Could New Orleans choose a civil service commissioner after Loyola submitted its third nominee late?

Plain-English summary

In 2013, the Louisiana Attorney General concluded that the New Orleans City Council could consider two timely nominees from Loyola University for a civil service commission vacancy and also consider a third nominee submitted after the university's constitutional deadline. Because the council received all three names before its own deadline to make the appointment, the AG said it had to choose from Loyola's list rather than appoint someone else.

The opinion addressed a specific sequence: a commission member resigned, Loyola initially sent two names within thirty days, then sent the third before the council selected a replacement. The AG acknowledged that the constitution required three nominations and that it had found no Louisiana case or earlier opinion addressing this exact situation.

Currency note

This opinion was issued in 2013. 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 the council consider only the two timely nominees?

The AG said there was no prohibition on considering those two names, despite the constitutional direction to submit three.

Could it consider the third nominee even though that name arrived late?

Yes. The AG found no prohibition on considering a late third nominee received before the council made its choice.

Could the council appoint someone Loyola had not nominated?

No, under the facts presented. Because three nominees were in the council's possession before its appointment deadline, the AG said it should select one of them.

Background and statutory framework

The council asked how to fill a vacancy in Loyola University's seat on the New Orleans Civil Service Commission. La. Const. Art. X, § 4 required university presidents to submit three nominees within thirty days of a vacancy and provided for the municipal governing authority to appoint from the list. The AG applied that text to the late third name and the council's still-open appointment window.

Citations

• La. Const. Art. X, § 4 (civil service commission membership and appointment).
• La. R.S. 1:3 (mandatory meaning of "shall," noted in the opinion).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/13-0194

Original opinion text

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DEPARTMENT OF JUSTICE
P.O. BOX 94005
BATON ROUGE
70804-9005
JAMES D. "BUDDY" CALDWELL
ATTORNEY GENERAL

November 7,2013
OPINION 13-0194

9 - CIVIL SERVICE COMMISSION

La. Const. Art. X, § 4

Ms. Jacquelyn Brechtel Clarkson
The New Orleans City Council may consider two names submitted for
Council President
filling a vacancy on the Civil Service Commission by the president of
New Orleans City Council
Loyola University, despite the fact that the law requires three names
be submitted. Further, if the third name is submitted beyond the
City Hall, Suite 2W50
deadline established by La.Const. art. X, § 4, yet prior to the Council
1300 Perdido Street
making a decision, the Council may consider the third nominee.
Finally, since the Council has three names submitted by the president
New Orleans, LA 70112
of Loyola University in its possession prior to its deadline for naming
an individual to fill the vacancy, even if one name was submitted late, it is the opinion of this office that the Council may not select someone not on the list.
Dear Ms. Clarkson:

Our office received your request for an opinion submitted on behalf of the New Orleans City Cou ncil ("Council") relating to an appointment to the Civil Service Commission of the City of New Orleans. Your request states that on September 15, 2013, the appointee for Loyola University on the Civil Service Commission officially resigned. In accordance with Article X, Section 4 of the Louisiana Constitution, the president of Loyola University had thirty days to submit three nominations for filling the vacancy. On October 14,2013, you received a letter from the president of Loyola University providing two nominees for the vacancy. After you submitted your opinion request, you forwarded a subsequent correspondence to this office from the president of Loyola University, dated October 28, 2013, wherein he provided the Council with a third nominee to consider for the vacancy.1

In light of the above, you have requested an opinion from this office on the following questions: (1) whether the Council is permitted to consider only the two names submitted by Loyola University; (2) whether the Council may consider the third nominee despite the fact such name was submitted beyond the deadline established by the Louisiana Constitution; and (3) whether the Council may select someone not on the list submitted by Loyola University.

1 The President of Loyola University serves on the Civil Service Commission himself as the appointee for Tulane University. His letters to the Council indicate that since he serves on the Civil Service Commission, in order to avoid any perception of a conflict of interest in the nomination process, he requested the presidents of Tulane, Xavier, and Dillard to provide him with nominees to submit to the Council on behalf of Loyola University. The letters indicate that the first two names were provided by Tulane and Dillard University, and the third name was provided in the second letter from Xavier University.

Page 2

OPINION 13·0194
Ms. Jacquelyn Brechtel Clarkson
Page 2

With respect to filling a vacancy on the Civil Service Commission, Article X, Section 4 of the Louisiana Constitution provides, in pertinent part:

Section 4.(A) Creation; Membership; Domicile. A city civil service commission shall exist in each city having a population exceeding four hundred thousand.· The domicile of each commission shall be in the city it serves. Each commission shall be composed of five members, who are electors of the city, three of whom shall constitute a quorum. The members. shall serve overlapping terms of six years as hereinafter provided.

(8) New Orleans; Nomination and Appointment. In New Orleans, the presidents of Dillard University, Loyola University, Tulane University of Louisiana, and Xavier University, after giving consideration to representation of all groups, each shall nominate three persons. In addition, the employees in the classified service of the city of New Orleans shall nominate three persons in the classified service of the city of New Orleans by means of an election called for that purpose. The municipal governing authority shall appoint one member of the commission from the three persons nominated by each nominating authority.

(D) Vacancies. A vacancy shall be filled by appointment in accordance with the procedure for the original appointment and from the same source.
Within thirty days after a vacancy occurs, in a seat held by a university nominee, the university president concerned shall submit the required nominations. Within sixty days after this amendment is ratified by the electors of the state of Louisiana, and when a vacancy occurs in a seat held by a nominee nominated by employees in the classified service, there shall be held an election at which the employees in the classified service shall nominate three persons in accordance with this Section; Within thirty days thereafter, the municipal governing authority shall make the appointment. If the municipal governing authority fails to make the appointment within the thirty days, the nominee whose name is first on the list of nominees automatically shall become a member of the commission.
If one of the nominating authorities fails to submit nominees in the time required, or if one of the named institutions ceases to exist, the municipal governing authority shall make the appointment.

As the above makes clear, when there is a vacancy, it shall be filled by appointment in accordance with the procedure for the original appointment and from the same source. As previously stated, the member that resigned was Loyola University's appointee, thus; the president for Loyola University is required to submit the required nominations within thirty days. Then, the governing authority, which is the Council in this scenario, has

Page 3

OPINION 13·0194
Ms. Jacquelyn Brechtel Clarkson
Page 3

thirty days to make the appointment. If a nominating authority fails to submit nominees in the time required, the municipal governing authority has a duty to make the appointment.

Your first question asks whether the Council is permitted to consider only the two names submitted by Loyola University. Despite the fact that the language indicates that the university president shall appoint three members, and that shall connotes a mandatory, rather than permissive term,2 there does not appear to be any prohibition from the Council considering the two names submitted. Your second question asks whether the Council may consider the third nominee, despite the' fact such name was submitted beyond the deadline established by La.Const. art. X, § 4. Again, there appears to be no prohibition 'from the Council considering the third nominee submitted, despite the fact that it was submitted beyond the deadline. Your last question asks whether the Council may select someone that was not on the list submitted by Loyola University. Recognizing that we were unable to find any Louisiana case law or opinions addressing the scenario presented, we consider that the Council received three names from Loyola University prior to the date in which the Council was required to make a determination as to who should fill the vacant seat, even if the third name was received past the time specified by the Constitution. Therefore, since the Council has three names submitted by the president of Loyola University in its possession prior to its deadline for naming an individua.1 to fill the vacancy, it is the opinion of this office that the Council may not select someone not on the list, but should rather choose from the three names submitted for consideration.

We hope that this opinion has adequately addressed the legal issues you have raised. If our office can be of any further assistance, please do not hesitate to contact us.

With best regards,

JAMES D. "BUDDY" CALDWELL
ATTORNEY GENERAL

BY: ""'::OO'O-=::;;;........&..::....=..~~~~----.l!:"""""'-~--

Emalie A. 80 ce
Assistant Attorney

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2 See La. R.S. 1:3.