Opinion Number ( 1996 )

Dear Mr. Tureau:

You advise this office that the current hospital board of East Ascension General Hospital is governed by five (5) commissioners. You inquire whether the Ascension Parish Council may change the number of the board of commissioners of the hospital from five (5) to seven (7), considering its status as a Home Rule Charter Parish. We conclude the council lacks authority to do so for the following reasons.

LSA-R.S. 46:1053(A) states:

A. Any hospital service district formed or created under the provisions of this Chapter shall be governed by a board of five commissioners, hereafter referred to as commission, who shall be qualified voters and residents of the district. The commission shall be appointed by the police jury of the parish. Two of the first commissioners so appointed shall serve for two years, two for four years and one for six years. (Emphasis added).

Use of the word "shall" in LSA-R.S. 46:1053(A) is mandatory, as provided in LSA-R.S. 1:3:

Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.

The word "shall" is mandatory and the word "may" is permissive. (Emphasis added).

We find that the Ascension Parish Council may appoint only five (5) commissioners to the hospital service district board as such other action would be inconsistent with that authority allocated the parish council pursuant to LSA-Const. Art. VI, Section5(E) providing:

(E) Structure and Organization; Powers; Functions. A home rule charter adopted under this Section shall provide the structure and organization, powers, and functions of the government of the local governmental subdivision, which may include the exercise of any power and performance of any function necessary, requisite, or proper for the management of its affairs, not denied by general law or inconsistent with this constitution.

Local law that is consistent with the constitution and general laws of this state and is enacted pursuant to a constitutionally maintained preexisting home rule charter, is a legal exercise of the powers of a home rule government. City of New Orleansv. Board of Commissioners of Orleans LeveeDistrict, 640 So.2d 237 (1994).

However, an ordinance in contradiction to state law would be violative of constitutional mandate. The Ascension Parish Council is presently constrained to hold the membership of each hospital service district to five board members, unless legislative amendment to LSA-R.S. 46:1053(A) is sought. We note that several other governing authorities of hospital service districts are specifically empowered within the language ofLSA-R.S. 46:1053 to appoint more than five commissioners per hospital service district.

As noted, the same could be accomplished in Ascension Parish, via legislative amendment.

Should you have further inquiries, please contact this office.

Very truly yours,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: __________________________________________ KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL

KLK:ams

Date Received:

Date Released: April 4, 1996

KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL