Could a Louisiana town council member also serve on its historic district commission?

Plain-English summary

In 2005, the Louisiana Attorney General concluded that a member of the Clinton Town Council could also serve on the town's historic preservation commission. The AG treated the commission position as part-time appointive office, which the cited dual-officeholding rule did not bar for a local elected official. It also applied the statutory exception allowing a local governing body to appoint its own members to boards and commissions it creates and generally oversees.

The opinion tied that exception to the particular commission, which the local governing authority had created under R.S. 25:736. Its answer concerned those two positions, rather than every pairing of an elected office and a second public job.

Currency note

This opinion was issued in 2005. 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 Clinton council member sit on the historic preservation commission? A: Yes. The AG found that the two offices could be held at the same time under the statutes it discussed.

Did the opinion treat the commission seat as full-time employment?
A: No. It treated the seat as a part-time appointive office. The AG distinguished that from employment in the same subdivision and full-time appointive office, which it said R.S. 42:63(D) prohibited.

Why did it matter that the town created the commission?
A: The AG cited R.S. 42:64(A)(1)'s exception for a local governing body appointing its members to boards or commissions it created and generally controlled.

Background and statutory framework

Carol Shirley asked about simultaneous service on the Clinton Historic District Commission and Clinton Town Council. The AG read R.S. 42:63(D) together with R.S. 42:64(A)(1). The latter's quoted exception allows local subdivisions to appoint governing-body members to “boards and commissions created by them and over which they exercise general powers.” The opinion identified the historic preservation commission as such a body under R.S. 25:736 and concluded that “the law permits the concurrent holding of the positions here under consideration.”

Citations

• R.S. 42:63(D) and R.S. 42:64(A)(1) (dual-officeholding provisions quoted in the opinion).
• R.S. 25:736 (historic preservation commission authority quoted in the opinion).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/05-0010

Original opinion text

February 25, 2005
OPINION 05-0010

78 Dual Officeholding
Ms. Carol M. Shirley
R.S. 42:63(D); R.S. 42:64(A)(1); R.S. 25:736
Town of Clinton
Individual may serve on town council and historic preservation committee.
P. O. Box 8623
Clinton, LA 70722

Dear Ms. Shirley:

You have asked this office if a member of the Clinton Historic District Commission may also hold elected office as member of the Clinton Town Council. We respond in the affirmative.

R.S. 42:63(D) generally prohibits one from holding either full-time or part-time employment in the same political subdivision in which the elected office is held; further, one holding elected office may not hold any full-time appointive office. However, the statute does not prohibit one from holding part-time appointive office, such as member of an historic preservation committee. See R.S. 42:63(D).1

Further, R.S. 42:64(A)(1) permits local governing bodies to appoint its members to “boards and commissions created by them and over which they exercise general powers as provided in Article VI, Section 15 of the Constitution of Louisiana.2

1
R.S. 42:63(D) states:
D. No person holding an elective office in a political subdivision of this state shall at the same time hold another elective office or full-time appointive office in the government of this state or in the government of a political subdivision thereof. No such person shall hold at the same time employment in the government of this state, or in the same political subdivision in which he holds an elective office. In addition no sheriff, assessor, or clerk of court shall hold any office or employment under a parish governing authority or school board, nor shall any member of any parish governing authority or school board hold any office or employment with any sheriff, assessor, or clerk of court. (Emphasis added). 2 LSA-R.S. 42:64(A)(1) states: A. In addition to the prohibitions otherwise provided in this Part, no other offices or employments shall be held by the same person in combination if any of the following conditions are found to pertain and these prohibitions shall exist whether or not the person affected by the prohibition exercises power in conjunction with other officers: (1) The incumbent of one of the offices, whether or not in conjunction with fellow officers, or employment has the power to appoint or remove the incumbent of the other, except that local governmental subdivisions may appoint members of the governing body to boards and commissions created by them and over which they exercise general powers as provided in Article VI, Section 15 of the Constitution of Louisiana. A board or commission so created may elect officers from its own membership, and if a joint commission of two parishes, except a joint commission that has as its function the operation and maintenance of a causeway and its related roadways, may also appoint a member of one of such parish's governing body to be its general superintendent.

Page 2

Ms. Carol M. Shirley
OPINION 05-0010
Page 2

The historic preservation commission is such an entity, created by the local governing authority pursuant to R.S. 25:736.3 A member of the local governing body may also hold a position on the historic preservation committee created by the governing body. Thus, the law permits the concurrent holding of the positions here under consideration.

Very truly yours,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

BY: _______ KERRY L. KILPATRICK
ASSISTANT ATTORNEY GENERAL
KLK:ams

3
R.S. 25:736 states:
After final consideration of the report and recommendations of the planning or zoning agency or commission or of the historic preservation study committee, whichever the case may be, and upon determining that creation and establishment of a historic preservation district is in the public interest, the governing body may pass an ordinance or law creating and establishing a historic preservation district. Prior to the enactment of any regulations authorized herein, the planning or zoning agency or commission, or the historic preservation study committee, whichever the case may be, shall submit suggestions to the governing body for a proposed ordinance or law, designed to implement and carry out the recommendations of said agency, commission, or committee and the provisions of the Chapter. The governing body may then review said suggestions, and upon determining that the adoption of said suggestions or alternatives is desirable, the governing body may have prepared and may pass an ordinance, law, or resolution, whichever may be applicable, enacting appropriate regulations in accordance with the provisions of this Chapter, and in accordance with the following guidelines, terms, and conditions: (1) The chief executive official of the governmental unit shall appoint an historic preservation district commission consisting of not more than fifteen electors as designated in the ordinance, residing in the area served by the governmental unit, for four year terms each except that the terms of members of the first commission shall be staggered as set forth in the ordinance; and both they and their successors shall serve for four year terms thereafter. In making appointments, preference may be given as far as possible to members of historic, cultural, educational, archaeological, architectural, artistic and preservation organizations. Said appointments shall be subject to approval by a majority vote of the governing body. Only one historic preservation district commission may be established by a governmental unit except as prescribed under R.S. 25:745. (2) A commission shall elect annually from its own number a chairman, vice-chairman and any other officers it deems appropriate. All members shall serve without compensation. Reasonable rules and regulations not inconsistent with this Chapter may be adopted. (3) Subject to appropriations by the governing body, services of compensated clerical and technical assistants may be retained. Donations, trusts, contributions and gifts may be accepted by the historic preservation district provided that they are used to further the purposes for which it exists. (4) Vacancies shall be filled by appointment in the same manner as the original appointments and any member may be appointed for another term or terms. (5) Any member may be recalled at any time by the governing body for gross inefficiency, fraud or study neglect, but only after an open hearing and upon notice specifying the complaint involved. (6) Notwithstanding any other provision of law to the contrary, the members of the Donaldsonville Historic District Commission shall be residents and electors of the district.

Page 3

Ms. Carol M. Shirley
OPINION 05-0010
Page 3

OPINION 05-0010

78 Dual Officeholding

R.S. 42:63(D); R.S. 42:64(A)(1); R.S. 25:736

Individual may serve on town council and historic preservation committee.

Ms. Carol M. Shirley
Town of Clinton
P. O. Box 8623
Clinton, LA 70722

Date Received:
Date Released: February 25, 2005

KERRY L. KILPATRICK
ASSISTANT ATTORNEY GENERAL