Opinion Number

Dear Mr. Breithaupt:

This office is in receipt of your request for clarification of Attorney General Opinion No. 93-446 relative to the hiring of police personnel.

You specifically make reference to the statement in that opinion that the elected police chief "shall make recommendations to the mayor and board of aldermen for appointments of police personnel." In regard to this statement you indicate that the Mayor "is adamant that the police chief's recommendation must first come to him, and then if he agrees with the recommendation, he presents the recommendation to the council, otherwise, the recommendation is never presented to the council."

You further point out that the opinion stated that the final authority for hiring rests with the mayor and board of aldermen, but the Mayor says he does the hiring. Therefore, you seek clarification on the procedure for hiring the police personnel.

You ask the following questions:

1. Can the Mayor refuse to present the chief's recommendation to the council; and

2. Does the Mayor hire after the board of aldermen approves the personnel, or is the hiring a joint action of both mayor and aldermen.

The procedure for selection of police personnel where the chief of police is elected is governed by R.S. 33:432(A) which provides the chief of police "shall make recommendations to the mayor and board of aldermen for appointment of police personnel, * * * and for dismissal of police personnel." There are numerous opinions of the Attorney General which quote this provisions, as did Attorney General Opinion 93-446.

Based upon the wording of the statute we cannot agree with the position of the Mayor that the police chief's recommendation must first come to him, and then if he agrees with the recommendation, he presents the recommendation to the council. The statute is written in the conjunctive, stating the recommendation is made to "the mayor and board of aldermen". We find nothing to support the position of the mayor, and in answering your first question, we find the mayor cannot refuse to present the chief's recommendation to the council.

We note that R.S. 33:405 provides that the mayor presides at all meetings of the board of aldermen, and in case of equal division, he shall give the deciding vote. Also, R.S. 33:404, in setting forth the duties of the mayor, provides he appoints and removes municipal employees "other than employees of a police department with an elected chief." Even with a non-elected chief of police, the mayor's appointment is subject to approval of the board of aldermen, except in case of tie vote, the recommendation of the mayor shall prevail.

Based upon the statutory provisions and prior opinions of this office, Atty. Gen. Op. Nos. 92-279, 92-256, 88-523, we must conclude the selection of police personnel from the recommendation by the chief, is made by the board of aldermen with the mayor presiding. If there is a tie vote, the recommendation of the mayor shall prevail. Thereafter the mayor issues the commission. Atty. Gen. Op. No. 90-313.

We hope this sufficiently clarifies the prior opinion, but is we can be of further assistance, do not hesitate to contact us.

Sincerely yours,

RICHARD P. IEYOUB Attorney General

BY: BARBARA B. RUTLEDGE Assistant Attorney General

BBR