How could Killian fill two new alderman seats after changing from a village to a town?

Plain-English summary

Killian's reclassification from village to town increased its required alderman seats from three to five. The town asked how to fill the two new seats. In the official opinion, the AG said the governing authority's general municipal powers allowed it to fill the seats, using the Election Code's vacancy procedures as the closest available model.

The AG acknowledged that a newly created office did not fit the Code's definition of “vacancy” and that no law specifically prescribed this situation. It advised appointment of qualified people within ten days of the opinion and a proclamation for a special election under R.S. 18:602. The opinion called for legislative attention to the statutory gap.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why did Killian gain two alderman seats?
The opinion said a town had five aldermen, compared with three for a village, and Killian had been reclassified as a town.

Were the new seats technically “vacancies” under the Election Code?
The AG said newly created offices did not fit the Code's vacancy definition, but it used the Code's procedures under the municipality's general powers.

What procedure did the AG propose for filling the seats?
It proposed appointing qualified people, ordering a special election, publishing the proclamation, and following R.S. 18:602.

Background and statutory framework

The opinion read the alderman membership requirement in R.S. 33:382 alongside the reclassification provision in R.S. 33:342. Because R.S. 18:581 did not define the new seats as vacancies, the AG used the municipality's general powers in R.S. 33:361 to apply the procedure in R.S. 18:602 and the election dates in R.S. 18:402.

Citations and references

• R.S. 33:382 and R.S. 33:342 (municipal classification and aldermen)
• R.S. 33:361 (general municipal powers)
• R.S. 18:581, R.S. 18:602, and R.S. 18:402 (vacancies and elections)

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/02-0029

Original opinion text

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One Amencar~ Place
30~ Mare Street, Suite %00
DEPARTMENT OF JUSTICE
P,O Box c;4005
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TEL ¯ (225) 342-7013
BATON ROUGE
FAX’ (225) 342-2090

70804-9O05

FEB 08
OPINION NUMBER 02-0029

71- MUNICIPALITIES
71 - 1 - B MUNICIPALITIES - Home Rule Charter
James A. Wood
Newly created offices in a mumc~pality due to a status change may
be filled in accordance with the Elect~on Code’s prows~ons on filling
Attorney, Town of Killian
vacancies under the general mumctpal powers provided in R.S
2352 Eastgate Drive, Suite A 33.361.

Baton Rouge, LA 70816

Dear Mr. Wood:

We are in receipt of your request for an Attorney General’s opinion on behalf of the Town of Killian. Specifically, you seek our opinion as to the filling of the two newly created aldermen positions since the increasing in the number of aldermen from three to five in the Town of Killian due to the reclassification on November 16, 2001.

In Attorney General Opinion No. 81-1037 we found that since the legislature used the mandatory word "shall" in R.S. 33:381 [now R.S. 33:382], which provides in part, "The number of aldermen in a city shall be not less than five and not more than nine; in a town, five; and in a village, three...", it would appear to be a requirement that the membership of the board of aldermen be increased, or decreased as the case may be, where a municipality changes in population and thus changes its status. We further opined that "such change by operation of law immediately creates vacancies in the newly created offices" and should be filled in accordance with the Election Code, R.S. 18:602.

Although we recognize that a newly created office in a reclassification of a municipality does not fall within the definition of a "vacancy" in R.S. 18:581, we are of the opinion that the general municipal powers of R.S. 33:361 authorize the governing authority to fill the newly created seats. R.S. 33:361, provides in part:

Except as otherwise provided in this Part, a municipality shall be vested with all powers, rights, privileges, immunities, authorities, and duties heretofore possessed in accordance with all constitutional and statutory provisions with respect thereto. A municipality is further authorized to exercise any power and perform any function necessary, requisite, or proper for the management of its affairs not denied by law.

Certainly the increase, or decrease as the case may be, in the membership of the board of aldermen of a municipality whose status changes due to a change in

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population qualifies as a necessary, requisite and/or proper function for the management of the municipality. While there is no law specifically addressing how to fill these newly created offices, we point out that there is no law which denies the filling of these newly created offices as suggested by our office in our earlier opinion. Thus, the provisions of R.S. 18:602 are the only reasonable provisions of law on point in which to fill these newly created offices and it is our opinion that the governing authority should proceed to appoint, with ten (10) days of this opinion, a qualified person to fill the newly created offices. Additionally, the governing authority should issue a proclamation ordering a special election to fill these newly created offices on an election date provided in R.S. 18:402, publish the proclamation in the official journal of the parish, and further comply with all relevant provisions of R.S. 18:602.

In conclusion, while R.S. 33:342 authorizes a change in classification of a municipality upon a change in population, the statue simply is silent on the issue herein, filling the newly created offices, and therefore, should be brought to the attention of the Louisiana legislature for proper resolution. Trusting that this opinion satisfactorily answers your question, we remain

Yours very truly,

RICHARD P. IEYOUB
ATTORNEY GENERAL

ANGLE ROGERS LAPLACE

RPI/ARL;mjb

Hon. W. Fox McKeithen
Hon. Mike Foster
House & Governmental Affairs Comm.
Senate & Governmental Affairs Comm.