Could Zachary's city council remove the city attorney whom the mayor had appointed?

Plain-English summary

Zachary's mayor asked whether the city council could remove the city attorney by majority vote after the mayor had appointed the attorney and the council had confirmed the appointment. In Opinion 03-0327, the AG answered no. Section 4-01 of Zachary's home rule charter placed the city attorney among department heads appointed by the mayor, subject to council confirmation, who served at the mayor's pleasure. The AG concluded that removal belonged to the mayor as appointing authority.

The opinion relied on earlier AG analyses of similar municipal provisions. One said a dismissed attorney was relieved of duties before a successor was confirmed. Another said a mayor's discharge authority under a different municipal arrangement was subject to aldermen confirmation. For Zachary, the AG concluded the mayor alone could remove the city attorney.

Currency note

This opinion is dated October 1, 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

Zachary mayor and council

Under the quoted charter clause, the mayor directed municipal departments and appointed their heads, including the city attorney, subject to council confirmation. Because those heads served at the mayor's pleasure, the AG assigned the city attorney's removal to the mayor.

City attorney

The AG treated service at the appointing authority's pleasure as permitting summary removal by that authority. It cited an earlier opinion explaining that a dismissed attorney was relieved of duties even if a successor had not yet been confirmed.

Common questions

Could Zachary's council fire the city attorney by majority vote?

The AG said no under the charter language presented. The mayor alone could remove the attorney.

Did council confirmation make the attorney answerable to the council for removal?

For Zachary, the AG concluded that the mayor alone could remove the city attorney under the charter provision. The opinion quoted an earlier analysis in which a mayor's discharge authority was subject to aldermen confirmation, but did not extend that qualification to Zachary.

Could an unconfirmed successor immediately take over?

The earlier opinion discussed by the AG said a nominated but unconfirmed successor lacked authority to perform the office's duties.

Background and statutory framework

The AG quoted Zachary Home Rule Charter Section 4-01 and compared it with a Hammond charter clause addressed in Opinion 81-208. It also referred to Opinion 86-705, which assigned discharge of a municipal attorney to the mayor rather than the board of aldermen. The quoted earlier reasoning cited Ehret v. Police Jury on removal of an officer without a fixed term.

Citations and references

• Zachary Home Rule Charter Section 4-01: appointment, confirmation, and service at the mayor's pleasure.
• Ehret v. Police Jury, 136 La. 391, 67 So. 176: cited in the prior opinion quoted by the AG.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/03-0327

Original opinion text

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DEPARTMENT OF JUSTICE
CIVIL DIVISION
P.O. Box 94005
BATON ROUGE
TEL.: (504) 342-7013
FAX: (504) 342-2090
RICHARD P. IEYOUB
70804-9005
ATTORNEY GENERAL

OCT 1 2003
OPINION 03-3:27
77 - Officers - Local & Municipal;
Selection, Qualifications &
Tenure; Vacancies
71 - Municipalities

The mayor and not the
Mayor Charlene M. Sm~
city council can remove
the city attomeY, who is
City of Zachary appointed by the mayor
P.O. Box 310
and senses at his pleasure.
Zachary, La. 70791

Dear Mayor Smith:

This off’~e is in receipt of your request for an opinion of the Attorney General in regard to removal of the City Attorney. You set forth the provisions of Section 4-01 of the Zachary Home Rule Charter as follows:

Except as othe~vise provided by this Charter, all departments, office and agencies shall be under the direction and supervision of the Mayor, and the heads of all departments created by or under this Charter, including the City Attorney, shall-be appointed by the Mayor, subject to confirmation by the ¯ Council, and shall serve at the pleasure of the Mayor.

You ask, considering this provision, and any applicable state law and jurisprudence, =May the City Council of zachary, by majority vote, remove the city attorney appointed by the mayor and confirmed by the council and who, according to Section 4-01 of the Zachary Home Rule Charter, shall serve at the pleasure of the Mayo.r?"

In Atty. Gen. Op. 81-208 this office was presented with a similar provision as that in question wherein the Hammond Special Charter provided as follows:

The city attorney shall be appointed by the mayor, subject to confirmation by the council, and at the pleasure of the mayor.

The facts therein indicated the mayor dismissed the city attomey, and appointed a successor. The question was whether the appointee could be inducted into office and commence performance of the duties, subject to the confirmation of the council. Relative to this question this office stated, "The initial issue which must be analyzed is the status of the city attorney who has been dismissed."

Page 2

Mayor Charlene M. Smith
OPINION 03-327
Page 2

This office observed the determination of such legal issues is dependent upon the examination of the law under which a municipality operated, and found, =VVhere there is no t’o(ed term for the appointed official, it has been recognized that the appointing authority may summarily remove the appointive officer, (Ehret v. Police Jury, 136 La. 391, 67 So. 176) and the charter provision limits the tenure of the city attorney to service at the pleasure of the mayor." This office stated, =In conclusion, it is our opinion that where an appointing authority has suspended and dismissed an officer who serves at the pleasure of the appointing authority, the officer is summarily relieved from further responsibility and although no successor has been inducted into office; and, that when a successor has been nominated but not confirmed, the nominee is without the power or authority to commence performance of the duties of the office."

In Atty. Gen. Op 86-705 this office found that the mayor was the chief municipal administrative officer and was given the authority to supervise and direct the day to day administration and operation of all municipal departments and agencies, which included the power to remove all municipal employees other than police department personnel. It then concluded, =Therefore, it is the mayor and not the board of aldermen, who has the authority to discharge or fire the municipal attorney. This authority is subject only to confirmation by the board of aldermen."

Following the prior reasoning of this office on similar issues, we must conclude the mayor alone, as the appointing authority, can remove the city attorney.

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

Very truly yours,

RICHARD P. IEYOUB
ATTORNEY GENERAL

BARBARA B. RUTLEDGE
~
Assistant Attorney General

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