department." (Emphasis added). Thus, like the Secretary of the Department of Elections, Sergeant Salter has such duties as are assigned to him by the Department of Public Safety. According to his job description, Sergeant Salter is charged with making recommendations to improve and create policies and programs, but may not implement such polices and programs. He reports to the Planning Director, who reports to the Superintendent. Although Sergeant Salter, took an oath, as do all Delaware law enforcement officers, he has no fixed term or tenure in office, and his duties are undefined by law and can be changed at will by the Department. We conclude that Mr. Salter, if elected and sworn in as a State Representative will not be deemed to have forfeited his employment with the State Police, since we find that his position with the State Police constitutes "mere employment" not "office holding." We believe that this conclusion is consistent with prior courts interpretations and opinions of this office dealing with matters related to the election process in Delaware. As has been consistently held:
The right of a person to be a candidate for a public office is a fundamental one that should be restricted only by clear constitutional or statutory language. "[A]ny question or doubts of eligibility of a candidate should be resolved in favor of the candidate." (Citations omitted). (Emphasis added).
Democratic Party of the State of Delaware v. Department of Elections for New Castle County, et al., Del. Super., C.A. No. 94C-08-227, 1994 WL 555405, Ridgely, P.J. (Sept. 6, 1994) at 6, aff'd. Del. Supr., 650 A.2d 1305 (1994) (Table); Att'y Gen. Op. 98-IB06; Att'y Gen. Op. 94-I024. Of course, our conclusion is based on the law as it presently exists. We offer no opinion on the broader issue of whether it is good public policy to permit state police officers or other state employees also to serve as elected officials. That general policy matter lies within the province of the General Assembly and can be addressed by it through amendment to Art. II § 14 of the Delaware Constitution should it deem such an amendment to be in the public's interest. Finally, despite some published misstatements to the contrary, you are aware that opinions of the Attorney General are advisory and not legally binding on those to whom they are given. Council 81, AFSCME v. State, Department of Finance, Del. Ch., 288 A.2d 453 (1972). Therefore, as we have previously advised, we believe the only way to resolve this matter definitively is for one of the parties in interest to place the issue before a court of competent jurisdiction. If you have any further questions, please feel free to contact us. Very truly yours, Malcolm S. Cobin Assistant State Solicitor Approved: __________________________ Michael J. Rich State Solicitor MSC:ce Xc: William G. Burke, Sr., Director Department of Elections for New Castle County
1. Although we are aware that other uniformed officers may have
campaigned for or been elected to office, we find no record of
this office having previously opined on this issue.
2. Section 14 provides in part:
"No Senator or Representative shall, during the time for which he
shall have been elected, be appointed to any civil office under
this State which shall have been created, or the emoluments of
which shall have been increased during such time. No. . .person
holding any office under this State...shall during his
continuance. . .in office be a Senator or Representative . . ."
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