Could Harahan's mayor require delinquent-tax collection, remove the clerk, and temporarily reassign her duties?

Plain-English summary

Harahan's mayor asked about the city clerk and tax collector after a legislative audit found that the city had failed to seize, advertise, and sell property for delinquent taxes. In January 2016, the Attorney General said the tax-sale command was mandatory, so the clerk and tax collector had to follow it. A city ordinance or resolution was unnecessary, although the opinion also pointed to the notice requirements before collection could proceed.

The AG answered the mayor's personnel questions separately. The clerk would remain in office unless the city council approved the mayor's removal recommendation, subject to the statutory tie-vote rule. The opinion said an employer could place an employee on unpaid family and medical leave, even over objection, if a serious health condition prevented performance of an essential job function; it declined to decide whether the clerk met that factual condition. During temporary leave, the mayor could assign the clerk's duties to another city officer or employee without council approval.

Currency note

This opinion was issued in 2016. 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 clerk refuse to follow the delinquent-tax sale statute?

The AG said no. It read the statute's “shall” language as mandatory, while noting that tax-delinquency notice requirements still applied.

Did the council have to pass an ordinance before tax collection began?

No. The opinion said state law already required the clerk and tax collector to act; it did not require a new local ordinance or resolution.

Could the mayor remove the clerk without the council?

The AG said removal required council approval of the mayor's recommendation. It quoted the statutory exception under which the mayor's recommendation prevails in a tie vote.

Could the mayor shift the clerk's duties during temporary leave?

The AG said the mayor could temporarily assign those duties to another city officer or employee without council approval. It distinguished a temporary absence from a permanent vacancy.

Did the AG decide whether this clerk qualified for involuntary medical leave?

No. It described the condition for forced unpaid leave but said whether an employee met that condition was a factual determination outside the opinion.

Background and statutory framework

The opinion addressed five questions concerning delinquent-tax sales, council approval, removal, family and medical leave, and temporary reassignment. It applied the state tax-sale command and notice provision, the Lawrason Act's allocation of mayor and council powers, and the federal leave authorities cited in the opinion.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/15-0168

Original opinion text

~tat£ of 1liouisiana
DEPARTMENT OF JUSTICE
P.O. BOX 94005
BATON ROUGE

JAMES D. "BUDDY" CALDWELL
70804-9005
AITORNEY GENERAL
January 8,2016
OPINION 15-0168
77 - OFFICERS - Local & Municipal
159 - TAXATION

La. R.S. 33:404
Tina Miceli
La. R.S. 47:2154
Mayor
La. R.S. 47:2154{A) is mandatory and no discretion is
City of Harahan
allowed. No resolution or ordinance is necessary to require a
6437 Jefferson Highway
City ClerkfTax Collector to follow this law. The municipal City
ClerkfTax Collector continues to hold her job until the
Harahan, LA 70123
Harahan City Council approves of her removal upon the
Mayor's recommendation. It is permissible for an employer to place their employee on unpaid FMLA leave, even jf the employee objects. Without a law to the contrary, the Mayor of Harahan may temporarily assign the duties of the City Clerk/Tax Collector to another City officer or employee.
Such an action is under the authority of the Mayor by statute and does not require Council approval.
Dear Mayor Miceli:

Your opinion request submitted to our office has been assigned to me for research and reply. Your request is based on issues arising in the City of Harahan ("City"), which is governed by the Lawrason Act in La. RS. 33:321 et seq. Your letter indicates that the City's clerk also serves as the City's tax collector, which you refer to as the City ClerkfTax Collector. Many of your questions are based on the Legislative Auditor's 2015 Investigative Audit, which found that "[a]lthough required by state law, the City did not seize, advertise, and sell properties on which delinquent property taxes were due.'" Each of your questions will be answered in turn.

1. Maya municipal City Clerk/Tax Collector refuse to follow La. R.S. 47:2154(A)?

La. RS. 47:2154(A) provides, "[t]he tax collector shall seize, advertise, and sell tax sale title to the property or an undivided interest therein upon which delinquent taxes are due, on or before May first of the year following the year in which the. taxes were assessed, or as soon thereafter as possible."

La. RS. 1:3 provides that, "the word 'shall' is mandatory, and the word 'may' is permissive." When laws are mandatory, no discretion is allowed. Thus, the law is clear that the City, through the City ClerkfTax Collector, must comply with La. RS.
47:2154(A).

1 Louisiana Legislative Auditor, Cily of Harahan Investigalive Audit, Letter to City dated September 9, 2015, p.1. http://app.lla.slate.la.us/PublicReports.nsf/DAC82750C947CEB886257EBB0076ABC6/$FILE/0000A57D. pdf.

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Opinion 15-0168
Mayor Tina Miceli
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2. Does a municipal City Clerk/Tax Collector require resolution or an ordinance to
   carry out La. R.S. 47:2154(A)?

La. R.S. 47:2154 is a state statute, and as noted above, mandatory for City ClerkfTax Collector to follow. This statute does not require the Council to adopt a resolution or ordinance. However, we note that the City ClerkfTax Collector must follow out the notice requirements discussed in La. R.S. 47:2153 before he or she could proceed with pursuing any recovery available to the City under La. 47:2154. No resolution or ordinance is necessary to require a City ClerkfTax Collector to follow this law. However, we note that regulations and policies may be helpful in determining the process for the City's collection of delinquent taxes in the future, and you provide no information as to whether notice of delinquency has been provided to property owners.

3. If the Mayor recommends the City Clerk/Tax Collector be removed from office,
   but the council votes to keep her, what is the Mayor's recourse?

La. R.S. 33:404(A)(3) states that the, "appointment or removal of a nonelected chief of police, the municipal clerk, the municipal attorney, or any department head shall be subject to approval by the board of aldermen, except that in the case of a tie vote, the recommendation of the mayor shall prevail." Therefore, the board of aldermen (in this case, the Harahan City Council), must approve of the removal of the City ClerkfTax Collector from office. In accord is La. Atty. Gen. Op. No. 94-385. Therefore, the municipal City ClerkfTax Collector continues to hold her job unless the Harahan City Council approves of her removal upon the Mayor's recommendation.

4. May the Mayor place the City Clerk/Town Collector on leave under the Family
   and Medical Leave Act (UFMLA") after learning of the employee's health issues even if the City Clerk/Tax Collector objects?

The FMLA allows eligible employees to take twelve workweeks of leave during any twelve month period for various reasons such as birth of a child or a serious health condition! According to 29 U.S.C.A. § 2616, it is "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter," which provides the general requirements for leave under the FMLA. Federal courts have addressed the issue of whether forced leave violates this provision.' In the Middle District of Louisiana, the court addressed this problem and found that an employee failed to state a cause of action against his employer for the employer forcing him to take FMLA unpaid leave."

, 29 U.S.CA § 2612.
3 In Sista v. CDC Ixis North America inc., 445 F.3d 161, 175 (2nd Cir. 2006), the court held, "[t]he FMLA says nothing about an employer's ability to 'force' an employee to take such leave, and such forced leave, by itself, does not violate any right provided by the FMLA," and it further noted, "[t]he FMLA does not create a right to be free from suspension with or without pay." 4 Moss v. Formosa Plastics Cotp., 99 F.Supp. 2d 737,741 (M.D. La. 2000).

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Opinion 15-0168
Mayor Tina Miceli
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Therefore, it is permissible for an employer to place their employee on unpaid FMLA leave, even if the employee objects, as long as the employee has a serious health condition that precludes her from performing an essential job function. Whether an employee meets the conditions authorized for involuntary leave is a factual determination that is inappropriate for our office to address.

However, we note that courts have said the employee could have a cause of action should the employee wish to take FMLA leave in the future and be unable to do so due to their previous forced leave."

5. If the City Clerk/Tax Collector is out on maternity leave, can the Mayor hire
   someone to perform her duties on an interim basis? Does this action require approval of the Council?

La. RS. 33:404(A)(1) provides that the Mayor has the authority:

To supervise and direct the administration and operation of all municipal departments, offices, and agencies, other than a police department with an elected chief of police, in conformity with ordinances adopted by the board of aldermen and with applicable provisions of state law; however, no such ordinance may limit the authority granted to the mayor by this Paragraph. All administrative staff shall be subordinate to the mayor.

Furthermore, La. RS. 33:404(A)(2) provides that the mayor has the duty, "[tjo delegate the performance of administrative duties to such municipal officers or employees as he deems necessary and advisable." Additionally, La. R.S. 33:404(A)(9) provides that the mayor has, "any other power" and may "perform any other duty as may be necessary or proper for the administration of municipal affairs not denied by law." While appointment of the clerk is subject to the approval of the council under La. RS. 33:404(A)(3), La. RS. 33:404(A)(2) clearly gives the mayor the authority to assign duties to employees as he deems necessary. The law does not specifically prohibit the assignment of the City Clerk/Tax Collector's duties on a temporary basis while the City ClerklTax Collector is on approved leave. While La. R.S. 33:381 (8) provides that the "clerk or chief of police may be a tax collector or assessor," it is silent as to the transfer of the City ClerklTax Collector's duties while the City ClerklTax Collector is temporarily unable to perform their duties due to a temporary absence.

La. RS. 33:381(8) does not mandate the tax collector be a clerk or chief of police, it simply provides that the clerk or chief of police "may" perform that duty. Our office has supported this position in the past, as we stated, "statutes authorizing the designation of a particular office of a municipality to collect and enforce taxes are permissive rather than mandatory." We also note that in La. Atty. Gen. Op. No. 93-208, we stated, "a sheriff and a municipality may enter into a cooperative endeavor agreement to provide that the sheriff will collect the municipal property tax." Therefore, the sheriff could

5 See Wysong v. Dow Chemical Co., 503 F.3d 441, 449 (6'h Cir. 2007). 6 La. Atty. Gen. Op. No. 93-20B.

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Mayor Tina Miceli
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temporarily collect the delinquent taxes while the City Clerk/Tax Collector is on temporary leave.

Without a law to the contrary, the Mayor of Harahan may temporarily assign the duties of the City ClerklTax Collector to another City officer or employee. La. R.S. 33:404 clearly allows for the mayor to assign duties to employees as necessary, and the temporary absence of the City ClerklTax Collector calls for the City to designate another employee to enact City ClerklTax Collector's duties. Such an action is under the authority of the Mayor by statute and does not require Council approval. This action is allowed because maternity leave and FMLA involve a temporary absence, not a permanent absence. We note further that FMLA leave on its own does not create a vacancy in the position of a municipal officer, as "it cannot be said that the office is vacated until such is declared by a court or other authorized official or governing body."?

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:~'~
J~Wale
Assistant Attorney General

JDC: JMW

7 Williamson v. Village of Baskin, (La.App. 2 Cir. 1976), 339 So.2d 474