Are an over-term funeral board member's votes valid, and does a closed-account check count as insufficient funds?

Plain-English summary

A state senator asked two unrelated questions: what happened when a Louisiana State Board of Embalmers and Funeral Directors member served beyond two consecutive four-year terms, and whether a check returned because the account was closed counted as one returned for nonsufficient funds. The Attorney General said the over-term appointment would be null and a vacancy created. It also said the officer would continue to discharge duties until a successor took office and that acts affecting the public or third parties remained valid until the officer's title was adjudged insufficient.

For the check question, the AG used a statutory definition covering instruments used to pay a debt or transfer money. It concluded that the term “nonsufficient funds” in the dishonored-check provision included a check returned “account closed,” following a Louisiana appellate decision cited in the opinion.

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

Could a funeral board member serve a third consecutive four-year term?
The AG said the appointment beyond the two-term limit would be null and void, creating a vacancy. It also cited the rule that a public officer continued duties until a successor was inducted.

Were the board's decisions invalid because an over-term member voted?
The opinion said board acts concerning the public or third-party rights were valid and effective until the member's title to office was adjudged insufficient.

Did “nonsufficient funds” include a check returned after the account was closed?
Yes. The AG said the statutory phrase included checks returned “account closed.”

Background and statutory framework

The opinion quoted La. R.S. 37:832 on board terms and La. R.S. 42:2 on an officer serving until a successor was inducted. It discussed an earlier AG opinion and a Louisiana appellate case on acts of an improperly constituted board. On checks, it compared La. R.S. 9:2782(A) with the definition in La. R.S. 9:3516 and cited a decision concerning closed accounts. The conclusions described the statutes as the AG read them in 2002.

Citations and references

• La. R.S. 37:832 (board member term limit)
• La. R.S. 42:2 (service until successor inducted)
• La. R.S. 9:2782(A) (dishonored-check question)
• La. R.S. 9:3516 (check definition quoted in the opinion)

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/02-0170

Original opinion text

One American Place
301 Mare Street, Suite 600
DEPARTMENT OF JUSTICE
P.O. Box 94005
CIVIL DIVISION
TEL.: (225) 342-7013
BATON ROUGE
FAX: (225) 342-2090

RICHARD P. IEYOUB
70804-9005
A~IORN EY GENERAL
JUN 2 0 2002
Opinion 02-0170
61
LAWS - General
La. R.S 37:832(C), La R.S 9.2782(A), La. R.S 9.2516, La R S 42’2
Honorable Joe McPherson
If a member of the Board of Embalmers and Funeral Directors continues to serve
beyond the statutonly presonbed term of two coneacutwe four-year terms as provided State Senator, District No. 29 in La. R.S 37:832(C), the appo~ntrnent would be null and void, and a vacancy would be creatod However, as stated in La R.S. 42:2. that member shall continue to
880 Robinson Bridge Road
d~sc~arge the dubes of his offica until a successor ~s inducted Further, all acts taken
by a member serv,lg beyond the statutory term are considered valid and effective
Woodworth, Louisiana 71485
where they concam the pubhc or rights of third persons, untd hzs tztle to the offioe ~s
adjudged insufficient and a successor replaces him.
T~e term "ct~ck" referenced in La. R.S. 9:2782(A) has the same meanzng as the one used in La. R.S. 9:3516. The term "nonsuffic~eht funds" as used m La R S. 9:2782,
Dear Senator McPherson: includes checks returned, "account closed’.

Please be advised that the office of the Attorney General is in receipt of your opinion request wherein you posed the following questions.:

Pursuant to La. R.S. 37:832(C), any member of the Louisiana State Board of Embalmers and Funeral Directors may serve two consecutive four-year terms at most. Another term is allowed only after the lapsing of one year directly proceeding the second four-year term. Would any member who continues to serve beyond the second of two consecutive terms to which they were appointed, or who continue to serve beyond the term to which they are appointed, be in violation of La. R.S 37:850 or any other law?
Are the acts of the board, which rely on the vote of such a member, be valid, voidable, or void? What means are available to remove such a member or have him replaced to comply with the law?

What is the meaning of the term "check" as used in La. R.S. 9:2782(A)?
Does the phrase "nonsufficient funds" include checks that are returned "account closed"?

The two statutes relevant to your first question are in pertinent part as follows:

La. R.S. 37:832. Louisiana State Board of Embalmers and Funeral Directors; appointments; terms of office

C. Each appointment shall be submitted to the Senate for confirmation.
Members of the board may serve two consecutive four-year terms.
However, at least one year shall elapse between the expiration of a member’s second consecutive term and his appointment to a subsequent term.

Page 2

Mr. Joe McPherson
Opinion No. 02-0170
Page 2

Our office is of the opinion that if a member continues to serve beyond the statutorily prescribed term of two consecutive four-year terms the appointment would be null and void, and a vacancy would be created. However, it must noted that La. R.S. 42:2 states:

Every public officer in this state except in case of impeachment or suspension, shall continue to discharge the duties of his office until his successor is inducted into office.

This statute takes us into your further inquiry as to whether acts taken by a board, which rely on the vote of such a member, are valid and enforceable. Here we turn to previous Attorney General Opinion number 94-151. This opinion dealt with whether the actions taken by the Gravity Drainage District Board, wherein some members were illegally appointed, were binding. Our office cited Fakier v. Picou, 158 So.2d 285 (La. App. 1963), in which the court stated even if the Board was not constituted in strict compliance with the statute or ordinance; it nevertheless is a de facto board. In assessing the validity of actions taken by such a board, the court stated that it is a matter of public policy to protect the public interest and the interest of those individuals who relied on the official acts of an unlawful officer. As such, the court concluded that the acts taken by that board are as valid and effective where they concern the public or rights of third persons, until his title to the office is adjudged insufficient. Therefore, actions taken by a board, which contains a member beyond their statutory term limit, are legal and enforceable.

Your second question asks our office to define the term "check" as is pertains to La. R.S. 9:2782(A). In answer to your question, we turn to La. R.S. 9:2516 which provides us with a list of terms along with their definitions. Because this provision falls under the same title as the one you referenced, we look to these definitions for guidance. La. R.S. 9:3516 states in pertinent part:

(7) "Check" means any check, draft, item, orders or requests for payment of money, negotiable orders, withdrawal or any other instrument used to pay a debt or transfer money from one to another.

It is therefore the opinion of this office that the term "check" referenced in La. R.S. 9:2782(A) has the same meaning as the one used in La. R.S. 9:3516.

Page 3

Mr. Joe McPherson
Opinion No. 02-0170
Page 3

You further requested our opinion as to whether the term "nonsufficient funds", as used in La. R.S. 9:2782(A), includes checks that are returned, "account closed". Recently, the First Circuit decided a case wherein they concluded that La. R.S. 9:2782 allows the collection of damages when a check is dishonored due to a "closed account". Telerecovery of La., Inc. v. Rayborn, 2002 WL 468033, (La. App. 1 Cir.). They reasoned that because a closed account has absolutely no funds available within the account, then there are nonsufficient funds to justify honoring it. Id, (emphasis added).

Our office, therefore, concludes that the term "nonsufficient funds" as used in La. R.S. 9:2782, includes checks returned, "account closed".

I hope this opinion sufficiently answers you questions. If you have any further questions, please do not hesitate to contact our office.

Very truly yours,

RICHARD P. IEYOUB
ATTORNEY GENERAL

BY:
"~VlR~NIA L. COREIL
ASSISTANT ATTORNEY GENERAL

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