Could East Baton Rouge extend BREC commissioners’ three-year terms to four years by changing its home rule plan?

Plain-English summary

East Baton Rouge's Metro-Council had adopted an ordinance proposing to lengthen appointed Recreation and Park Commission (BREC) terms from three to four years through a Plan of Government amendment. The AG said the Metro-Council could not make that change. La. R.S. 33:4570.1 set three-year terms, and the opinion traced that rule through the prior constitutional provisions carried forward by the 1974 Constitution.

The opinion recognized the home rule plan's protection, but said that protection did not allow a local amendment inconsistent with the governing constitutional and statutory provisions. Its answer concerned BREC commissioners' term length, not recreation board powers generally.

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

Could a local ballot amendment set four-year BREC terms?

The AG said no. The proposed local change conflicted with the state statute specifying three-year appointments for BREC commissioners.

Did East Baton Rouge's home rule status change the answer?

No. The opinion said the home rule plan remained subject to the state constitutional provision that preserved BREC's statutory framework.

Why did the AG discuss an older constitution?

It traced the Legislature's authority over BREC's composition to the 1921 Constitution, then explained that the 1974 Constitution continued the pertinent provision as statute. That history supported application of the three-year term in La. R.S. 33:4570.1.

Background and statutory framework

The local ordinance sought to change Section 11.02 of the Metro-Council's Plan of Government. The AG compared it with La. R.S. 33:4570.1 and the constitutional provisions preserving the commission's enabling legislation. It applied the limitation in La. Const. Art. 6 § 4 on inconsistent home rule powers.

Citations

• La. R.S. 33:4570.1 (three-year BREC commissioner terms).
• 1974 La. Const. Art. 14 § 16(A) (10) and La. Const. Art. 6 § 4 (continued statute and home rule limits).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/06-0139

Original opinion text

August 4, 2006
OPINION NUMBER 06-0139

71-1-A Municipalities – City Parish Charter 71-1-B Municipalities – Home Rule Charter 90-A Political Subdivisions – Officers, Agents & Employees
Mr. Murphy J. Foster, III
92-A-A Recreation – Parks, Playgrounds, Playground &
Recreational Boards, Youth Programs
Breazeale, Sachse & Wilson, L.L.P.
One American Place
La. R.S. 33:4570.1
23rd Floor
Amendment of the home rule charter to provide for four (4) year
Post Office Box 3197
term would conflict with state statute which provides for three
Baton Rouge, LA 70821-3197
(3) year terms.

Dear Mr. Foster:

As the attorney for the Recreation Park Commission for the Parish of East Baton Rouge (“BREC”), you have requested the opinion of this office on the constitutionality of a proposed amendment to the Metro-Council of the Parish of East Baton Rouge-City of Baton Rouge’s Plan of Government. Specifically, you asked if the Metro-Council’s recent adoption of Ordinance 13496, amending Section 11.02 to extend the term of BREC Commissioners from three (3) to four (4) years, is unconstitutional due to La. R.S. 33:4570.1, which states that BREC members shall be appointed by the Metro- Council “for terms of three years.” You further note that the Metro- Council intends to place the proposed amendment on its fall ballot.

Generally speaking, municipalities lack the authority to enact ordinances inconsistent with state law. Restivo v. City of Shreveport, 566 So.2d 669 (La. App. 2d Cir. 1990). However, the issue becomes more complex when home rule charters or plans of government are involved, as is the case in this instance.

BREC, one of the political subdivisions under the Metro-Council’s Plan of Government, is responsible for the park and recreation facilities in East Baton Rouge Parish. Recreation and Park Com’n. For Parish of East Baton Rouge v. C & S Development, 714 So.2d 706 (La. 7/8/98). Article 14 § 3(b) of the 1921 Constitution gave the Legislature the “full power and authority” to enact laws creating BREC and to provide the number and method of selecting persons comprising the political subdivision. In that regard, the Legislature enacted La. Act 246 in 1946, defining the powers, duties, and composition of BREC. Additionally, La. Act 387 was adopted on November 5, 1946 as

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Opinion No. 06-0139
Mr. Murphy J. Foster, III
Breazeale, Sachse & Wilson, L.L.P.
Page No. 2

an amendment to Article 14 § 3(b), and La. Act 626 amended the article once again on November 6, 1956.

Article 14 § 3(b) of the 1921 Constitution was subsequently repealed by La. Act 69 in 1975, but it was carried forward by virtue of 1974 La. Const. Art. 14 § 16(A) (10), which stated that Article 14 § 3(b) be “continued as statutes.” Pursuant to this Constitutional provision, BREC’s enabling legislation under La. R.S. 33:4570 and 33:4570.1 provided that BREC’s six (6) appointed Commissioners serve three (3) year terms. Thus, the term length of the Commission members was set forth in this statute as authorized by the 1974 Constitution and as originated in the 1921 Constitution.

Ordinance 13496, adopted by the Metro-Council on January 25, 2006, differs from the Constitutional provisions and La. R.S. 33:4570.1 in that it calls for the term length of BREC Commissioners to be extended from three (3) to four (4) year terms “unless provided otherwise by Plan of Government or state statute.” The City of Baton Rouge derives the authority to enact ordinances from the Louisiana Constitution. City of Baton Rouge v. Williams, 661 So.2d 445 (La. 10/16/95). However, in viewing the proposed ordinance, it is in conflict with the Louisiana Constitution of 1921 under Article 14 § 3(b) and more recently under the Louisiana Constitution of 1974 under Article 14 § 16(A) (10).

Although La. Const. Art. 6 § 4 of the 1974 Constitution recognizes and protects the unique nature of "home rule charters," such as the Plan of Government for East Baton Rouge Parish and the City of Baton Rouge, it states:

Every home rule charter or plan of government existing or adopted when this constitution is adopted shall remain in effect as may be amended, modified, or repealed as provided therein. Except as inconsistent with this constitution, each local governmental subdivision which has adopted such a home rule charter or plan of government shall retain the powers, functions, and duties in effect when this constitution is adopted. If its charter permits, each of them also shall have the right to powers and functions granted to other local governmental subdivisions.

The phrase “except as inconsistent with this constitution” requires that La. Const. Art. 14
§16(A) (10) take precedence over the Metro-Council’s proposed ordinance. Since the proposed ordinance will cause such an inconsistency between a statute and a local ordinance, the constitutional and statutory provisions control. (See La. Op. Atty. Gen., No. 92-764.)

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Opinion No. 06-0139
Mr. Murphy J. Foster, III
Breazeale, Sachse & Wilson, L.L.P.
Page No. 3

Therefore, it is our opinion that the Metro-Council may not revise its Home Rule Charter to extend the term lengths of the appointed BREC Commissioners from three (3) to four (4) years.

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

Yours very truly,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

By: _________
CHARLES H. BRAUD, JR.
Assistant Attorney General

CCF,Jr/CHB,Jr./trl/ard

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Opinion No. 06-0139
Mr. Murphy J. Foster, III
Breazeale, Sachse & Wilson, L.L.P.
Page No. 2

SYLLABUS

Opinion No. 06-0139

71-1-A Municipalities - City Parish Charter
71-1-B Municipalities - Home Rule Charter
90-A Political Subdivisions – Officers, Agents & Employees 92-A-A Recreational Boards, Youth Programs

La. R.S. 33:4570.1

Amendment of the home rule charter to provide for four (4) year term would conflict with state statute which provides for three (3) year terms.

DATE REQUESTED: 05/10/2006

DATE RELEASED: August 4, 2006

REQUESTED BY: Mr. Murphy Foster, III
Breazeale, Sachse & Wilson, L.L.P.

AUTHOR: CHARLES H. BRAUD
Assistant Attorney General