Judges: JAMES D. \"BUDDY\" CALDWELL, Attorney General
Filed Date: 2/7/2008
Status: Precedential
Modified Date: 7/5/2016
Dear Chief O'Malley:
You advise this office that you are the elected chief of police for the Village of Montpelier, a Lawrason Act municipality, governed by the provisions of R.S.
That the Village of Montpelier's Marshall/Chief of Police shall attend the regularly scheduled monthly meetings of the Board of Aldermen of the Village of Montpelier to report on the status of the Montpelier Police Department and to answer questions from the Board of Aldermen and/or the public. Attendance at the regular monthly meetings of the Board of Aldermen of the Village of Montpelier shall be a part of the Village of Montpelier's Marshall/Chief of Police's duties of office.
R.S.
A. The marshal shall be the chief of police and shall be ex officio a constable. He shall have general responsibility for law enforcement in the municipality, and shall be charged with the enforcement of all ordinances within the municipality and all applicable state laws. He shall perform all other duties required of him by ordinance. . . . .(Emphasis added).
The court in Cogswell vs. Town of Logansport,
The elected chief of police is an `officer' of the town and may not be relegated to the status of an employee. See R.S.
33:381 .1 This does not mean however, that the mayor and alderman may not assign certain duties to the chief of police. . . . . .Sec. I(K) requiring the chief to attend regular meetings of the aldermen is obviously in the interest of governmental efficiency and does not revoke or restrict the inherent powers of the chief of police. Cogswell, supra, at page 780. (Emphasis added).
In accordance with the Cogswell decision, it is the opinion of this office that the village governing authority may by ordinance require you as chief of police to attend monthly meetings of the board of aldermen. Such a requirement does not restrict your inherent powers as elected chief of police. In accord are Attorney General Opinions 06-0008, and 85-196, copies attached.
We hope the foregoing is helpful to you. Should you have other questions in which we may provide assistance, please contact this office.
*Page 1Very truly yours,
JAMES D. "BUDDY" CALDWELL
ATTORNEY GENERAL
By: __________________________
KERRY L. KILPATRICK
ASSISTANT ATTORNEY GENERAL
KLK:arg
This office is in receipt of your opinion request wherein you asked the following:
1) What course of action should the police department take if the mayor refuses to hold mayor's court, and also directly and indirectly blocks the police chiefs attempts to send tickets to the 37th Judicial District Court for prosecution?
2) Does the mayor have the authority to tell traffic offenders that they do not have to pay their tickets, even though no type of court proceeding has been followed?
3) What is the police personnel's liability from issuing tickets to offenders, who, in turn, have no avenue to contest the ticket, due to lack of mayor's court?
4) Can the town council enact an ordinance requiring the police chief to be at monthly town meetings regardless of whether other responsibilities of the chief are delayed?
5) Can the town council limit, by ordinance, the police chiefs use of his patrol vehicle to misdemeanor pursuits for 3 miles outside the village limits, felony pursuits, and requests for assistance from other agencies? The particular ordinance prohibits the use of the vehicle to take prisoners out of town to the parish jail, as the village has no facility, to attend court proceedings, for vehicle *Page 2 maintenance and for many other uses that require the unit to be taken out of town.
6) Can the town council take the chief to court to force him to fire an unpaid, commissioned reserve officer, who was hired by the council at the chiefs recommendation, simply because the chief changed the officer's duties to include citing traffic offenders and arresting offenders after he completed the POST academy (for another agency)?
7) Can the mayor open and inspect mail sent to the police chief/police department against the chiefs wishes due to the sensitive nature of some correspondence (ex: crime lab reports)?
8) Does the village have any type of recourse against council members that do not come to the monthly scheduled meetings, having attended only 4 in the last year?
9) Is it legal for the council to award a construction contract to a friend of a council member, who at the time of awarding the contract had employed the same person to do work on her residence, without requesting bids? The contract was awarded and costs $11,000, while a local competitor was not contacted until after construction was complete and gave a bid of $3,500.
10)Can a council member vote to hire a company for dirt work, when the council member is in a personal business contract with the owner of the company, as she leases a convenience store from dirt mover owner?
11)Can a council member vote to hire a family friend to move town property, and the person hired to use town equipment and town trustee inmates to do the labor?
To more efficiently and accurately answer your questions, the responses will be numbered according to the questions listed above.
Both the federal and state constitution provide that ""no person shall be deprived of life, liberty, or property, except by due process of law." U.S. Const., Amendment
The mayor has a duty to faithfully support and execute the laws of Louisiana and the Louisiana Constitution. As stated above, the constitution requires all courts to be open and confers upon each citizen the right to due process. If the offenders are still being punished or required to pay for their tickets and the mayor is refusing to hold mayor's court and directly and/or indirectly obstructing access to the district courts, it may be a denial of the right to due process, which is violation of the Louisiana Constitution and a violation of the mayor's duties as chief executive officer. However, if the traffic offenders are not being punished or required to pay the traffic ticket, there is likely no denial of their right to due process.
Furthermore, the mayor's court only has jurisdiction over violations of municipal ordinances. La.R.S.
La.Const. Art. 2, § 2, provides, "except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others." Under this separation of powers doctrine, *Page 4 neither the chief of police nor his personnel is responsible for exercising the powers of the judiciary. As a result, the police personnel will not be assessed any fault for writing traffic tickets despite the lack of any court proceedings through which the offender may contest the ticket.
The title of a proposed ordinance, except those specifically authorized by R.S.
33:405 (D), shall be published once in the municipality's official journal. The notice shall indicate the time and place where the board will consider its adoption. No ordinance, except one authorized by R.S.33:405 (D), shall be adopted until a public hearing on it has been held. No ordinance, except one authorized by R.S.33:405 (D), can be adopted at the meeting at which it is introduced.
La.R.S.
Nonetheless, La.R.S.
Accordingly, pursuant to the above cited statutes, the town council has the power and authority to enact an ordinance such as, requiring the chief of police to be at monthly town meetings. However, La.R.S.
With respect to an ordinance enacted pursuant to La.R.S.
If the ordinance is passed and the police chief does not appear at the town meeting, he may face whatever fine or imprisonment is imposed by the ordinance. In addition, the *Page 5
police chief may face charges of malfeasance in office under La.R.S.
Malfeasance in office is committed when any public officer or public employee shall:
(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or
(2) Intentionally perform any such duty in an unlawful manner; or
(3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.
Any duty lawfully required of a public officer or public employee when delegated by him to a public officer or public employee shall be deemed to be a lawful duty of such public officer or employee. The delegation of such lawful duty shall not relieve the public officer or employee of his lawful duty.
Whoever commits the crime of malfeasance in office shall be imprisoned for not more than five years with or without hard labor or shall be fined not more than five thousand dollars or both.
As discussed in question four above, the board of aldermen has the authority to enact ordinances according to the procedure laid out in the Lawrason Act. La.R.S.
Therefore, the town council has the power and authority to enact an ordinance such as, limiting the police chiefs use of his patrol vehicle. However, La.R.S.
If the ordinance is passed and the police chief does not appear at the town meeting, he may face whatever fine or imprisonment is imposed by the ordinance. In addition, the police chief may face charges of malfeasance in office under La.R.S.
Malfeasance in office is committed when any public officer or public employee shall:
(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or
(2) Intentionally perform any such duty in an unlawful manner; or
(3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.
Any duty lawfully required of a public officer or public employee when delegated by him to a public officer or public employee shall be deemed to be a lawful duty of such public officer or employee. The delegation of such lawful duty shall not relieve the public officer or employee of his lawful duty.
Whoever commits the crime of malfeasance in office shall be imprisoned for net more than five years with or without hard labor or shall be fined not more than five thousand dollars or both.
Accordingly, the chief of police can make a recommendation not to dismiss an unpaid commissioned reserve officer. Nonetheless, the Supreme Court of Louisiana in Grant *Page 7 v. Grace, 03-2021 (La. 4/14/04),
On the contrary, if the police department does not have an elected chief of police, the mayor has the authority to appoint or remove such municipal employees. La.R.S.
Consequently, since the mayor does not have the power "to supervise and direct the administration and operation" of a police department with an elected chief of police, he likely does not have the authority to open and inspect mail sent to the police chief and/or police department. La.R.S.
On the other hand, if the police department does not have an elected chief of police, the mayor does have supervisory authority under La.R.S.
Very truly yours,*Page 1CHARLES C. FOTI, JR.
ATTORNEY GENERAL
BY:__________________________
ARTHUR SCHAFER
ASSISTANT ATTORNEY GENERAL
Dear Mr. LaFont:
This is in response to your request for an opinion from this office on the following question:
"Can the Mayor and Board of Aldermen, governing under the Lawrason Act, force an elected Chief of Police to attend all their town meetings?"
Pursuant to La.R.S.
We also call your attention to La.R.S.
We hope this opinion is responsive to your request, and trust that you will call upon us if we may be of additional assistance.
Sincerely,WILLIAM J. GUSTE, JR.
Attorney General
BY:__________________________
PAMELA MILLER PERKINS