HARRY HUGHES, Governor

3501

General Assembly to these positions. As a person holding an
office of trust cannot serve as a legislator, as legislators
are barred from serving in offices created during their term
and as the separation of powers clause of the Constitution
forbids persons to exercise the functions of more than one
branch of government, we do not approve the bill.

The question of providing for the appointment of
legislators to commissions in the Executive Branch was
thoroughly considered in an Opinion issued in 1976 to
Delegate Robertson concerning the appointment of legislators
to the Washington Suburban Transit Commission. 61 Opinions
of the Attorney General 152 (1976). In that Opinion, it was
pointed out that Article 35 of the Declaration of Rights
forbids a person to hold at the same time more than one
office of profit created by the Constitution or laws of the
state. In determining whether a position is an office, the
courts have generally applied a five part test involving
consideration of whether the position (1) is created by law
and involves continuing and not occasional duties; (2)
involves the performance of an important public duty; (3)
involves an exercise of a portion of the state's
sovereignty; (4) has a definite term for which a commission
is issued, an oath is required and a bond is given; and (5)
is one of dignity and importance. It has been recognized
that the most important of these factors is whether the
position involves an exercise of the state's sovereignty.
For an office to be one of profit, the holder must be
entitled to receive a fee, salary or other compensation.

In our 1976 Opinion, we noted that members of the
General Assembly clearly hold offices of profit, and
concluded that members of the Washington Suburban Transit
Commission hold offices of profit. Accordingly, we
determined that the appointment of legislators to that
Commission would violate the ban in Article 35 of the
Declaration of Rights on holding more than one office of
profit. Moreover, as new positions were being created by
the General Assembly for its members, no Senator or Delegate
could, under Article III, Section 17, be appointed to those
new positions on the Commission during the term in which
they were created. Additionally, as Article III, Section 11
bars a person who holds an office of profit or trust from
being a Senator or Delegate, we concluded that service on
the Commission, being an office of trust, would bar service
in the Legislature. Finally, we found that, as the
Commission was an Executive agency, members of the
Legislative Branch were precluded from serving as
commissioners under the separation of powers clause of
Article 8 of the Declaration of Rights which forbids persons
exercising the functions of one Branch to exercise the
functions of any other.

As established by Section 70C of Article 41, the
Commission on Correctional Standards is an agency of the