Did Hammond's city council have to confirm an assistant city attorney chosen as prosecutor?

Plain-English summary

Hammond's mayor asked whether a city prosecutor appointed by the city attorney also needed a city-council confirmation vote. The prosecutor served as an assistant city attorney in a position the council had authorized and budgeted. In Opinion 03-0163, the Attorney General concluded no separate confirmation was required for the person chosen as assistant.

The AG read Section 4-02 of Hammond's home rule charter. It expressly required council confirmation when the mayor appointed the city attorney. Its separate paragraph on assistant city attorneys said the council authorized their positions and that they served at the city attorney's pleasure, but did not mention confirmation of each appointee. The AG treated that difference as controlling.

Currency note

This opinion was issued in 2003. 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.

What the opinion meant at issuance

City attorney and prosecutor

The opinion allowed the city attorney to select the assistant who served as prosecutor without a second confirmation vote. The assistant position itself still had to be authorized and funded by the council under the charter language supplied to the AG.

Mayor and council

The mayor's appointment of the city attorney remained subject to council confirmation. The AG distinguished that express charter rule from the process for assistants.

Common questions

Q: Did the council have to vote on the individual city prosecutor? A: The AG said no, where the prosecutor was an assistant city attorney chosen by the city attorney for an authorized and budgeted position.

Q: Could the city attorney create an unbudgeted assistant position alone? A: The opinion said the council had to authorize and budget the assistant position. It addressed selection of the person after that authorization.

Q: Did the same rule apply to the city attorney's own appointment? A: No. The charter expressly required the mayor's city-attorney appointment to receive council confirmation.

Background and statutory framework

Hammond's charter Section 4-02 governed both the city attorney and assistants. The request described a practice dating from the charter's start: the mayor appointed the city attorney with council confirmation, and the city attorney selected a prosecutor as an assistant without a separate council vote. The AG found the charter's omission of assistant confirmation meaningful.

Citations and references

Local authority quoted in the opinion: City of Hammond home rule charter, Section 4-02.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/03-0163

Original opinion text

DEPARTMENT OF JUSTICE
One American Place
301 Main Street, Suite 600
CIVIL DIVISION
P.O. Box 94005
BATON ROUGE
TEL.: (22.5) 342-7013
FAX: {225) 342-2090
RICHARD P. IEYOUB
70804-9005
ATTORNEY GENERAL

APR 2003
OPINION NUMBER 03-0163

71-1-B MUNICIPALITIES, Home Rule Charter

Mayson H. Foster
Assistant city attorneys appointed by the city attorney need
Mayor, City of Hammond
not be confirmed by the city council under the City of
Hammond home rule charter form of government.
P.O. Box 2788
Hammond, LA 70404-2788

Dear Mayor Foster:

You have asked for an opinion from our office concerning whether the city attorney may continue to appoint the city prosecutor without the requirement of the person named as city prosecutor being subjected to a confirmation vote by the city council. In your request you have provided us with the following information regarding the City of Hammond home rule charter.

Specifically you provided that Section 4-02 provides as follows:

A. The city attorney shall be appointed by the mayor, subject to confirmation by the council, and shall serve at the pleasure of the mayor. The city attorney shall be an attorney licensed to practice in the courts of Louisiana with at least five (5) year’s experience in the practice of law.
B. The city attorney shall serve as chief legal advisor to the mayor, council and 11 departments, offices and agencies, shall represent the City in all legal proceedings and shall perform any other duties prescribed by this charter or by ordinance.
C. Any assistant city attorneys authorized by the council shall serve at the pleasure of the city attorney.
D. No special legal counsel shall be employed by the City except by written contract and approval of the council.

You advise in your request that since 1977 when the City Charter went into effect, the "city attorney" has been appointed by the mayor and approved by favorable vote of the city council. You further advise that the "city prosecutor" has been appointed by the city attorney as an "assistant city attorney" as authorized and budgeted by the city council, but the person so named as city prosecutor has not been subjected to a vote by the city council and has served at the pleasure of the city attorney.

As you point out in your opinion request, Section 4-02 paragraph A plainly states that the city attorney shall be appointed by the mayor subject to confirmation by the council.

Page 2

Mayson H. Foster, Mayor
Opinion Number 03-0163
Page - 2 --

Paragraph C on the other hand, deals with appointments by the city attorney of assistant city attorneys and is absent of any mention of confirmation by the city council. The lack of the phrase, "subject to confirmation by the council" in paragraph C of Section 4-02, must be interpreted to mean that such confirmation is not required.

Considering the above, it is the opinion of our office that the term "authorized" in paragraph C refers to a created position for an assistant city attorney which must be authorized and budgeted by the council, but the person selected by the city attorney for the position need not be confirmed by the council.

Should you have any further questions please do not hesitate to contact our office.

Yours sincerely,

RICHARD P. IEYOUB
ATTORNEY GENERAL

CHARLES H. BRAUD, J
Assistant Attorney Gener~

RPI/CHB;mjb