Could Zachary remove a council member who interfered with city employee hiring?

Plain-English summary

Zachary's mayor asked in 2005 whether the city charter allowed removal of a council member who involved himself in hiring, firing, or supervising city employees. The Attorney General said the charter's express-prohibition and forfeiture provisions could reach active interference, such as a council member telling an employee he was fired. It distinguished that from merely advocating a firing, even strongly.

The AG said forfeiting an elected seat required procedural safeguards. It identified the right to confront accusers, a fair hearing on the alleged conduct, and a majority vote of a quorum of the city council on whether the council member committed a prohibited act.

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.

Common questions

Did criticizing a personnel decision trigger forfeiture?

The AG distinguished vocal advocacy from active participation. It said the charter's word "involve" appeared to require more than opposition, however strong.

What conduct did the opinion use as an example of interference?

It said a council member who told a city employee he was fired would risk forfeiture because that would be active engagement in the personnel process.

Could a council seat be forfeited without a hearing?

The opinion said a valid forfeiture process had to include a fair hearing and confrontation of accusers, followed by a majority vote of a council quorum on the alleged prohibited act.

Background and statutory framework

Section 2-02 of Zachary's Home Rule Charter provided for forfeiture when a council member violated an express charter prohibition. Section 2-05(B) barred council members from involvement in appointment, removal, direction, or supervision of city administrative officers and employees, except as otherwise provided. The AG read those clauses together and added due-process requirements to the forfeiture analysis.

Citations

• Zachary Home Rule Charter § 2-02 (forfeiture language quoted in the opinion).
• Zachary Home Rule Charter § 2-05(B) (personnel-interference prohibition quoted in the opinion).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/05-0218

Original opinion text

November 10, 2005
OPINION NO. 05-0218
77 – OFFICERS – Local & Municipal; Selection, Qualifications & Tenure; Vacancies

71-1-B MUNICIPALITIES - Homer Rule Charter Honorable Charlene M. Smith Zachary Home Rule Charter Section 2-05 (B) & Section 4-03 (C) Mayor, City of Zachary
Post Office Box 310
The Zachary Home Rule Charter does provide a mechanism for the
removal from office of a council person who interferes with the hiring, Zachary, Louisiana 70791 firing or overseeing of City officers or employees. However, the forfeiture provision, to be valid, must comply with certain fundamental
Dear Mayor Smith: due process requirements.

Your request for an Attorney General’s Opinion has been referred to me for research and reply. You inquire whether the Zachary Home Rule Charter (“the Charter”) provides a process for removal of a council person from office who involves himself with “the appointment, removal, direction, or supervision of a City administrative officer or employee.”

Section 2-02 of the Charter contains the “Forfeiture of Office” provision which reads as follows:

A Council member shall forfeit the office if such member (1) lacks at any time during the term of office any qualification for the office prescribed by this charter, (2) violates any express prohibition of this charter, or (3) is disqualified by law from holding public office. [Emphasis added.]

Prohibited conduct is defined in Section 2-05 (B) of the Charter as follows:

Except as provided elsewhere in the charter neither the council nor any of its members shall involve themselves in any manner in the appointment, removal, direction, or supervision of any City administrative officer or employee.

Pursuant to this language, a council person would appear to be in danger of forfeiting his council position if he were to be found to have involved himself “in the appointment, removal, direction, or supervision of any City administrative officer or employee.” The meaning of “involve” as used herein would seem to connote more than vocal opposition, however strident it may be. It would seem to target a council person’s active engagement or participation in the process of hiring, firing, or overseeing City officers or employees when he is not otherwise authorized to act. Under such a definition, a council person who tells a City employee he is fired would run the risk of forfeiture of his

Page 2

Honorable Charlene M. Smith
Mayor, City of Zachary
OPINION No. 05-0218
Page 2

position and office, whereas a council person who merely advocates the firing of such employee would not.

The forfeiture of a council person’s seat is a serious matter and may very well constitute a taking of a property right under either the Louisiana or United States Constitution, or both. A Home Rule Charter provision that allows for forfeiture would not withstand constitutional challenge unless it was interpreted to have been imbued with certain procedural safeguards. Such safeguards would include the right to confront one’s accusers, the right to a fair hearing of the prohibited acts alleged to have been committed, and a majority vote of a quorum of the Zachary City Council on the ultimate question of whether the council person engaged in a prohibited act.

In summary, the Zachary Home Rule Charter does provide a mechanism for the removal from office of a council person who interferes with the hiring, firing, or overseeing of City officers or employees. However, the forfeiture provision, to be valid, must comply with certain fundamental due process requirements.

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

Very truly yours,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

By:____
Christopher D. Matchett
Assistant Attorney General

CCF,Jr.:CDM:lrs

Page 3

OPINION NO. 05-0218

77 – OFFICERS – Local & Municipal; Selection, Qualifications & Tenure; Vacancies

71-1-B MUNICIPALITIES - Homer Rule Charter

Zachary Home Rule Charter Section 2-05 (B) & Section 4-03 (C)

The Zachary Home Rule Charter does provide a mechanism for the removal from office of a council person who interferes with the hiring, firing or overseeing of City officers or employees. However, the forfeiture provision, to be valid, must comply with certain fundamental due process requirements.

Honorable Charlene M. Smith
Mayor, City of Zachary
Post Office Box 310
Zachary, Louisiana 70791

Date Received

Date Released: November 10, 2005
CHRISTOPHER D. MATCHETT
Assistant Attorney General