Could a Louisiana council privately discuss hiring a parish attorney and rank candidates in writing?

Plain-English summary

In 2005, the Louisiana Attorney General said the Baton Rouge and East Baton Rouge metropolitan council could discuss a parish attorney appointment in executive session. It treated the position as an appointment rather than a vacancy in the council itself. The personnel exception required advance notice to the person under consideration and allowed that person to demand a public discussion.

The AG gave a different answer for the council's candidate rankings. Under the quoted rule that public-body votes be viva voce and recorded, each council member had to read a ranking aloud at the open meeting. Having an administrator read the evaluations and asking members merely to confirm them aloud was insufficient. The written evaluations were also public records, according to the opinion.

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 the council discuss parish attorney candidates in executive session? A: The AG said yes under the cited personnel provision, with advance notice and the candidate's ability to require an open discussion.

Was choosing a parish attorney the same as filling a vacancy on the council? A: No. The opinion distinguished appointment to the attorney position from filling a seat in the public body itself.

Could members silently submit rankings and just confirm a staff reading? A: No. The AG said each member should read the member's own ranking aloud because the rankings counted as votes requiring a viva voce record.

Were the written evaluation forms private?
A: The opinion said the evaluations would be public records subject to inspection.

Background and statutory framework

Parish Attorney Michael Ponder asked about private interviews and candidate-selection rankings. The AG cited a court decision allowing executive-session discussion of a school superintendent appointment and applied the same distinction to parish attorney selection. It quoted La. R.S. 42:5's requirement that “[a]ll votes made by members of a public body shall be the viva voce and shall be recorded.” The opinion then required members to read their rankings rather than merely validate someone else's oral account.

Citations

• La. R.S. 42:6.1A(1) (executive-session provision discussed in the opinion).
• La. R.S. 42:5C (open-meeting voting provision discussed in the opinion).
• Parent-Community Alliance for Quality Education, Inc. v. the Orleans Parish School Board, 385 So. 2nd 33 (June 4, 1980) (appointment distinction discussed in the opinion).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/05-0026

Original opinion text

April 27, 2005
OPINION NUMBER 05-0026

Mr. Michael Ponder
90-B-4 Public Meeting – State and Local Governing Bodies
Parish Attorney
Discussion by council members concerning the appointment of
Office of the Parish Attorney parish attorney may be held in executive session and votes on
City of Baton Rouge
the appointment of the parish attorney should be made by
council members and not merely confirmed by them.
222 St. Louis Street
Baton Rouge, LA 70821

Dear Mr. Ponder:

This office is in receipt of your recent opinion request wherein you inquire as to the applicability of certain provisions of the “open meetings” laws to the interview and selection process for the position of parish attorney for the City of Baton Rouge/Parish of East Baton Rouge. You specifically ask whether La. R.S. 42:6.1A(1) permits discussions of the appointment of a parish attorney to be conducted by the metropolitan council in executive session. Your second question is whether La. R.S. 42:5C, requiring all votes by members of a public body to be viva voce, might be met if each council member, in an open meeting, completes and signs an evaluation and ranking of each applicant to be used to determine the final three candidates.

With regard to your first question, the Louisiana Fourth Circuit Court of Appeals addressed a similar issue in Parent-Community Alliance for Quality Education, Inc. v. the Orleans Parish School Board, 385 So. 2nd 33(June 4, 1980) writ refused (June 23, 1980). The court held in that case, that the appointment of a school superintendent was not an appointment to a vacancy in a public body and thus discussions concerning the appointment could take place in executive session.

The court in Parent-Community Alliance for Quality Education, Inc. explained,

Article 6, Section 13 of the Louisiana Constitution of 1974 provides:

”(A) Vacancy; Appointment. Except as otherwise provided by this constitution, a vacancy in any local office filled by election wholly within the boundaries of a local government

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Opinion No. 05-0026
Michael Ponder
City Attorney
City of Baton Rouge
Page: -2-

subdivision or a school district shall be filled by appointment by the particular governing authority of the local governmental subdivision or school district in which the vacancy occurs, until it is filled by election as provided by law.

“(B) Exception. This Section shall apply to each local governmental subdivision unless otherwise provided by its home rule charter or plan of government.”

Likewise, R.S. 18:602B, as amended, provides:

“B. When a vacancy occurs in the membership of a city or parish school board, the remaining members of the board shall appoint a person who meets the qualifications of the office to fill the vacancy.”

These authorities place a duty upon a parish school board to make an appointment to fill a vacancy in its makeup within ten days. The proviso of R.S. 42:6.1 A (1) simply prohibits discussion in executive session of the appointment of a person to fill a vacancy, and has nothing to do with the appointment of a superintendent who is not a member of the school board.

It is thus obvious that the actions of the defendant Board in discussing qualifications of a potential superintendent in executive session is not prohibited. The Board was, in effect, merely discussing the hiring of an employee and not filling a vacancy in its membership.

The law should apply in a similar manner to the position of parish attorney as described in your request. It is therefore the opinion of our office that discussion in executive session concerning the appointment of the parish attorney is not prohibited.

An executive session may be held under R.S. 42:6.1A(1) to discuss the character, professional competence, or physical or mental health of a person being considered to an appointive office, other than appointment to a public body, provided that the person receives advance notice, and the person may require that the discussion be public.

Turning to your second question, La. R.S. 42:5 states, in pertinent part, “All votes made by members of a public body shall be the viva voce and shall be recorded

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Opinion No. 05-0026
Michael Ponder
City Attorney
City of Baton Rouge
Page: -3-

in the minutes, journal, or other official written proceedings of the body, which shall be a public document.” You ask, whether each council member must read his or her evaluation aloud or whether the chief administrator to the council may read each evaluation into the record and ask the respective council member to confirm his or her decision. The evaluation would be considered a public record subject to inspection and any action by the council would still be subject to the viva voce requirement.

Considering the liberal construction required in interpreting the “open meeting” laws, it is this office’s opinion that each council member shall read their respective rankings aloud rather than merely confirming their vote aloud. Should you have any questions regarding this matter, please do hesitate to contact our office.

Yours very truly,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

By: _________
CHARLES H. BRAUD, JR.
Assistant Attorney General

CCF, Jr./CHB, Jr./sfj

Page 4

SYLLABUS

OPINION NUMBER 05-0026

90-B-4 Public Meeting – State and Local Governing Bodies

Discussion by council members concerning the appointment of parish attorney may be held in executive session and votes on the appointment of the parish attorney should be made by council members and not merely confirmed by them.

Mr. Michael Ponder
Parish Attorney
Office of the Parish Attorney
City of Baton Rouge
222 St. Louis Street
Baton Rouge, LA 70821

DATE RECEIVED:

DATE RELEASED: April 27, 2005

Charles H. Braud, Jr.
Assistant Attorney General