Opinion Number

Dear Mr. Landry:

You requested the opinion of this office concerning the budgetary control, if any, the Iberia Parish Council (the "Council") has over the Iberia Parish Recreation and Playground Board (the "Board"). Your questions are whether the Council has budgetary approval of the Board's budget, and if so, does this budgetary approval include approval of individual salaries of employees as recommended by the the Iberia Parish Recreation Superintendent to the Board?

By Ordinance 86-10-319 and pursuant to the provisions of Article VI, Sections 5 and 15 of the Constitution of the State of Louisiana of 1974, and Article VIII, Section 8—02 of the Home Rule Charter of the Parish of Iberia, the Council created the Iberia Parish Recreation and Playground Commission (the "Commission").

The boundaries of the Commission were the same as the parish boundaries less and except the area contained within the corporate boundaries of the City of New Iberia. The Commission was created as a body politic and political subdivision with the right to sue and be sued and to incur debt and issue bonds and to perform any function and exercise any power necessary, requisite, or proper for the management of its affairs as authorized. The control and management of the Commission was vested in the Board. Section 18-43 of Ordinance 86-10-391.

Article VI, Section 15 of the Louisiana Constitution states as follows:

"The governing authority of a local governmental subdivision shall have general power over any agency heretofore or hereafter created by it, including, without limitation, the power to abolish the agency and require prior approval of any charge or tax levied or bond issued by the agency." (Emphasis supplied.)

Thus the Constitution grants unto the creating authority, in this instance the Council, the right to supervise the actions of the entity created by it, namely the Commission. That the Council has decided to reserve unto itself the right to supervise the budget of the Commission is shown by the Section 18-18 of the Ordinance as follows:

"The board shall establish a budget for the operating and maintenance expenses on a calendar year basis which budget shall be submitted to the Iberia Parish Council for approval before adoption. The board shall have no authority to exceed any budget item once approved by the parish council unless and until such excess items have been submitted to and approved by the parish council." (Emphasis supplied.)

Based upon the foregoing, it is evident that the Council has retained the right to approve the Board's budget.

The Ordinance authorizes the Board to name and employ a person who shall be designated as Superintendent. The Board has the power to prescribe and pay an annual salary to the Superintendent. Section 18-14(6). The Board is specifically instructed that the actual administration of public recreation and its facilities are to be accomplished through the Superintendent and the Board is to endeavor to avoid actual participation in the administrative affairs of the recreation board. Section 18-15(b). The powers and duties of the Superintendent are set forth in Section 18-15 which provides in part as follows:

"(a) The superintendent shall be responsible for the following duties, but not limited to:

(3) Develop and execute sound personnel procedures and practices including, but not limited to the establishment and abolishment of positions; the transfer of duties between positions; the assigning of duties; the directing, controlling, transferring, promoting, demoting and any other change in the status of employees of the board; the nominating of any and all such employees and the salaries to be paid in each case.

(5) Direct the implementation of an evaluative program for the appraisal of personnel and take an active role in the development of benefits for all personnel and recommend to the board those benefits which, within budgetary limitations, will best serve the interests of the board.

(7) Supervise the preparation of annual budget of the board.

(8) Approve and direct all purchases and expenditures within the approved budget of the board." (Emphasis supplied.)

Thus the Council has authorized the Board to set the Superintendent's salary and the Superintendent to set the salaries of the employees of the Board.

If the budget contains each employee's salary as separate line items, it would appear that the Council has the right to review each item in the budget. of course, such review would have the effect of moving the administrative functions from the Superintendent and the Board to the Council, which would render the Board meaningless and purposeless.

If, however, the budget contains one line item for salaries (which is all that is required by the Ordinance, the Local Government Budget Act, R.S. 39:1301, et seq., and accounting standards) without detailing the specific salaries of the various employees, the Council would not review and approve the individual salaries of the employees. In that instance, the Council would review whether the budget, in its entirety, is fiscally sound thus leaving it to the Board, through the Superintendent, to determine in their discretion, the amounts the employees of the recreation district should be paid, provided the total paid did not exceed the lump sum approved by the Council.

Trusting this adequately responds to your request, I remain

Sincerely,

WILLIAM J. GUSTE, JR. Attorney General

BY: __________________________ MARTHA S. HESS Assistant Attorney General

MSH: jay

Dear Mr. Washington:

You advise that you are currently employed by the Iberville Parks Recreation District and that you hold the elective office of alderman for the Town of Maringouin. The Dual-Officeholding and Employment Laws R.S. 42:61, et seq., prohibit one from holding local elective office and employment in the same political subdivision, see R.S. 42:63(D)1. Since you hold local elective office with a municipality and employment with the recreation district, which are separate political subdivisions as defined by R.S. 42:62(9)2, the prohibition is inapplicable.

You state that you intend to run for the elective office of councilman for the Iberville Parish Council. This makes the concurrent holding of either office mentioned above problematic. First, R.S. 42:63(C)3
specifically prohibits one from holding two elective offices at the same time. This prohibition would preclude the possibility of you holding both the positions of town alderman and parish councilman at the same time.

Second, as stated previously, a recreation district is a political subdivision of the state. See R.S. 33:45664; see also Attorney General Opinion 94-133(B), copy attached. Your employment with the recreation district is in a separate political subdivision from the political subdivision in which you hold the elective office of alderman, and for that reason, is not prohibited by law. The same reasoning would ostensibly hold true if the only positions under consideration were your employment with the recreation district and the elective parish office, again, positions held in separate political subdivisions.

However, we are concerned about the applicability of R.S. 42:64
relevant to incompatible offices, which pertinently provides:

A. In addition to the prohibitions otherwise provided in this Part, no other offices or employments shall be held by the same person in combination if any of the following conditions are found to pertain and these prohibitions shall exist whether or not the person affected by the prohibition exercises power in conjunction with other officers:

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(4) The incumbent of one office, whether or not in conjunction with fellow officers, or employment is required by law to execute orders and follow directions given by the incumbent of the other office or employment.

(5) One office, whether or not in conjunction with fellow officers, or employment is charged with auditing the accounts of or approving the budget of the other position.

(6) Funds received by one office or employment are deposited with or turned over to the other office or position.

If the Iberville Council retains budgetary control over the recreation district, then the incompatibility provisions would apply, prohibiting you from holding the office of councilman and continuing in your employment with the district. See, for example, the circumstances surrounding the Iberia Parish Council and the Iberia Parish Recreational District as recounted in Attorney General Opinion 89-393, copy attached.

Iberville Parish is governed by the provisions of a home rule charter, which should be reviewed for provisions applicable to this matter. Further, the parish ordinance creating the recreational district should be reviewed to determine to what extent, if any, the council has retained fiscal supervision over the district.

To conclude, you must choose which elective office you want to keep, because the law prohibits you from holding both simultaneously. A definitive conclusion regarding your ability to hold both your employment with the recreation district and the elective position of councilman may only be made after review of the home rule charter and pertinent ordinances. Suffice it to say that if the council retains any budgetary control over the finances of the recreational district, the incompatibility provisions would prohibit your holding both positions concurrently.

We hope the foregoing is helpful to you. Should you have other questions in which we may provide assistance, please contact this office.

Very truly yours,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: _____________________________________ KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL

KLK:ams

Date Released: April 8, 2003

KERRY L. KILPATRICK

ASSISTANT ATTORNEY GENERAL

1 R.S. 42:63(D) states:

D. No person holding an elective office in a political subdivision of this state shall at the same time hold another elective office or full-time appointive office in the government of this state or in the government of a political subdivision thereof. No such person shall hold at the same time employment in the government of this state, or in the same political subdivision in which he holds an elective office. In addition no sheriff, assessor, or clerk of court shall hold any office or employment under a parish governing authority or school board, nor shall any member of any parish governing authority or school board hold any office or employment with any sheriff, assessor, or clerk of court. (Emphasis added).

2 R.S. 42:62(9) states:

(9) "Political subdivision" means a parish, and any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions. In addition for the purposes of this Part., mayor's courts, justice of the peace courts, district attorneys, sheriffs, clerks of court, coroners, tax assessors, registrars of voters, and all other elected parochial officials shall be separate political subdivisions.

3 R.S. 42:63(C)states:

C. No person holding an elected office in the government of this state shall at the same time hold another elective office, a full-time appointive office, or employment in the government of this state or in the government of a political subdivision thereof.

4 R.S. 4566 provides in pertinent part:

The recreation districts created under the provisions of R.S. 33:4562
are declared to be political subdivisions of the state.

OPINION NUMBER 89-393

July 24 1989

90 Police Duties

90 AA Recreation

Article VI § 15 LA. Constitution

R.S. 39:1301. et seq.

Iberia Parish Council has reserved unto itself the right to review and approve the budget of the Iberia Parish Recreation and Playground Board.

Mr. J. Wayne Landry Assistant District Attorney

Martha S. Hess, Assistant Attorney General

Mr. J. Wayne Landry Assistant District Attorney Sixteenth Judicial District Courthouse Bldg., Suite 200 300 Iberia Street New Iberia, LA 70560-4583