Did Baldwin’s mayor and aldermen have to fire an officer after the police chief recommended dismissal?

Plain-English summary

Baldwin’s elected police chief recommended that an officer be fired for alleged insubordination and other conduct. The mayor and aldermen discussed the matter but had not resolved it. In 2006, the Attorney General said the chief’s role under R.S. 33:423 was to recommend personnel actions; the mayor and board were not bound to adopt the recommendation.

The AG relied on a Louisiana Supreme Court reading of “recommendation” as advice rather than a binding decision. It also declined to decide whether the officer had actually been insubordinate because that depended on witness accounts and other facts. The opinion left the review and action regarding the officer to the mayor and board of aldermen.

Currency note

This opinion was issued in 2006. 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

Was the town required to fire an officer because the chief recommended it?

No. The AG said the chief’s recommendation was advisory and need not be followed by the mayor and aldermen.

Could officials discipline or dismiss police personnel without a recommendation from the elected chief?

The opinion said R.S. 33:423 made it mandatory for the elected chief to recommend the listed personnel actions. It addressed the town’s discretion after receiving a recommendation.

Did the AG decide whether this officer committed insubordination?

No. It said the question was fact-sensitive and belonged to fact finders, beginning with the mayor and board’s review.

Background and statutory framework

R.S. 33:423 described an elected municipal police chief’s law-enforcement duties and personnel-recommendation role. The AG cited Grant vs. Grace for the rule that the town need not adopt those recommendations. It separated that legal rule from the unresolved facts about the Baldwin officer.

Citations

• R.S. 33:423 (chief’s personnel-recommendation role).
• Grant vs. Grace, 870 So.2d 1011 (LA 2004) (recommendations are not binding, as cited by the AG).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/05-0401

Original opinion text

January 26, 2006
OPINION 05-0401

Mr. Gerald Minor
71 MUNICIPALITIES
Chief of Police
77 OFFICERS
Post Office Box 767 R.S. 33:423; R.S. 33:321 et seq.; R.S. 51:2232(11); R.S.33:423.3 Whether or not the acts of police department employee are acts of Baldwin, LA 70514 insubordination is a question of fact left for review and resolution by the Mayor and Board of Aldermen.
Dear Chief Minor:

You advise you are the elected police chief for the Town of Baldwin. You further advise that in May of 2005 you recommended to the Mayor and Board of Aldermen of the Town of Baldwin that an officer in your employ be fired for insubordination, conduct unbecoming an officer, interfering with and interrupting an ongoing investigation, and disrespecting the chief of police in a public setting.

At the May 2005 town meeting the matter was discussed but tabled until the next board meeting. Apparently, the situation regarding the officer named in your correspondence remains unresolved.

R.S. 33:423 provides:

A. The marshal shall be the chief of police and shall be ex officio a constable. He shall have general responsibility for law enforcement in the municipality, and shall be charged with the enforcement of all ordinances within the municipality and all applicable state laws. He shall perform all other duties required of him by ordinance. In those municipalities governed by the provisions of this Part, R.S. 33:321 et seq., which have a chief of police elected by the qualified voters thereof, he shall make recommendations to the mayor and board of aldermen for appointment of police personnel, for the promotion of officers, to effect disciplinary action, and for dismissal of police personnel. Such nominations or recommendations are to be made regardless of race, color, disability, as defined in R.S. 51:2232(11), or creed.
B. The provisions of Subsection A of this Section shall not be construed to limit or restrict the provisions of R.S.33:423.3.

Pursuant to R.S. 33:423, it is mandatory that the chief of police make a recommendation to the mayor or board of aldermen for the “appointment of police

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Mr. Gerald Minor
OPINION 05-0401
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personnel, for the promotion of officers, to effect disciplinary action and for dismissal of police personnel.” The word recommendation “refers to an action which is advisory in nature rather than one having any binding effect.” Black’s Law Dictionary 626 (5TH ED. 1979). See Grant vs. Grace, 870 So.2d 1011 (LA 2004), at page 1016.

The Louisiana Supreme Court in Grace, supra, stated that “a ‘recommendation’ is merely advice which need not be followed…..R.S. 33:423 “in no way mandates that the municipality adopt, in whole or in part, the recommendation of the chief of police.” Grace, at 1016.

Under R.S. 33:423, a police chief must make recommendations with respect to any of the employment actions enumerated therein to the municipality. However, the municipality need not adopt such recommendation and may, after the recommendation, take its own action as relates to the police officer.

You have provided statements of various witnesses to the actions of this police officer, as well as the statement of the officer whose insubordination is alleged. The question of whether the acts committed by this municipal police officer amount to insubordination are fact-sensitive and can only be answered by finders of fact. It is outside the function of this office to make findings of fact. It is first incumbent upon the mayor and board of aldermen to review the matter and take its own action regarding this officer.

Very truly yours,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

BY: _______ KERRY L. KILPATRICK
ASSISTANT ATTORNEY GENERAL

KLK:ams

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Mr. Gerald Minor
OPINION 05-0401
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OPINION 05-0401

71 MUNICIPALITIES
77 OFFICERS

R.S. 33:423; R.S. 33:321 et seq.; R.S. 51:2232(11); R.S.33:423.3

Whether or not the acts of police department employee are acts of insubordination is a question of fact left for review and resolution by the Mayor and Board of Aldermen.

Mr. Gerald Minor
Chief of Police
Post Office Box 767
Baldwin, LA 70514

Date Received:
Date Released: January 26, 2006

KERRY L. KILPATRICK
ASSISTANT ATTORNEY GENERAL