Opinion Number ( 2006 )

Dear Mr. Gros:

You have asked this office to advise whether a newly elected member of the Ascension Parish Council my continue to hold his position as board member of the Ascension Consolidated Utilities District #1 ("the District").

The District was created by the Ascension Parish home rule charter in Article XI, Sec. 18-111(a) of that document, providing:

(a) Creation and purpose.

(1) The purpose of the Ascension Consolidated Utilities District #1 is for providing economy and efficiency in the furnishing of utilities on the western side of the Mississippi River in Ascension Parish, outside the corporate limits of Donaldsonville. [The term] "utilities" [is] hereby defined [as] water, sewage, gas and electricity or any combination thereof. Council grants unto the district the right, powers, and authority herein described, including, but not limited to, the power of taxation, the poser to incur debt and issue bonds and the power to assume the indebtedness of Water Districts #1, #4, and #7 now existing.

(2) Ascension Consolidated Utilities District #1 shall comprise the entire western side of the Mississippi River in Ascension Parish outside corporate limits of Donaldsonville and the district shall be a political subdivision of the State of Louisiana, as defined in Article VI, Section 44 of the Constitution of Louisiana, with authority to plan, finance, construct, acquire, improve, operate and maintain utilities within its designated boundaries.

(3) Water Districts #1, #4, and #7 currently existing will be abolished according to law after adoption of this ordinance [August 3, 2000], and all functions, obligations and grants are to be assumed by Ascension Consolidated Utilities District #1.*

Membership on the District board is authorized by Article XI, Sec. 18-111(b) of the home rule charter, stating:

(b) Board of commissioners to govern; membership

(1) The Ascension Consolidated Utilities District #1 shall be governed by a board of commissioners to be known as the "Board of Commissioners of the Ascension Consolidated Utilities District #1". The board shall be composed of seven (7) members and shall elect its officers which shall include a president, vice president(s), and secretary-treasurer. The secretary-treasurer may be, but shall not be required to be, a member of the board. All other officers shall be members of the board.

(2) Members of the board shall be appointed by the Ascension Parish Council provided, however, that the initial board members shall be appointed from the current membership of the Water District Boards #1, #4, and #7 affected by the creation of the district, provided, however, that each such board shall have at least one (1) member appointed from its current membership.

The charter provisions authorize the parish council to make appointments to this seven-member board; however, neither the charter nor state law at R.S. 33:7831 (which provides similarly) specifically authorizes the parish governing authority to appoint its membership to the District board.¹

The question becomes whether or not the District is a commission "over which [the parish council] exercise(s) general powers as provided in Article VI, Section 15" of the Louisiana Constitution. If the answer is "no", the incompatibility provisions of 42:64(A)(1) prohibit one from holding both positions, as cited below:

§ 64. Incompatible offices

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:

(1) The incumbent of one of the offices, whether or not in conjunction with fellow officers, or employment has the power to appoint or remove the incumbent of the other.

If the answer is "yes", R.S. 42:64(A)(1) permits the holding of both positions. The statute provides, in pertinent part:

. . . local governmental subdivisions may appoint members of the governing body to boards and commissions created by them and over which they exercise general powers as provided in Article VI, Section 15 of the Constitution of Louisiana . . .

The District is an agency falling within that category over which the governing authority has general powers, as provided in of dictates of LSA-Cont. Article VI, § 15 (1974), stating:

§ 15. Local Governmental Subdivisions; Control Over Agencies

Section 15. The governing authority of a local governmental subdivision shall have general power of 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.

The District is a consolidation of West Ascension Water Districts #1, #4, and #7. The latter three districts were abolished by the parish governing authority, as reflected in Article XI, Sec. 18-112 of the parish charter:

Sec. 18-112. Abolishment of West Ascension Water Districts #1, #4, and #7.

West Ascension Water Districts #1, #4, and #7 are hereby abolished.

(1) Creation and purpose.

a. Ascension Consolidated Utilities District #1 was created by ordinance in 2000 by the Ascension Parish Government to take over management, operational expense and assumption of all liabilities of West Ascension Water Districts #1, #4, and #7 on the west bank of Ascension Parish.

b. All debts have been paid that exist on West Ascension Water Districts #1, #4 and #7.

c. Ascension Consolidated Utilities District #1 is operational and has assumed all operational activities of West Ascension Water Districts #1, #4 and #7 and the existence of West Ascension Water Districts #1, #4 and #7 are no longer necessary.

d. West Ascension Water Districts #1, #4 and #7 are hereby abolished according to law and full responsibility for debts, operations and administration is hereby vested with Ascension Consolidated Utilities District #1.

The parish governing authority retains the power to abolish the consolidated District as it did those smaller districts now comprising the consolidated area. Thus, the District is a board or commission over which the parish governing authority exercises general powers as provided in Article VI, Section 15 of the Louisiana Constitution. R.S.42:64(1) permitting the parish to appoint its members to eligible positions available on the District board is applicable.

We conclude that newly elected councilman to the Ascension Parish Council may continue to hold his board membership with the District.

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,

CHARLES C. FOTI, JR. ATTORNEY GENERAL

BY: ________________________________

KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL

KLK:arg

¹ R.S. 33:7831 and R.S. 33:7832 provide, respectively:

§ 7831. Creation and purpose

A. For the object and purpose of providing economy and efficiency in the furnishing of water, sewer, and sewage treatment or disposal within any area of any parish, outside the corporate limits of municipalities, parish governing authorities may, upon their own initiative, create water and sewer commissions (herein the "commission") and grant unto the commission the rights, powers, and authority herein described, including, but not limited to, the power of taxation, the power to incur debt and issue bonds and the power to assume the indebtedness (in the same manner provided by Subpart C, Part III, Chapter 4, Title 39 of the Louisiana Revised Statutes of 1950, as amended, for the assumption of district debt by parish governing authorities) of any underlying water or sewer district then existing. Such commissions shall be created by any parish governing authority upon request by governing authority of two or more existing parochial water or sewer districts, as evidenced by resolution adopted by the governing authority of each such district.

B. Upon the creation of the commission and the fixing of its boundaries and jurisdiction, the commission shall be a political subdivision of the state of Louisiana, as defined Article VI, Section 44 of the Louisiana constitution of 1974, with authority to plan, finance, construct, acquire, improve, operate, and maintain water, sewer, and sewage treatment or disposal improvements and facilities within its designated boundaries.

§ 7832. Board of commissioners to govern; membership

A. The commission shall be governed by a board of commissioners to be known as the "Board of Commissioners of the (with the parish name inserted) Parish Water and Sewer Commission" (the "Board"). The board shall be composed of not less than five, nor more than seven members and shall elect its officers which shall include a president, vice president(s), and secretary-treasurer. The secretary-treasurer may be, but shall not be required to be, a member of the board. All other officers shall be members of the board.

B. Members of the board shall be appointed by the governing authority of the parish, provided, however, that the initial board members shall be appointed from the current membership of the waterworks boards and/or sewer boards affected by the creation of the commission, provided, however, that each such board shall have at least one member appointed from its current membership.