Opinion Number ( 2005 )

Dear Ms. Livingston:

You have asked that we reconsider the portion of Opinion #04-192 in which we stated that we were not aware of any law that prohibits the District from hiring a fire chief as an independent contractor rather than a salaried employee of the District. You expressed concern that this might be misinterpreted and result in violations of civil service law. In light of your request, we note the following.

We were asked whether there was a legal requirement to pay a fire chief a salary, or whether the District could contractually retain the services from an individual as an independent contractor.

La. Const. Art. X, Section 16 provides as follows:

A system of classified fire and police civil service is created and established. It shall apply to all municipalities having a population exceeding thirteen thousand and operating a regularly paid fire and municipal department and to all parishes and fire protection districts operating a regularly paid fire department. [Emphasis added]

The constitution mandates that a system of classified fire civil service be created for fire protection districts operating a "regularly paid fire department".¹ This office has followed the interpretation of the State Examiner that one full-time employee constitutes a "regularly paid fire department".² Thus, if a fire protection district hires a full time fire chief, it will meet the requirement of a "regularly paid fire department" and will be required to create a classified fire and police civil service system.³

La. R.S. 33:2531 et seq. is the "Fire and Police Civil Service Law for Small Municipalities and for Parishes and Fire Protection Districts". R.S. 33:2535-2436 provide for a classified civil service system and a fire and police civil service board to be created in each fire district. The classified and unclassified service is defined as follows:

La. R.S. 33:2541. Classified and unclassified service

A. The classified service shall comprise every position, except those included in the unclassified service, to which the right of employee selection, appointment, supervision, and discharge is vested in the government of the municipality, parish or fire protection district as the case may be, under which the fire or police service functions, or in an officer or employee thereof, and which has as its primary duty and responsibility one of the following:

(FIRE)

1. The chief and assistant chiefs, . . .

We are still unaware of any law that expressly prohibits the District from contracting with an individual as an independent contractor to perform the services of a fire chief. We agree, however, that if the district hires a fire chief, the District will be required to create a classified fire and police civil service system, which would include the position of fire chief in the classified service. To the extent that Opinion No. 04-192 implies differently, it is hereby amended.

We trust this adequately responds to your request. If you have any questions, please contact our office.

Yours very truly,

CHARLES C. FOTI, JR. ATTORNEY GENERAL

By: _________________________________ DENISE B. FITZGERALD Assistant Attorney General

¹ See Attorney General Opinion Nos. 01-379, 98-267, 95-37, and 94-441.

² See Attorney General Opinion No. 93-378(A).

³ See Attorney General Opinion Nos. 98-267, 95-37, 94-441, 93-378, and 93-378(A).