Could a Louisiana district court clerk borrow money through a parish or an intergovernmental agreement?

Plain-English summary

Jefferson Parish's clerk of court asked whether a district court clerk could borrow funds, whether the parish could borrow and advance the proceeds, or whether an intergovernmental agreement could have the parish borrow while the clerk repaid it. In this 2006 opinion, the Attorney General concluded that clerks of court lacked authority to incur debt. Neither the constitution nor the statutes governing their office granted that power.

The AG rejected the proposed Local Services Law arrangement because obligating the clerk to repay a parish loan would effectively make the clerk a debtor. It also described the parish as effectively guaranteeing the clerk's loan, contrary to the cited constitutional ban. The opinion observed that parishes themselves could incur debt and had discretionary authority to advance or supplement the clerk's salary fund, but declined to decide whether this parish could borrow and then advance funds: the proposed use of loan proceeds depended on facts it would not investigate.

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

Did a district court clerk have independent power to take out a loan?

The AG said no. It found no constitutional or statutory grant authorizing district court clerks to incur debt.

Could a Local Services Law agreement have the parish borrow money that the clerk repaid?

No. The AG said the agreement would make the clerk incur debt despite the lack of borrowing authority. It also viewed the parish as effectively guaranteeing the clerk's loan.

Did the opinion approve the parish borrowing and advancing the money without clerk repayment?

No. Although the AG noted parish borrowing and discretionary funding powers, it treated the proposed use of parish loan proceeds as a factual question and declined to decide it.

Did the Governor's emergency declaration change the clerk's borrowing authority?

The opinion identified no such effect. The AG said it was unaware of any effect of the declaration on the clerk's ability to incur debt.

Background and statutory framework

The opinion treated clerks' powers as dependent on an express constitutional or statutory grant. It identified the clerk-of-court statutes, parish debt authority, and salary-fund provisions, then distinguished those from a power for the clerk to borrow. The Local Services Law did not fill that gap, and the opinion separately invoked the Louisiana Constitution's restriction on a public body's guarantee of another's loan. The AG suggested a legislative solution.

Citations

• La. Constitution Article V, Section 28 (clerk's office and powers provided by law).
• Article VII, Section 14(A) of the La. Constitution (guarantee restriction discussed by the AG).
• R.S. 13:786 and R.S. 13:787 (clerk salary fund provisions identified in the syllabus).
• La.R.S. 33:1321 et seq. (Local Services Law).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/05-0417

Original opinion text

January 24, 2006
Opinion Number 05-0417

10 Clerk of Court – Compensation and fees; Powers and Duties, General
Mr. Jon A. Gegenheimer
La. Const. Art. V, Section 28
Clerk of Court
La. Const. Art. VII, Section 14
Parish of Jefferson
La. R.S. 33:1321, et seq.
P.O. Box 10
R.S.13:750 et seq., R.S.13:784, R.S.13:786, R.S. 13:787
Gretna, LA 70054-0010
Clerk of district court does not have authority to incur debt.

Dear Mr. Gegenheimer:

We have received your request for an opinion regarding the authority of a clerk of court to borrow funds. In summary, you ask whether clerks of district courts have authority to incur debt; and if not, whether the parish may borrow funds and then advance those funds to the clerk; or whether the parish and the clerk can enter into an inter- governmental agreement pursuant to the Local Services Law,1 whereby the parish would borrow funds on behalf of the clerk, and the clerk would be obligated to repay them. In short, clerks of court do not have authority to incur debt, and the Local Services Law can not provide this authority.

La. Constitution Article V, Section 28 provides for the election of a clerk of the district court in each parish with duties and powers as provided by law. Clerks have no inherent powers. They derive their authority and powers entirely from statutory or constitutional grants. Their statutory duties and powers can be found in R.S. 13:750 et seq. No provisions in either the constitution or the revised statutes authorize clerks to incur debt.2

You question of the parish’s ability to borrow funds and then advance the funds to the clerk is a question of fact. It is the policy of this office not to seek out facts or issue opinions on questions of fact. We note, however, that parish governing authorities are authorized to incur debt.3 They also have discretionary authority to advance funds to, and/or supplement funds in the clerk’s salary fund pursuant to R.S. 13:786 and 123:787. We cannot speculate about the parish’s discretionary use of proceeds from loans.

We do not believe the local services law4 can be used to authorize a clerk to incur debt; and that is what would happen if, pursuant to an intergovernmental agreement, the

1
La.R.S. 33:1321 et seq.
2
See Attorney General Opinion Nos. 81-1069 and 80-916. 3 La. Const. Art VI, Sec. 33 4 La.R.S. 33:1321 et seq.

Page 2

Opinion Number 05-0417
Mr. Jon A. Gegenheimer
Clerk of Court
Parish of Jefferson
Page -2-

parish borrowed money on behalf of the clerk, and the clerk was obligated to repay it. Moreover, in effect the parish would be guaranteeing the clerk’s loan, which is prohibited by Article VII, Section 14(A) of the La. Constitution.

Finally, we are unaware of any affect of the Governor’s declaration of emergency on the clerk’s ability, or lack thereof, to incur debt. We suggest you seek a legislative solution to this issue.

We trust this adequately responds to your request. Please contact our office if you have any further questions.

Yours very truly,

CHARLES C. FOTI, JR.
Attorney General

BY: _________
DENISE B. FITZGERALD
Assistant Attorney General

CCF, jr./DBF/dam

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Opinion Number 05-0417
Syllabus

10 Clerk of Court – Compensation and fees; Powers and Duties, General La. Const. Art. V, Section 28 La. Const. Art. VII, Section 14 La. R.S. 33:1321, et seq. R.S. 13:750 et seq.; R. S. 13:784, R.S. 13:786, R.S. 13:787

Clerk of district court does not have authority to incur debt.

Mr. Jon A. Gegenheimer
Clerk of Court
Parish of Jefferson
P.O. Box 10
Gretna, LA 70054-0010

Date Received:

Date Released: January 24, 2006

Denise B. Fitzgerald
Assistant Attorney General