Could a Louisiana town lower a mayoral appointee's salary to its base rate during an unexpired term?

Plain-English summary

A Louisiana town considered an ordinance setting a base mayoral salary, adding annual increases during a mayor's tenure, then returning to the base rate when a new mayor took office. In 2005, the Attorney General said the town could establish a method of fixing compensation that included a base rate and reset provisions. It could not use that reset to reduce the salary of an appointee who took over during the same unexpired elected term. The appointee was entitled to the salary paid to the departing incumbent for the rest of that term.

The opinion read the statutory and constitutional ban on reducing an elected official's pay during a term as protecting the office during that term, including someone appointed to fill a vacancy. It distinguished that midterm protection from the town's authority to set compensation for a new term.

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

Did an appointed replacement have the same midterm salary protection as the elected mayor?

The AG said yes for an appointee serving the unexpired elected term. It read the protection as attached to the office and term, so the appointee could not be paid less than the outgoing incumbent during that term.

Could the town adopt a base salary that applied when a new term began?

The opinion said the board of aldermen could establish a compensation method by ordinance, including a base salary and reset provisions. Its objection was to applying a reset during the unexpired term after an incumbent's salary had increased.

Could the board reduce the outgoing mayor's salary during the same term?

No. The statute quoted in the opinion barred reduction of an elected official's compensation during the term for which the official was elected. The AG applied the same protection to the midterm appointee.

Background and statutory framework

Attorney John M. Sharp asked whether LSA-R.S. 33:404.1 applied to a person appointed by the aldermen to fill an elected official's unexpired term. He also described a possible mayoral pay ordinance that would increase pay annually but reset it to a base rate upon a change of occupant. The AG read LSA-R.S. 33:404.1 and LSA-Const. Article VI, Section 12 (1974) to prohibit a salary cut during the term. It concluded the appointee received the predecessor's salary, while an ordinance could prescribe a base-rate method outside that midterm restriction.

Citations

• LSA-R.S. 33:404.1 (municipal officer compensation and midterm reduction rule).
• LSA-Const. Article VI, Section 12 (1974) (constitutional compensation protection cited in the opinion).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/05-0100

Original opinion text

March 10, 2005
OPINION NUMBER 05-0100

77- MUNICIPALITIES
77-A OFFICERS-Local & Municipal
Mr. John M. Sharp
Attorney at Law
The salary of an individual appointed to fill the un-expired term
15171 So. Harrell’s Ferry Road, Suite C of an elected official can not “roll back” to the base salary
Baton Rouge, LA 70816
established by ordinance prior to fulfillment of the term without
offending LSA-R.S. 33:404.1 and LSA-Const. Art. VI, Section
Dear Mr. Sharp: 12 (1974).

Your request for an Attorney General’s opinion was forwarded to me for research and reply. Your question as we understand it is, whether the provisions of LSA- R.S. 33:404.1 are applicable to an individual who has been appointed by the board of alderman to fill the un-expired term of an elected official?

Louisiana Revised Statute 33:404.1 provides that:

The board of alderman shall by ordinance fix the compensation of the mayor, aldermen, clerk, chief of police, and all other municipal officers. The board of aldermen may by ordinance increase or decrease their compensation and the compensation of any non- elected municipal officer and may increase the compensation of other elected officials. However, the board of aldermen shall not reduce the compensation of any elected official during the term for which he is elected. (Emphasis Added).

As provided in LSA-R.S.33:404.1, the compensation of an elected official may be reduced, but not during the term served. The same applies for an appointee who serves the un-expired term of the elected official. Our office addressed this issue in La. Atty. Gen. Op. Nos. 98-483 and 02-0027, wherein we opined that the “appointment of an individual to fill the position on an interim basis does not change the protection and benefits afforded one who occupies this elected position. As such, an appointee who serves in such a capacity for the remainder of the elected term as contemplated by LSA-R.S. 33:404.1, notwithstanding the shorter term, has the same safeguards while serving the un-expired term. To reduce the appointees salary while serving an un-expired term would be a direct violation of 33:404.1 and would also stand in violation of constitutional authority, specifically, LSA-Const. Article VI, Section 12 (1974), which sets forth the following:

Page 2

Mr. John M. Sharp
Opinion No. 05-100
Page 2

The compensation or method of fixing the compensation of an elected official of any local governmental subdivision which operates under a home rule charter or plan of government, as provided in Sections 4 and 5 of this Article, shall provided in its charter. The compensation or method of fixing the compensation of an elected official of any other local governmental subdivision shall be provided by law. Compensation of a local official shall not be reduced during the term for which he is elected.

In your opinion request, you also mentioned the possibility of establishing, by ordinance, a base salary for the mayor’s position. You said that the concept envisioned by the town is to increase the mayor’s salary annually in established increments during his tenure, but to have the “base” salary remain fixed by ordinance, so that each time a new mayor is elected or his position is assumed by appointment, the new mayor would commence service with a salary “rolled back” to the base amount set by the board pursuant to the ordinance. As provided by 33:404.1 and LSA-Const. Art VI, Sec. 16, local governmental subdivisions are given authority to set compensation or the method of fixing compensation through an ordinance. Accordingly, the board has been granted authority, to establish a method of fixing compensation for the mayor as well as other municipal employees, which reasonably includes provisions establishing a base salary and “roll back” provisions. However, once a term begins and the elected official’s salary increases pursuant to established increments during the tenure, should the elected official leave prior to the expiration of the term, an appointee is entitled to the salary received by the outgoing incumbent as provided by law. Thus, should an appointed individual fill the un-expired term, you can not “roll back” the salary to the base salary established by ordinance during the term without offending the constitutional and statutory provisions. In closing, this office believes that you are correct in your assumption that 33:404.1 is addressed to the position/office as opposed to the occupant/individual of the office.

We hope this opinion sufficiently addresses your concerns. If our office may be of further assistance, please do not hesitate to contact us.

Yours very truly,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

BY: ________
CHARLENE PATTERSON
Assistant Attorney General

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Mr. John M. Sharp
Opinion No. 05-100
Page 3

OPINION 05-0100

77- MUNICIPALITIES
77-A OFFICERS-Local & Municipal

R.S. 33:404.1

The salary of an individual appointed to fill the un-expired term of an elected official can not “roll back” to the base salary established by ordinance prior to fulfillment of the term without offending LSA-R.S. 33:404.1 and LSA-Const. Art. VI, Section 12 (1974).

Mr. John M. Sharp
Attorney at Law
15171 So. Harrell’s Ferry Road, Suite C
Baton Rouge, LA 70816

Date received:
Date released: March 10, 2005

CHARLENE PATTERSON
ASSISTANT ATTORNEY GENERAL