Could an Orleans Parish civil sheriff put a deputy on paid leave or assign lesser duties while a federal indictment was pending?

Plain-English summary

The Orleans Parish civil sheriff asked what employment status was permissible for a deputy under federal indictment: paid administrative leave, duties that did not require the deputy's commission, or continued work. In 2005, the Attorney General emphasized that an indictment was not a conviction. Applying the removal provision in R.S. 42:1411 and the presumption of innocence, it said the public officer "should not be suspended or placed on any leave" until a final conviction. The opinion did not present an indictment as an automatic ground for removing the deputy from work.

The AG separately called the deputy an at-will employee and said the sheriff had broad authority to dismiss him. It did not reconcile that authority with its statement against suspension or leave before conviction. On the question about continued duties, the AG concluded that an indicted employee's performance of any employment duties did not violate R.S. 42:1111, which addressed payments from nonpublic sources. The opinion cited the statutory exclusion of public salary and related benefits from "things of economic value" and suggested consulting the Ethics Administration as well.

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 a federal indictment automatically remove the deputy from office?

No. The AG distinguished an indictment from a felony conviction and read R.S. 42:1411 as requiring a conviction during the officer's term for removal under that provision.

Did the opinion approve paid administrative leave during the indictment?

No. It said the officer should not be suspended or put on any leave until final adjudication of a conviction. It separately recognized the sheriff's broad power to dismiss an at-will deputy; the opinion did not explain how those two statements would apply to every employment decision.

Could an indicted deputy perform administrative duties without violating the cited ethics payment rule?

The AG said performance of "any employment duties" by the indicted employee would not violate R.S. 42:1111 under its analysis. It did not issue a comprehensive ethics ruling and suggested consulting the Ethics Administration.

Was public salary treated as a prohibited outside payment?

No. The opinion quoted R.S. 42:1102's exclusion of an employee's salary and related public-employment benefits from the relevant definition of "thing of economic value."

Background and statutory framework

Sheriff Paul Valteau asked about a deputy facing a federal indictment, including leave with pay and reassignment to tasks that would not require use of a commission. The AG cited R.S. 42:1411 on removal after a felony conviction and R.S. 42:1111 on payments from nonpublic sources. It quoted the definition in R.S. 42:1102 to explain why ordinary public salary did not make continued employment a violation of the particular ethics payment rule. Its concluding suggestion to consult the Ethics Administration left further ethics questions open.

Citations

• R.S. 42:1411 (felony conviction and removal from public office).
• R.S. 42:1111 (payments from nonpublic sources).
• R.S. 42:1102 (definition excluding public salary and related benefits).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/05-0277

Original opinion text

July 29, 2005
OPINION NUMBER 05-0277

77- OFFICERS – Local & Municipal, Selection, Qualifications & Mr. Paul Valteau, Jr., Sheriff Tenure; vacancies Civil Sheriff
Parish of Orleans
A public officer shall be removed from office for conviction of felony
403 Civil Courts Building during his term of office. Since an indictment is not a conviction, the public officer should not be suspended or placed on any leave unless
421 Loyola Avenue
and until there is a final adjudication of a conviction.
New Orleans, LA 70112

Dear Sheriff Valteau:

You are requesting an Opinion from this Office regarding the legally permissible status of an employee under federal indictment.

Specifically, you asked:

1) May a Deputy Civil Sheriff be placed on administrative leave with pay
and all privileges of employment while a federal indictment against the
individual is pending?
2) In the alternative, may the Deputy Civil Sheriff be assigned to menial
administrative duties which do not require the use of his commission
or the exercise of authority?
3) If the employee is allowed to perform his function in either one of the
first two scenarios, would such employment constitute a violation of
R.S. 42:1111(a)?

First, it is important to note that the deputy sheriff is an at-will employee who serves at the pleasure of the sheriff and you, as sheriff, have broad authority to dismiss the deputy if you so desire.

Beyond that, our constitution and jurisprudence has long held that a defendant’s right to the presumption of innocence is sacrosanct and inviolable.(Article 1 sec. 16; State v. Jones, 734 So. 2d 670 (La. App. 3 Cir. 1999)). Our Supreme Court has ruled that two of the most fundamental features of our criminal justice system are the presumption of innocence and the requirement that the state prove each element of the crime beyond a reasonable doubt. State v. Taylor, 396 So. 3d 1278 (La. 1981).

Page 2

Opinion No. 05-0277
Sheriff Paul Valteau
Page: -2-

R.S. 42:1411(Public Officer; ground for removal; suspension; definitions) states that a public officer shall be removed from office for conviction, during his term of office, for a felony. Obviously, an indictment is not a conviction; therefore, the public officer should not be suspended or placed on any leave unless and until there is a final adjudication of a conviction.

Your letter requests an interpretation of “duly entitled” as it appears in R.S. 42:1111.

R.S. 42:1111(Payment from nonpublic sources) states in Section A:

A. (1) Payments for services to the governmental entity. No public servant shall receive anything of economic value, other than compensation and benefits from the governmental entity to which he is duly entitled, for the performance of the duties and responsibilities of his office or position…

R.S. 42:1102 sets forth the Definitions for terms in this Chapter.
(22)(a) defines “Thing of economic value,” in pertinent part, as:
money or any other thing having economic value, except promotional items having no substantial resale value; food, drink, or refreshments consumed by a public servant, including reasonable transportation and entertainment incidental thereto, while the personal guest of some person, and, with reference to legislators and employees in the legislative branch of state government only, reasonable transportation when organized primarily for educational or informational purposes, including food and drink incidental thereto, and includes but is not limited to:

(i) Any loan, except a bona fide loan made by a duly licensed lending institution at the normal rate of interest, any property interest, interest in a contract, merchandise, service, and any employment or other arrangement involving a right to compensation.
(ii) Any option to obtain a thing of economic value, irrespective of the conditions to the exercise of such option.

Page 3

Opinion No. 05-0277
Sheriff Paul Valteau
Page: -3-

(iii) Any promise or undertaking for the present or future delivery or procurement of a thing of economic value.

(b) In the case of an option, promise, or undertaking, the time of receipt of the thing of economic value shall be deemed to be, respectively, the time the right to the option becomes fixed, regardless of the conditions to its exercise, and the time when the promise or undertaking is made, regardless of the conditions to its performance.

(c) Things of economic value shall not include salary and related benefits of the public employee due to his public employment or salary and other emoluments of the office held by the elected official.

According to this definition, performance of any employment duties by the employee under indictment would not be a violation of R.S. 42:1111.

You also referenced Attorney General Opinions 02-0321 and 00-254. These reiterate the presumption of innocence instilled in our laws and provide that no employee can be suspended until convicted of the crime accused.

Additionally, the Ethics Administration is another avenue which should be explored to make sure you have fully researched this issue

Yours very truly,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

By: _________
WILLIAM P. BRYAN, III
Assistant Attorney General

CCF, Jr./WPB, III/sfj

Page 4

Opinion No. 05-0277
Sheriff Paul Valteau
Page: -4-

05-0277
SUMMARY

77- OFFICERS – Local & Municipal, Selection, Qualifications & Tenure; vacancies

A public officer shall be removed from office for conviction of felony during his term of office. Since an indictment is not a conviction, the public officer should not be suspended or placed on any leave unless and until there is a final adjudication of a conviction.

Mr. Paul Valteau, Jr. Sheriff
Civil Sheriff
Parish of Orleans
403 Civil Courts Building
421 Loyola Avenue
New Orleans, LA 70112

DATE RECEIVED:

DATE RELEASED: July 29, 2005

William P. Bryan, III
Assistant Attorney General