Opinion Number

Dear Mr. Landry:

We are in receipt of your request for an opinion of the Attorney General. Succinctly, your questions are relative to powers of the Board of Aldermen for the Town of Broussard to hire, fire and regulate town employees. The validity of a proposed ordinance is questioned which would create a three-man committee with the power to hire, fire, investigate and discipline all employees of the town, and in the alternative, a four-man committee consisting of three aldermen and the Mayor with this power. Additionally, the validity of an ordinance is questioned wherein the four-man committee, while not having the power to hire and fire, could suspend, reprimand, discipline and investigate to get all employees working together. The committees would be construed as acting with the full authority of the full Council and have sole discretion in their action.

In contrast to the previously enumerated municipal powers that existed under R.S. 33:401-403, R.S. 33:361 now contemplates a municipality as a more or less autonomous entity. Nevertheless, the Legislature has still designated the exercise of certain powers in a Lawrason Act community as Broussard. Included in this designation is the directive that the mayor is the chief executive officer with his duties being set forth in R.S.33:404. Among the responsibilities of day-to-day administration, he has the authority, subject to state law, ordinance, and civil service rules, "to appoint and remove municipal employees". Atty. Gen. Op. Nos. 88-33, 86-705. While the aldermen can promulgate the policies and procedures for the hiring and firing, such as qualifications, limit the number, office hours (Atty. Gen. Op. Nos. 87-477, 86-325), they do not have the authority to do the hiring or firing.

In the case of Bourgere v. Anzelmo, 517 So.2d 1121 (La.App. 1987) the Court ruled that ordinances placing constraints on the hiring, firing and suspension of non-civil service municipal employees by the Mayor was in conflict with the statute giving the Mayor the administrative responsibilities for administering the municipality. It was invalid to give the aldermen a final veto or assent. The Court held that the Mayor has the right to hire and fire, subject only to the "policies and procedures" promulgated by the board of aldermen. As stated by the Court, "This duty to enact policies and procedures does not extend to the right to make individual decisions." Additionally, the Court concluded that the Mayor's power to hire and fire encompasses the power to suspend, and the ordinance requiring confirmation by the Board of Aldermen for suspension was invalid.

Based upon this reasoning, it must be concluded that the proposed ordinances giving a committee the power to hire, fire or suspend, or even participate jointly with the Mayor, is invalid inasmuch as this is a function of the Mayor under R.S. 33:404(A)(3). Not only do we find the proposed ordinances unacceptable, it is impossible to draft an ordinance which would give the Board of Aldermen the authority to hire, fire or suspend because of the statutory restrictions that give this authority to mayors.

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

Sincerely yours,

WILLIAM J. GUSTE, JR. Attorney General

By: _____________________________ BARBARA B. RUTLEDGE Assistant Attorney General

BBR:atb

Dear Mr. Purvis:

We are in receipt of your recent correspondence in which you present the following legal inquiry for our review:

The mayor of the Town of Jonesville recently upheld the decision of the chief of police to suspend a police officer. May the town council override the decision of the mayor?

The Town of Jonesville is a Lawrason Act municipality, governed by the provisions of R.S. 33:321, et seq. The position of chief of police in the Town of Jonesville is an appointed office.

R.S. 33:404 sets forth the duties of the mayor and states in pertinent part:

The mayor shall have the following powers, duties, and responsibilities:

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.

To delegate the performance of administrative duties to such municipal officers or employees as he deems necessary and advisable.

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 non-elected 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. 24:517 shall be subject to approval by the board of aldermen of that municipality. (Emphasis added).

As the town of Jonesville has an appointed and not an elected chief of police, the mayor has the authority to hire and fire police department employees.

The mayor's power to hire and fire encompasses also the power to suspend. See Bourgere vs. Anzelmo, 517 So.2d 1121 (La.App. 5th Cir. 1988), at page 1124. This is a duty specifically delegated to the mayor in R.S. 33:404(3); the action by the mayor does not require the concurrence of the town council, nor may his decision be overturned by the council. Thus, the mayor's decision to suspend the police officer is valid and the council's vote to override the mayor's action is without effect. Attached for your review is Attorney General Opinion 90-112, in further support of this conclusion.

Should you have other questions in which we may provide assistance, please contact this office.

Very truly yours,

CHARLES C. FOTI, JR. ATTORNEY GENERAL

BY: ____________________________ KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL

KLK:ams

OPINION NUMBER 90-112

March 19, 1990

71 — MUNICIPALITIES

77 — OFFICERS

An ordinance giving the aldermen of a Lawrason Act Community the authority to appoint a committee to hire, fire or suspend municipal employees is invalid since this is a function of the mayor.

Donald D. Landry, Esq. Counsel for Town of Broussard Perrin, Landry, deLaunay Durand P.O. Box 53597 Lafayette, LA 70505