Opinion Number ( 2009 )

Dear Mayor Curry:

As Mayor for the City of New Iberia, you advise that the existing department heads for the City of New Iberia hold their positions pursuant to appointments made and confirmed by the current administration, in accordance with the provisions of a special legislative charter now governing the City of New Iberia. Section 14 of that special legislative charter pertains to the powers and duties of the Mayor, and provides that the Mayor ". . . shall have the authority to appoint and remove all municipal employees . . . and all department heads . . . however, appointment of . . . all department heads . . . shall be subject to approval of the board".

You advise that you will continue to serve as Mayor, as you were unopposed in the recent election, but there will be newly elected members of the City Council who will take office in January of 2009. Further, the provisions of a new home rule charter, adopted by referendum vote of the electorate of the City of New Iberia, become effective January 1, 2009. Considering the foregoing, you ask if the directors of city departments (i.e., the department heads) must be reappointed and reconfirmed at the first regular meeting of the New Iberia City Council.

We have reviewed the provisions of the new home rule charter, and find the following sections pertinent to this discussion:

Section 3-01. Executive Authority.

The mayor shall be the chief executive officer of the City and shall exercise general executive and administrative authority over all departments, offices and agencies of the City, except as otherwise provided by this charter.

Section 3-07. Powers and Duties of the Mayor.

A. The mayor, as chief executive officer of the City, shall have the following powers and duties:

(2) Appoint and suspend or remove with or without cause all City employees and appointive administrative officers provided for, by or under this charter, except as otherwise provided by law, this charter or civil service or other personnel rules adopted pursuant to this charter. The mayor may authorize any administrative officer who is subject to the mayor's direction and supervision to exercise these powers with respect to subordinates in the officer's department, office or agency.

Section 4-01. General Provisions.

Except as otherwise provided by this charter all departments, offices and agencies shall be under the direction and supervision of the mayor, and the directors of all departments created by or under this charter shall be appointed by the mayor and shall serve at the pleasure of the mayor. Appointments by the mayor to the directors of all departments shall be subject to confirmation by the council. The directors of all departments shall serve at the pleasure of the mayor but may also be removed by unanimous vote of the entire council for just cause. These appointments include but are not limited to the Chief Administrative Officer, City Clerk, City Treasurer, Tax Collector, City Attorney, City Prosecutor, Director of Public Works, Director of Waste Water, Building Inspector, Director of Parks and Recreation, Director of Planning and Zoning, Director of Community Development. (Emphasis added).

A vacancy in an appointed office occurs at the expiration of a fixed term, requiring a new appointment to fill the position. However, this general rule is inapplicable here, as neither the current special legislative charter, nor the new home rule charter which will supersede it, provide for terms of office for those holding appointments as directors of city departments. "The universally accepted rule is that, where the tenure of the office is not prescribed by law, the power to remove is an incident to the power to appoint. The tenure not having been declared by law, the office is held during the pleasure of the authority making the appointment". See Potts vs. Morehouse Parish SchoolBoard, 150 So. 290 (La. 1933).

Further, the Mayor's power to appoint and remove the directors of city departments under the special legislative charter is retained and amplified within the provisions of the new home rule charter. Section 4-01 of the new home rule charter states "the directors of all departments created by or under this charter shall be appointed by the mayor and shall serve at the pleasure of the mayor". Thus, those directors of city departments already appointed and confirmed as department heads, who serve without a specific term, are not required to be reappointed and reconfirmed at the first meeting of the New Iberia City Council following the municipal election; rather, these appointees continue to serve at the pleasure of the Mayor, and remain in office until such time as they are removed by the Mayor, or until removed by the unanimous vote of the entire City Council for just cause under Section 4-01.

Finally, we note that incumbent department heads may also be affected by the reorganization authorized in Sections 4-10 through 4-11 of the new charter.

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,

JAMES D. "BUDDY" CALDWELL

ATTORNEY GENERAL

BY: __________________________

KERRY L. KILPATRICK

ASSISTANT ATTORNEY GENERAL

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