Could a Louisiana village appoint its own mayor or alderman to a parish fire district board?

Plain-English summary

In 2015, the Louisiana Attorney General concluded that the Village of Atlanta's governing authority could not appoint its own mayor or an alderman to the Winn Parish Fire District No. 3 Board of Commissioners. The mayor and aldermen were part of the appointing authority for the village's seat, and the dual-officeholding rule barred an official from holding one office while having power to appoint the holder of the other. The AG said this provision did not bar the parish or another municipality from making that appointment. The opinion expressly left government ethics questions to the Louisiana State Board of Ethics.

Currency note

This opinion was issued in 2015. 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

Q: Could Atlanta's board appoint one of its aldermen to the fire district board? A: The AG said no. The mayor and aldermen together were the village's appointing authority for its seat, so an alderman appointed by that governing authority would hold incompatible offices under La. R.S. 42:64(A)(1).

Q: Could the village appoint its mayor instead?
A: The AG reached the same answer for the mayor because the mayor was also part of the village governing authority that appointed the board member.

Q: Was a parish appointment of an Atlanta official barred by the same provision? A: The AG said La. R.S. 42:64(A)(1) did not prohibit the parish governing authority or another municipality from appointing Atlanta's mayor or an alderman to the fire district board.

Q: Did the opinion decide whether ethics rules allowed either appointment? A: No. The AG limited its answer to dual-officeholding law and said questions under the government ethics code belonged to the Louisiana State Board of Ethics.

Background and statutory framework

The opinion classified the mayor and aldermen as elective officials and the fire district board seat as an appointive office. La. R.S. 40:1496(B)(4) supplied the appointment scheme, and La. R.S. 33:362 made both mayor and aldermen part of the village governing authority. The AG applied the incompatibility rule in La. R.S. 42:64(A)(1) to appointments by that same authority.

Citations and references

• La. R.S. 42:64(A)(1), incompatible offices where one officeholder appoints the other.
• La. R.S. 40:1496(B)(4), appointment of fire district commissioners.
• La. R.S. 33:362, village governing authority.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/14-0189

Original opinion text

~tau of 1fiouisiana
DEPARTMENT OF JUSTICE
P.O. BOX 94005
BATON ROUGE
JAMES D. "BUDDY" CALDWEll
70804-9005
ATTORNEY GENERAL

March 26, 2015
OPINION 14-0189

76 Dual Officeholding
Mr. Randall T. Hayes
Alderman
La. R.S. 42:61 orsoq.
Village of Atlanta
The provisions of the Dual Officeholding and Dual Employment Law
220 Teal Street
prohibit the governing authority of the Village of Atlanta from
appointing the Mayor or a member of the Board of Aldermen to the
Atlanta LA 71404
Winn Parish Fire District NO.3 Board of Commissioners.

Dear Mr. Hayes:

Our office received your request for an opinion regarding whether the governing authority of the Village of Atlanta may appoint the Mayor or a member of the Board of Aldermen to the Winn Parish Fire District NO.3 Board of Commissioners.

The provisions of the Dual Officeholding and Employment Law, found at La. RS. 42:61 et seq., govern questions concerning the ability to hold two or more public offices and/or positions simultaneously. Classifying the correct nature of the positions held is essential for the purposes of applying the dual officeholding provisions.

The Village of Atlanta is governed by the Lawrason Act, La. RS. 33:1 et seq. Both the Mayor and Aldermen in a Lawrason Act form of government hold "elective office" for purposes of the dual officeholding taws.'

Membership on the Winn Parish Fire District No. 3 Board of Commissioners is an "appointive office" for purposes of the dual officeholding laws.2

La. RS. 40:1496(B)(4) provides for the appointment of members to the Winn Parish Fire District NO.3 Board of Commissioners, and it states, in pertinent part:

r "Elective office" means any position which is established or authorized by the constitution or laws of this state or by the charter or ordinances of any political subdivision thereof, which is not a political party office, and which is filled by vote ot. the citizens for this state or of a political subdivision thereof. La. R.S.
42:62(1). '. . " .
2 "Appointive office" means any office in any branch of government or other position on an agency board, or commission, or any executive office of any agency, board, commission or department which is specifically established or specifically authorized by the' constitution or iaws of this state or by the charter or ordinances of any political subdivision thereof and which is filled by appointment of election by an elected or appointedpublic official or by a governmental body composed of such officials of this state or of a political subdivision thereof. La. R.S. 42:62(2). .

Page 2

OPINION 14-0189
Randall T. Hayes
Page 2

In any case where three or more municipalities are included within the boundaries of a district lying within a single parish, the parish governing authority shall appoint two members and the government authority of each municipality shall appoint one member notwithstanding the provisions of Subsection A herein. The members so appointed shall elect the chairman of the board.

Under the Lawrason Act, both the Mayor and the Board of Aldermen are considered to be the governing authority of the Village of Atlanta. See La. R.S. 33:362. Therefore, both the Mayor and the Board of Aldermen would be the appointing authority for the Village of Atlanta's member of the Winn Parish Fire District. No. 3 Board of Commissioners.

La. R.S. 42:64 sets forth incompatible offices under the dual officeholding laws and expressly prohibits dual officeholding or employment where the incumbent of one office appoints the incumbent in another office. La. R.S. 42:64(A)(1) provides, in pertinent part, as follows:

The incumbent of one of the offices, whether or not in conjunction with fellow officers, or employment has the power to appoint or remove the incumbent of the other, except that local governmental subdivisions may appoint members of the governing body to boards and commissions created by them and over which they exercise general powers as provided in Article VI, Section 15 of the Constitution of Louisiana.....

Based on the applicable provisions of law and the information you have provided, it is the opinion of this office that the governing authority of the Village of Atlanta is prohibited from appointing the Mayor or a member of the Board of Aldermen to the Winn Parish Fire District No.3 Board of Commissioners pursuant to La. R.S. 42:64(A)(1).

However, La. R.S. 42:64(A)(1) does not prohibit the parish governing authority or the governing authority of another municipality from appointing the Mayor or a member of the Board of Alderman of the Village of Atlanta to the Winn Parish Fire District NO.3 Board of Commissioners See La. Atty. Gen. Op. Nos. 04-0074, 02-0017 and 00-105.

Please note that our expressed opinion relative to state law is limited to an examination of the dual officeholding provisions. Further, it does not address the potential applicability of the provisions of the Louisiana Code of Governmental Ethics, La. R.S. 42:1111 et seq. Advisory rulings addressing questions under the Ethics Code are within

Page 3

OPINION 14-0189
Randall T. Hayes
Page 3

the jurisdiction of the Louisiana State Board of Ethics. The Board may be contacted at the following address: P.O. Box 4368, Baton Rouge. LA 70821, phone: 225-219-5600.

We hope that this opinion adequately addresses 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:f/V)~Q~
Madeline S. Carbonette
Assistant Attorney General

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