Could Marksville's mayor promote a patrol officer to detective after a tied council vote?

Plain-English summary

Marksville's mayor promoted a patrol officer to a vacant detective position after a council vote. Three aldermen opposed the move; two aldermen and the mayor supported it. The mayor argued that his recommendation prevailed after the resulting tie. A council member asked whether the promotion and vote were valid.

The attorney general said the promotion could stand, but the vote did not authorize it. Marksville's special charter made the mayor a voting member of its governing board, with one vote like the aldermen. It did not give him a second, tie-breaking vote. The opinion relied on the Louisiana appeals court's reading of that charter in Strawitz v. Town of Marksville.

On the facts presented, a detective was not shown to be a department head or city officer whose appointment needed board approval. The attorney general read La. R.S. 33:404(A)(3) as giving the mayor power to appoint police personnel, including an existing officer to a new detective position. The board vote was unnecessary, and the opinion said no further action was needed.

What this means for you

Marksville's mayor

The opinion recognized one vote for the mayor when he sat with the aldermen, without a separate deciding vote after a tie. It located authority for this detective appointment in the mayor's statutory appointment power.

Aldermen and council members

The opinion said the promotion should not have been placed before the full council on the facts supplied. It found no indication that the detective job was a department-head or city-officer position requiring board approval.

Police department personnel

For this patrol-to-detective move, the opinion treated a promotion as an appointment to a new position under La. R.S. 33:404(A)(3). Its conclusion depended on the nature of the detective role described in the request.

Common questions

Q: Did the mayor cast a valid vote on the detective promotion?
A: Yes, as a member of Marksville's governing board. The opinion said that vote counted once, like each alderman's vote, and did not also serve as a tie-breaker.

Q: Could the detective promotion still stand after the tied vote?
A: Yes. The attorney general said the mayor had appointment authority over this police position, so the board vote was unnecessary and no further action was needed.

Q: Was a detective treated as the head of the police department?
A: Not on the facts supplied. The opinion said a detective could conceivably be a department head, but the request gave little information and showed no supervisory or department-wide duties for this position.

Q: Does the mayor's appointment power include moving an existing officer into a new role?
A: The opinion said yes for this patrol officer's appointment to detective. It rejected a reading that limited the power to hiring someone new to the department.

Background and statutory framework

Marksville has a special legislative charter. The opinion cited Strawitz v. Town of Marksville for the mayor's role as a voting board member and the absence of a charter tie-breaking power. It also looked to La. R.S. 33:481 and the Lawrason Act where the charter was silent about appointing police personnel.

La. R.S. 33:404(A)(3) gave the mayor power to appoint municipal employees, subject to specified approval requirements for positions such as a department head. The opinion found no fact showing that this detective position fell under those approval requirements. It therefore concluded the mayor's appointment, rather than the council vote, made the promotion valid.

Citations and references

• La. R.S. 33:404(A)(3) (mayoral appointment power and specified approvals)
• La. R.S. 33:481 (use of Lawrason Act for special-charter municipality)
• Strawitz v. Town of Marksville, 77 So.2d 597, 601-02 (La. App. 2 Cir. 1955) (mayor's board vote)

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/24-0006

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

STATE OF LOUISIANA
DEPARTMENT 01’ JUSTICE
OvvE OF TFIE ATTORNEY GENERAL
P.O. Box 94005
BATON Rou;E, LA
70804-9005

Liz MURRILL
ATTORNEY GENERAL

June 6, 2024
OPINION 24-0006

71-1 Municipalities — Special Charters
Honorable Torrick Friels La. R.S. 33404(A)(3) La. R.S. 33481
Councilman, District 3
City of Marksville
The decision by the Mayor to promote a patrol officer of the
•1 •
Marksville Police Department to a vacant position in the detective
601 Tina St.
division was valid under the Mayors authority to “appoint” police
personnel. The Board ofAldermenorthe Councilconsisting of both Marksville LA 71 351
, the Board of Aldermen and the Mayor has no authority to hire or assign such personnel.

Dear Councilman Friels,

This office received your request for an Attorney General’s Opinion regarding the validity of a promotion of a police officer from a position in the patrol division of the Marksville Police Department to a vacant position in the detective division. According to your request, the issue was presented to the entire council. Three aldermen voted against the promotion, while two aldermen and the Mayor voted in favor of it. The Mayor then contended that his recommendation should control in accordance with the second sentence of La. R.S. 33:404(A)(3), essentially casting both the tying and the tie-breaking votes.

You raised several questions concerning the Mayor’s actions. Specifically, you asked:
(1 ) whether the detective position can be considered a “department head” within the meaning of La. R.S. 33:404(A)(3);

(2) whether the Mayor’s vote is valid when no tie existed until he included his vote;

(3) if the Mayor’s vote is valid in this case, how is the tie broken, or is the motion dead; and

(4) what action legally needs to be taken?
For the following reasons, we find the promotion was improperly presented to the entire council; thus, the promotion may stand, but not for the reasons relied on by the Mayor.

(1) Whether the detective position can be considered a “department head”?
The request provides little to no information on the nature of the detective position. A department head ordinarily is a supervisor of others. The job of detective in a police department ordinarily does not require one to supervise others or to perform administrative duties related to the running of an entire department. A detective could be’

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OPINION 24-0006
Councilman Torrick Friels
Page 2

a department head, but absent other information, it is the opinion of our office that these are different positions with different duties.
(2) Whether the Mayor’s vote was valid when no tie existed until he voted?
The Mayor has dual roles in the City of Marksville (the City). Per the City Charter (the Charter), the F\’layor sits with the Aldermen as a member of the Board that governs the City. But he also has additional authority and duties, as explained further below. The City of Marksville (the City) is governed by a special legislative charter, originally adopted in I 843 and amended at various times. Section one of the I 855 amendment to the Charter provides, in pertinent part:
Be it enacted by the Senate and House of Representatives of the State of Louisiana in General Assembly convened, That the Fourth section of the Act entitled “[A]n Act to incorporate the town of Marksville, in the Parish of Avoyelles,” be and the same is hereby amended and re-enacted so as to read thus: That the said Mayor and Aldermen shall constitute a Board for the government of said town, and they shall have and possess the following powers, to-wit: . FIFTH, they shall have power to appoint a Treasurer, . .

Secretary and Collector, and such other officers as may be necessary for the administration of said town of Marksville, and to require such bond and security for the faithful performance of their duties as the said Mayor and Aldermen by their by-laws may prescribe . ...

In interpreting this Charter, the Second Circuit Court of Appeal found that the legislature intended to, and did, vestthe Mayor ofthe City with the authority to sit as a voting member of the governing board of the City. Strawitz v. Town of Marksville, 77 So.2d 597, 601-02 (La. App. 2 Cir. 1955). However, the court concluded thatthere was nothing in the Charter that authorized the Mayor to cast the additional and deciding vote in the event of a tie because that power must be specifically and directly set forth in order to be effective.1 Id. at 602. In making these determinations, the court stated that it “must look exclusively to the provisions of whatever legislative enactment created the Town of Marksville.” Id. at 601 Because the Charter does not grant the Mayor any tie-breaking power, it is the .

opinion of this office that the Mayor has no tie breaking authority when he sits as a member of the Board.
(3) If the Mayor’s vote is valid, how is the tie broken or is the Motion dead?
The request assumes the motion to approve the promotion was properly placed before the Board. As discussed below, it is unclear whether it was. However, as previously stated, the Mayor has the same vote as any other member of the Board. Therefore the

1Having found that no specific provision authorized the Mayor to provide the tie breaking vote, the court determined that, because the vote failed to receive a majority, it was properly rejected. Id.

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OPINION 24-0006
Councilman Torrick Friels
Page 3

Mayor’s vote is a valid vote, but it counts no differently than any other member of the Board. The Mayor’s argument that La. R.S. 33:404(A)(3) grants him authority to “break the tie” is incorrect. However, the Mayor is correct that the statute grants him authority to appoint certain personnel. The passage of La. R.S. 33:481 in 201 0 and the silence of the Charter on this issue require us to look to the Lawrason Act to determine who among the City’s leadership has the authority to hire police personnel in a municipality like the City with an appointed chief of police. La. R.S. 33:404(A)(3) provides that the Mayor has the following powers, duties, and responsibilities:
Subject to applicable state law, ordinances, and civil service rules and regulations, to appoint and remove municipal employees, other than the employees of a police department with an elected chief of police. However, 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. Furthermore, selection or removal of any person engaged by a municipality to conduct an examination, review, compilation, or audit of its books and accounts pursuant to R.S. 24:513 shall be subject to approval by the board of aldermen of that municipality.

The power to “appoint” police department employees in a Lawrason Act municipality with an appointed chief of police is vested with the Mayor, pursuant to the first sentence of La. R.S. 33:404(A)(3). This power is not restricted by statute to the initial hiring and may reasonably be interpreted as including the power to appoint an existing officer to a new position, i.e., detective. While this is characterized as a “promotion” forthat officer, it would be illogical to read the statute as permitting the Mayor only to “appoint” someone who had never before been hired at all but not “appoint” someone from within the ranks of the police department. Thus, the promotion of the officer was an appointment decision which belongs to the Mayor.2 (4) What further action needs to be taken?
Because we find the Mayor has the power to “appoint” the officer to the position of detective, we find no further action needs to be taken.

2 We further note that there is nothing in the facts presented in the opinion request that indicates that a police detective is an officer of the City such that his hiring would go before the entire council, as required by the Charter. Moreover, there is nothing that would indicate that this detective position was a “department head” within the meaning of the second sentence of La. R.S. 33:404(A)(3) such that the hiring decision of the Mayor would need to be approved by the Board of Aldermen.

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OPINION 24-0006
Councilman Torrick Friels
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Conclusion
Accordingly, this office is of the opinion that the decision by the Mayor to promote an officer of the Police Department from a patrol position to a vacant detective position was valid as an “appointment” pursuant to La. R.S. 33:404(A)(3), but not due to his “breaking the tie” because he has no express tie-breaking power. The Board vote, therefore, was unnecessary in the first instance and no further action is necessary. We trust this adequately responds to your request. However, if our office can be of further assistance, please do not hesitate to contact us.

With best regards,

LIZ MURRILL
ATTORNEY GENERAL

BY:
Chimène St. Amant
Assistant Attorney General

LM:CS