Opinion Number ( 1998 )

Dear Mr. Guerin:

You have requested a clarification of Attorney General Opinion Number 98-2, issued January 6, 1998, regarding the filling of a vacancy in the office of Mayor, City of Hammond. You seek clarification on the following two questions:

1. Is the city required to issue a call for an election on April 4th? In other words, is an election mandatory April 4th under the applicable state law that supersedes our Charter's provisions providing for a special election within sixty days of the office vacancy?

2. Currently, under provisions of our Charter, the Director of Administration is serving as acting mayor. Is further action required of the council prior to January 10, 1998, for the Director of Administration to remain as acting mayor for the balance of the unexpired term or do we need to appoint an acting mayor in accordance with state law?

In response to your first question, I refer you to the Charter of the City of Hammond, quoted on page 2 of the original opinion, which in sum states that if a vacancy occurs more than 6 months prior to the expiration of the term, as in the matter at hand, the director of administration shall serve as acting mayor untilthe office is filled by the qualified voters in a specialelection called by the council for that purpose. Our opinion provides you with advice as to when a special election may be called by the council, and that date is April 4, 1998. There are no other "special" election dates set by the election code for 1998, due to the fact that the October date is scheduled as a "regular" election date for the new term of office that is to begin in January of 1999. We can not opine that an election is mandatory on April 4th. We can advise the council that the provisions of the charter are controlling and that it is the council's duty to comply with the law. The intent of the charter, in our opinion, is that a special election is to be called by the council very quickly (within 60 days). Since that is not possible, it is our opinion that the election is to be called at the first available special election date, which is April 4, 1998.

In response to your second question, we believe that it is clear in our opinion that the Director of Administration is to serveonly until his successor is elected at a special election. See, page 2 of the original opinion, "[i]t is our opinion that the director of administration shall serve as acting mayor until the office of mayor is filled by special election." Not calling a special election, and allowing the director to hold office until the term expires on December 31, 1998, is contrary to the specific language of the charter, which in our opinion is controlling in this matter. See, R.S. 18:602(G). The charter states that "[t]he director of administration shall serve as acting mayor until the office is filled by the vote of the qualified electors voting in a special election called by the council for that purpose". Therefore, action is required by the council, as directed by the charter, and state law is not controlling in this instance, except with regard to an election date.

We hope this clarifies our earlier opinion, and if we can be of further assistance, please advise.

Yours very truly,

RICHARD P. IEYOUB ATTORNEY GENERAL

ANGIE ROGERS LAPLACE Assistant Attorney General

RPI/ARL:cwr

cc: John J. Dahmer, Clerk of Court City Council, City of Hammond Tom Anderson, City Attorney

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