Opinion Number ( 2009 )

Dear Mr. Minaldi:

You ask this office to advise whether the Fire Chief of the Town of Vinton may also hold a separate position as a part-time firefighter in the Vinton Volunteer Fire Department.

The Louisiana Dual Officeholding and Dual Employment Law, La.R.S. 42:61, et seq., sets forth those positions of public office and/or public employment which may not be held at the same time. Applicable here is the definition of "appointive office" under La.R.S. 42:62(2), providing that an "appointive office" is an "office . . . specifically established or specifically authorized . . . by the charter or ordinances of any political subdivision thereof . . . which is filled by appointment . . . by an elected or appointed public official or by a governmental body composed of such officials . . ."

The Fire Chief of the Town of Vinton holds "appointive office" as his position is established under Chapter 10, Section 10-41 of the Vinton Code of Ordinances, providing that "the chief of the volunteer fire department shall be appointed by the Mayor, by and with the consent of the board of aldermen . . ." The position is held on a full-time basis, and funded by the Town of Vinton.

A firefighter in the Town of Vinton likewise holds "appointive office" as under Section 10-23(a) of the Vinton Code of Ordinances "the membership of the department shall consist of such persons as may be appointed by the chief . . ." A firefighter "may be suspended or discharged by the chief at any time he may deem such action necessary for the good of the department . . ." under Section 10-23(d).

A fire chief may not at the same time hold a separate and additional position of firefighter, as these positions are deemed incompatible under several parts of La.R.S. 42:64, including La.R.S. 42:64(A)(1), prohibiting the holding of two positions where "the incumbent of one of the offices . . . has the power to appoint or remove the incumbent of the other . . ." Further, positions are deemed incompatible where "the incumbent of one office . . . is required by law to execute orders and follow directions given by the other office . . ."

Because the incompatibility provisions of La.R.S. 42:64 apply, it is the opinion of this office that the Fire Chief of the Town of Vinton may not at the same time hold a separate position as a part-time firefighter within the same department.

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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