Who could perform DeQuincy's mayoral duties while its mayor was absent or unable to serve?

Plain-English summary

DeQuincy's acting mayor asked whether the city had taken the proper steps after Mayor L. A. Henagan became ill and designated the council chairman to carry out mayoral duties. In Opinion 03-0318, the AG distinguished temporary absence from disability under the city's home rule charter. The mayor's designation initially fit the temporary absence provision on the AG's understanding that he was away from the city and the absence did not exceed thirty days.

The AG understood that the mayor was back in the city but still unable to perform his duties. Section 3-09's disability procedure then applied. The mayoral designation had been made, but the AG had no information that the council had passed the resolution needed to designate a three-physician panel. The opinion therefore did not say that every required step had been completed. It also found no dual officeholding violation from a council member temporarily handling mayoral duties.

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

DeQuincy council and clerk

Under the charter text quoted by the AG, the mayor's designee handled duties when the mayor was absent from and unavailable to the city. For disability, Section 3-09 provided for a written declaration by the mayor and a separate council resolution selecting three physicians. Their written declaration of inability would lead to a council designee filling the office until the panel declared the inability ended. The AG lacked information that the council resolution had occurred.

Acting mayor and council members

The AG treated temporary performance of the mayor's duties by a council member as distinct from prohibited dual officeholding. It found no violation from that temporary service.

Common questions

Could the mayor name a council member to act while he was away from DeQuincy?

The AG said the mayor's designation had properly begun the temporary absence process on the facts it understood.

Did the mayor's return to the city end the matter?

No. The AG understood that the mayor remained unable to perform his duties and said the charter's disability procedure then applied.

Had the council completed all the disability steps?

The AG could not say so. It had no information that the council had adopted the resolution to designate the three-physician panel.

Did the acting role violate dual officeholding rules?

The AG said a council member temporarily exercising mayoral duties would not violate those rules during that time.

Background and statutory framework

The opinion quoted Sections 3-08 and 3-09 of the DeQuincy Home Rule Charter. Section 3-08 addressed absence from and unavailability to the city, including notice after an expected absence of more than seventy-two hours. Section 3-09 addressed inability to discharge mayoral duties, physician review, and a possible vacancy declaration after six months with a public hearing. The AG applied those separate procedures to the circumstances reported by the acting mayor.

Citations and references

• DeQuincy Home Rule Charter, Sections 3-08 and 3-09: provisions quoted and applied in the opinion.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/03-0318

Original opinion text

~tate o{ ~ouisizma
DEPARTMENT OF JUSTICE
CIVIL DIVISION
P.O. Box 94005
TEL.: (504) 342-7013
BATON ROUGE
FAX: (504) 342-2090
RICHARD P. IEYOUB
70804-9005
ATTORNEY GENERAl

OCT I 4 2003
71-1-B Municipalities -
OPINION 03-$18
Home Rule Charter
77 - Officers

Whenever the mayor is absent from and unavaialbe to the City or disabled the duties of the office of mayor shall be exercised by the mayor’s designee.
When physicians declare the mayor
Hon. Lawrence Henagan
is unable to discharge his duties,
Acting Mayor
the majority of the council shall the
designation. A councilman designee
City of DeQuincy
would not violate dual officeholding.
P.O. Box 968
DeQuincy, LA 70633

Deer Acting Mayor Henagan:

This off’~e is in receipt of your request for an opinion of the Attomey General as to whether the necessary steps have been taken to carry on during the absence of the Mayor, L. A.
Henagan, due to his illness. You indicate that Mayor Henagan has designated by a signed statement that you, as chairman of the city council, were to execute the duties of mayor in his absence in accordance with Section 3-08 and/,oi: 3-09 of the DeQuincy Home Rule Charter. You ask whether all the necessary steps have been taken to carry on during Mayor Henagan’s absence, and to assure that there is no violation of the dual office holding statute.

It is difficult for us to answer your question definitively as to whether all necessary steps have been taken during the mayor’s absence inasmuch as the pertinent provisions depend upon factual circumstances regarding the absence about which we are unaware.

In Section 3-08, Mayor’s Temporary Absence, provides as follows:

A. Whenever the mayor is absent from and unavailable to the City, the powers and duties of the office of mayor shall be exercised by the mayor’s designee. The mayor shall file the name of the person so designated with the clerk of the council. In the absence of such a filing, the mayor’s designee shall be designated by the chairman of the Council.

B. When the mayor expects to be absent from the City for more than seventy-two (72) consecutive hours, the mayor shall notify the clerk of the council in writing of the expected duration of the absence.

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Mayor Lawrence Henagan
OPINION 03-318
Page 2

C. If a temporary absence of the mayor extends to more than thirty (30) consecutive days, the office shall become vacant and shall be filled in accordance with Section 3-07 (Vacancies), except that the council may authorize a longer absence not to exceed a total of sixty (60) consecutive days.

This provision is entitled =Mayor’s Temporary Absence" and states it is to apply =whenever the mayor is absent from and unavailable to the City" which we note is in the conjunctive of =absent from and unavailable to the City’.

In his absence =the powers and duties of the office of mayor shall be exercised by the Mayor’s designee’. However, if the mayor expects to be absent for more than seventy-two consecutive hours, he shall notify the clerk of the council in writing, and if more than 30 consecutive days, the office shall become vacant.

By telephone conversation we have confirmed that the mayor was absent from the city when he designated the chairman of the city council to execute the duties of mayor. However, we do not know how long he was absent, but will assume it was not more than 30 days whereby the office could be declared vacant.

It is our understanding the mayor is no longer absent from the city which would appear to make the provisions of Section 3-09, Mayor’s Disability, applicable which provides the following:

A. Whenever the mayor transmits to the clerk of the council a written declaration slating inability to discharge the powers and duties of the office, and until the mayor transmits to the clerk of the council a written declaration to the contrary, the offP..e of the mayor shall be filled in the same manner as in Section 3-08 (A).

B. Whenever a panel of three (3) qualified medical physicians, designated by resolution adopted by the favorable vote of at least a majority of the authorized membership of the council, transmits to the clerk of the council its written declaration that the mayor is unable to discharge the powers and duties of the office, the office of the mayor shall be filled by the council by the council’s designee. The person filling the office shall serve until a panel of three (3) qualified medical physicians, designated by resolution adopted by the favorable vote of at least a majority of the authorized membership of the council, transmits to the clerk of the council its written declaration that the mayor’s inability has ended. The medical physicians shall review the

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Mayor Lawrence Henagan
OPINION 03-318
Page 3
mayor’s disability at least once every three (3) months until such time as it has been determined that the disability has ended.

C. Should the mayor be unable to discharge the powers or duties of the office for a period exceeding six (6) consecutive m~nths, the council shall have the authority upon the favorable vote of at least a majority of its authorized membership to declare the office of the mayor vacant due to disability, provided, however, that the council shall hold a public hearing on the issue prior to any such declaration.

Inasmuch as the mayor was absent from the city and unavailable to the city, the steps of Section 3-08 were initially properly followed whereby the mayor had transmitted a written declaration to the clerk of the council that he would be absent due to illness, and his designee would exercise the duties of the office of mayor. This was a temporary absence due to hospitalization which we believe to have been more than 72 hours but that did not extend to more than 30 consecutive days whereby the office would become vacant pursuant to the provisions of Home Rule Charter, Section 3-08.

It is our understanding since the mayor is no longer absent from the City but is presently unable to return to his duties, we find that it is necessary to follow Section 3-09 (A) which initially provides "the office of the mayor shall be filled in the same manner as in Section 3-08 (A)’. This first step has been done by the mayor designating Councilman Henagan
to execute the duties of mayor.
.~.~.

However, that section further provides whenever three qualified medical physicians, =who are designated by a resolution adopted by a majority of the council’, transmit to the clerk of the council its written declaration that the mayor is unable to discharge the duties of the office, the =office of the mayor shall be filled by the council’s designee’, who shall serve until a panel of three qualified medical physicians designated by resolution adopted by the fav le vote of a majority of the council, transmits to the clerk of the council =its written declaration that the mayor’s inability has ended."

We have no information that any resolution, which would be the next step, was enacted by a majority of the council to have three qualified medical physicians transmit a written declaration that the mayor was unable to discharge the duties of the office. After such a resolution, the next step is to have the office of the mayor filled by the council’s designee.

The designee would serve until the next step, which would be when the physicians, who must review the mayor’s disability at least once every three months, determine that the disability has ended.

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Mayor Lawrence Henagan
OPINION 03-318
Page 4

However, if the disability exceeds six consecutive months, the next step would require a public hearing, and then by a favorable vote of a majority of the council, the office may be declared vacant due to inability to discharge the duties of the office.

In regard to the question whether there is any violation of dual officeholding, we find the designee would temporarily be handling the duties of mayor, and as such would not be in violation of the dual officeholding during that time.

Relative to this issue we find it pertinent to note in Atty. Gen. Op. 93-398A and Atty. Gen. Op. 01-36 that this office stated a mayor pro tempore retains his right to vote as an alderman, but nothing therein indicates any problem of dual officeholding.

We hope this sufficiently answers your inquiry, but if we can be of further assistance, do not hesitate to contact us.

Very truly yours,

RICHARD P. IEYOUB
A’I-I’ORNEY GENERAL

BARBARA B. RUTLEDGE
Assistant Attorney General

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