Opinion No. 92-560 (1992) ( 1992 )

THE ATTORNEY GENERAL HAS ASKED ME TO RESPOND TO YOUR REQUEST FOR AN OPINION ADDRESSING, IN EFFECT, THE FOLLOWING QUESTIONS:

1. CAN AN ELECTED COURT CLERK BE APPOINTED BY THE BOARD OF TRUSTEES OF A COUNTY LAW LIBRARY TO SERVE AS LAW LIBRARIAN OF THE COUNTY LAW LIBRARY?

2. CAN THE COURT CLERK SERVING AS LAW LIBRARIAN BE COMPENSATED FOR THE WORK AS LIBRARIAN?

BECAUSE YOUR QUESTIONS CAN BE ANSWERED BY REFERENCE TO OKLAHOMA STATUTES AND EXISTING ATTORNEY GENERAL OPINIONS, A FORMAL OPINION IS NOT NECESSARY. THEREFORE, THE DISCUSSION WHICH FOLLOWS IS NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL. THE FOLLOWING CONCLUSIONS, WHILE SOLELY MY OWN, HAVE BEEN REACHED AFTER CAREFUL RESEARCH AND ANALYSIS OF THE QUESTIONS YOU HAVE RAISED.

GENERALLY, THE FIRST PLACE ONE TURNS IN QUESTIONS ABOUT DUAL POSITIONS IS 51 Ohio St. 6 (1991) (DUAL OFFICE HOLDING), THE STATUTORY PROHIBITION AGAINST OFFICERS AND DEPUTIES HOLDING OTHER OFFICES. IN THIS CASE, THE DUAL-OFFICE-HOLDING STATUTE IS NOT IMPLICATED, BECAUSE EVEN THOUGH A COURT CLERK IS AN OFFICER, A COUNTY LAW LIBRARIAN IS NOT. SEE A. G. OPIN. NO. 70-283.

ONE MUST ALSO CONSIDER ARTICLE II, SECTION 11 OF THE OKLAHOMA CONSTITUTION, WHICH CONTAINS THE FOLLOWING:

"EVERY PERSON ELECTED OR APPOINTED TO ANY OFFICE OR EMPLOYMENT OF TRUST OR PROFIT UNDER THE LAWS OF THE STATE . . . SHALL GIVE PERSONAL ATTENTION TO THE DUTIES OF THE OFFICE TO WHICH HE IS ELECTED OR APPOINTED."

BASED ON THIS CONSTITUTIONAL PROVISION, PREVIOUS OPINIONS OF THE ATTORNEY GENERAL HAVE FOUND THE POSITIONS OF DEPUTY COURT CLERK AND DISTRICT ATTORNEY'S SECRETARY TO BE POSITIONS OF TRUST AND PROFIT; IT WAS DETERMINED THAT PERSONS IN THOSE POSITIONS MAY SERVE AS LAW LIBRARIAN AND BE PAID FOR THE SERVICE, BUT ONLY OUTSIDE THE OFFICE HOURS OF THEIR JOBS AS DEPUTY AND SECRETARY. SEE A. G. OPIN. NOS. 70-283 AND 74-130.

THE POSITION IN QUESTION HERE, COURT CLERK, DIFFERS SIGNIFICANTLY FROM THOSE DEALT WITH PREVIOUSLY BECAUSE OF 20 Ohio St. 1221 (1991), WHICH SAYS, IN PART:

"UNLESS OTHERWISE PROVIDED BY THE BOARD OF TRUSTEES, THE COURT CLERK SHALL SERVE AS CUSTODIAN OF THE COUNTY LAW LIBRARY. (EMPHASIS ADDED.)"

IN DISCUSSING THE EMPLOYMENT OF A DEPUTY COURT CLERK AS LAW LIBRARIAN, A. G. OPIN. NO. 70-283 REACHES THE QUESTION OF THE DUTIES AND COMPENSATION FOR THE COURT CLERK. THE OPINION SAYS:

"IF A DEPUTY COURT CLERK SERVED AS CUSTODIAN, OR LIBRARIAN. OF A COUNTY LAW LIBRARY, AT THE DIRECTION OF THE COURT CLERK, THE DEPUTY WOULD BE DOING ONLY WHAT THE LAW REQUIRES OF THE COURT CLERK AND WOULD NOT BE ENTITLED TO EXTRA COMPENSATION UNDER THOSE CIRCUMSTANCES."

A. G. OPIN. NO. 70-283 (EMPHASIS ADDED).

THE COURT CLERK IS CHARGED WITH THE CARE AND KEEPING OF THE LAW LIBRARY UNLESS THE BOARD OF TRUSTEES MAKES OTHER ARRANGEMENTS. THUS, THE BOARD OF TRUSTEES OF A COUNTY LAW LIBRARY CANNOT PROVIDE FOR THE COURT CLERK TO BE THE COUNTY LAW LIBRARIAN. THAT DUTY IS IMPOSED UPON THE COURT CLERK BY STATUTE.

EVEN THOUGH 70-283 ADDRESSED THE ISSUE OF PROVIDING COMPENSATION TO THE DEPUTY COURT CLERK FOR ACTING AS COUNTY LAW LIBRARIAN, IT BEGINS WITH THE UNDERSTANDING THAT SUCH COMPENSATION FOR THE COURT CLERK WOULD BE PROHIBITED. IT RECOGNIZES THAT THE COURT CLERK IS NOT ENTITLED TO EXTRA PAY FOR PERFORMING DUTIES WHICH THE LAW REQUIRES OF THAT OFFICE.

THE COURT CLERK HAS A STATUTORILY-IMPOSED OBLIGATION TO MAINTAIN THE COUNTY LAW LIBRARY UNLESS THE LIBRARY'S BOARD OF TRUSTEES PROVIDES OTHERWISE. THE BOARD OF TRUSTEES HAS THE AUTHORITY TO EMPLOY A LIBRARIAN. 20 Ohio St. 1208 (1991). THE NEED FOR A LIBRARIAN OTHER THAN THE COURT CLERK WOULD DEPEND ON THE FACTS AND CIRCUMSTANCES IN ANY GIVEN LOCALE AND COULD INCLUDE SUCH CONSIDERATIONS AS THE SIZE OF THE LIBRARY AND THE WORK LOAD OF THE COURT CLERK. THE COURT CLERK IS NOT ENTITLED TO EXTRA COMPENSATION FOR SERVING AS LAW LIBRARIAN BECAUSE THAT SERVICE IS A RESPONSIBILITY IMPOSED ON THE COURT CLERK BY STATUTE.

IT IS, THEREFORE, THE OPINION OF THE UNDERSIGNED ATTORNEY THAT:

1. AN ELECTED COURT CLERK CANNOT BE APPOINTED BY THE BOARD OF TRUSTEES OF A COUNTY LAW LIBRARY TO SERVE AS LAW LIBRARIAN OF THE COUNTY LAW LIBRARY BECAUSE THAT DUTY IS IMPOSED UPON THE COURT CLERK BY STATUTE.

2. THE COURT CLERK SERVING AS LAW LIBRARIAN CANNOT BE COMPENSATED FOR THE WORK AS LIBRARIAN BECAUSE THE CLERK CANNOT RECEIVE EXTRA PAY FOR PERFORMING DUTIES THAT ARE STATUTORILY REQUIRED.

(GAY ABSTON TUBOR)