Opinion
June 4, 2004
R.S. 33:361, et seq.; R.S. 33:404; R.S. 33:423; R.S. 14:134
Mayor is without authority to direct a police officer to issue a citation in a Lawrason Act municipality with an elected chief of police. An elected chief of police has supervisory authority over police department personnel.
Chief James Burnett Via Fax 337-783-6785
Dear Chief Burnett:
We are in receipt of your correspondence to this office, in which you ask the following question: May the mayor of a Lawrason Act municipality order a police officer to issue an animal control citation? For the following reasons, our response is in the negative.
The Village of Estherwood is governed by the provisions of the Lawrason Act, R.S. 33:361, et seq. Estherwood has a mayor whose duties are set forth in R.S. 33:404, which pertinently provides:
§ 404. Duties of mayor
A. The mayor shall have the following powers, duties, and responsibilities:
(1) To supervise and direct the administration and operation of all municipal departments, offices, and agencies, other than a police department with an elected chief of police, in conformity with ordinances adopted by the board of aldermen and with applicable provisions of state law; however, no such ordinance may limit the authority granted to the mayor by this Paragraph. All administrative staff shall be subordinate to the mayor.
(2) To delegate the performance of administrative duties to such municipal officers or employees as he deems necessary and advisable.
(3) Subject to applicable state law, ordinances, and civil service rules and regulations, to appoint and remove municipal employees, other than the employees of a police department with an elected chief of police. However, appointment or removal of a nonelected chief of police, the municipal clerk, the municipal attorney, or any department head shall be subject to approval by the board of aldermen, except that in the case of a tie vote, the recommendation of the mayor shall prevail. Furthermore, selection or removal of any person engaged by a municipality to conduct an examination, review, compilation, or audit of its books and accounts pursuant to R.S. 24:517 shall be subject to approval by the board of aldermen of that municipality.
(4) To sign all contracts on behalf of the municipality.
(5) To prepare and submit an annual operations budget and a capital improvements budget for the municipality to the board of aldermen in accordance with the provisions of R.S. 39:1301 et seq. and any other supplementary laws or ordinances.
(6) To represent the municipality on all occasions required by state law or municipal ordinance.
(7) To be the keeper of the municipal seal and affix it as required by law.
(8) To sign warrants drawn on the treasury for money, to require that the municipal clerk attest to such warrants, to affix the municipal seal thereto, and to keep an accurate and complete record of all such warrants.
(9) To have any other power or perform any other duty as may be necessary or proper for the administration of municipal affairs not denied by law.
B. The provisions of this Section shall not be construed to alter, affect, or amend any powers, duties, and functions of any elected chief of police as set forth in R.S. 33:423, R.S. 33:423.2, and R.S. 33:423.3. (Emphasis added).
The elected chief of police has certain powers as set forth in R.S. 33:423, providing:
§ 423. Duties of marshal
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. In those municipalities governed by the provisions of this Part, R.S. 33:321 et seq., which have a chief of police elected by the qualified voters thereof, he shall make recommendations to the mayor and board of aldermen for appointment of police personnel, for the promotion of officers, to effect disciplinary action, and for dismissal of police personnel. Such nominations or recommendations are to be made regardless of race, color, disability, as defined in R.S. 51:2232(11), or creed.
B. The provisions of Subsection A of this Section shall not be construed to limit or restrict the provisions of R.S. 33:423.3. (Emphasis added).
As R.S. 33:423 quoted above indicates, an elected chief of police in a Lawrason Act municipality is given the general responsibility for law enforcement.
An elected chief of police has, pursuant to R.S. 33:423, the inherent power and authority to supervise and control his office, equipment and personnel on a day-to-day basis. In Cogswell v. Town of Logansport, 321 So.2d 774 (La.App. 1975), the court held that the chief of police has the "power to supervise the operation of the police department and assign its personnel and equipment. . ." Cogswell, at page 779.
Thus, in our opinion, the mayor's directive to a police officer to issue a citation would infringe upon the chief of police's inherent power to supervise the operation of his department. This inherent power includes the power to supervise police personnel.
You further advise in your letter that funds for animal control have been allocated to the police department by the mayor and board of aldermen. It is appropriate here to cite jurisprudence governing an elected chief of police, the mayor, and the board of aldermen concerning expenditures of monies designated for use by the police department. In Doyle v. City of Harahan, 610 So.2d 272 (La.App. 5th Cir. 1992), the court concluded:
We hold that once the mayor and aldermen have budgeted and appropriated money for the police department, the authority to allocate the expenditure of these funds rests with the elected chief of police. Doyle, supra, at page 273.
Once funds are allocated the police department, the chief of police and not the mayor retains control over said funds. Thus, having been approved as part of the police department budget, these funds are subject to administration by the chief of police.
Please also note that in general a police officer has discretion in determining whether or not reasonable grounds exist for a misdemeanor arrest and that he may issue a citation for an animal control violation in lieu of arrest. See C.Cr.P. Art 213 C.Cr.P. Art 211.
Art. 213. Arrest by officer without warrant; when lawful
A peace officer may, without a warrant, arrest a person when:
(1) The person to be arrested has committed an offense in his presence; and if the arrest is for a misdemeanor, it must be made immediately or on close pursuit;
(2) The person to be arrested has committed a felony, although not in the presence of the officer;
(3) The peace officer has reasonable cause to believe that the person to be
arrested has committed an offense, although not in the presence of the officer; or
(4) The peace officer has received positive and reliable information that another peace officer from this state holds an arrest warrant, or a peace officer of another state or the United States holds an arrest warrant for a felony offense.
A peace officer in close pursuit of a person to be arrested, who is making an arrest pursuant to this Article may enter another jurisdiction in this state and make the arrest.
Art. 211. Summons by officer instead of arrest and booking
A. When it is lawful for a peace officer to arrest a person without a warrant for a misdemeanor, or for a felony charge of theft or illegal possession of stolen things when the thing of value is one hundred dollars or more but less than five hundred dollars, he may give a written summons instead of making an arrest if all of the following exist:
(1) The officer has reasonable grounds to believe that the person will appear upon summons;
(2) The officer has no reasonable grounds to believe that the person will cause injury to himself or another or damage to property or will continue in the same or a similar offense unless immediately arrested and booked;
(3) There is no necessity to book the person to comply with routine identification procedures.
(4) If an officer issues a summons for a felony described in this Paragraph, the officer issuing the summons shall ascertain that the person has no prior criminal convictions.
B. In any case in which a summons has been issued, a warrant of arrest may later be issued in its place.
A police officer may not ignore or neglect his duty to issue citations for animal control violations, as such could prove violative of R.S. 14:134 concerning malfeasance in office.
§ 134. Malfeasance in office
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.
Finally, please note that there is a great distinction between the authority of an elected chief of police and a chief of police who holds an appointed office. In the latter situation, the mayor administers the police department and may compel a police officer to follow "a reasonable directive of the mayor." See Attorney General Opinions 01-327 and 01-407, copies enclosed.
Very truly yours,
CHARLES C. FOTI, JR.
ATTORNEY GENERAL
BY: _____________________________________
KERRY L. KILPATRICK
ASSISTANT ATTORNEY GENERAL
KLK:ams
OPINION NUMBER 01-327
September 20, 2001
77 Officers — Local Municipal R.S. 33:381 R.S. 33:423
Discusses authority of Mayor of Cheneyville over the appointed Chief of Police and his Department.
Mayor Robert L. Cox, Jr. Town of Cheneyville P.O. Box 322 Cheneyville, LA 71325
Dear Mayor Cox:
This office is in receipt of your request for an opinion of the Attorney General in regard to the authority of the Mayor when there is an appointed Chief of Police. You indicate the Town now has an appointed Chief of Police and issues have arisen during the transition from an elected to an appointed Chief of Police. You ask the following questions:
1. Does the Mayor have authority to hire, fire and suspend police officers, other than the Chief, for cause, without receiving a recommendation to do so from the appointed Chief?
2. What are the duties of an appointed Chief?
3. Can the Mayor devise and place into effect the policies and procedures to be followed by police department personnel, including the appointed Chief of Police? If so, does the Mayor need approval of the Board of Aldermen on these policies and procedures?
4. Can the Mayor set the work schedules of police department personnel, other than the appointed Chief?
5. Can the Mayor and Board of Aldermen mandate a specific work schedule for the Chief of Police?
6. If a police officer, other than the appointed Chief, intentionally fails to follow a reasonable directive from the Mayor, can the Mayor suspend or terminate the officer for insubordination?
7. Do the officers hired under an elected Chief of Police retain their employment or must they be rehired once the transition from elected to appointed chief occurs?
In response to your questions we find the following statutes are pertinent:
R.S. 33:381(C) (19) Municipal officers
Notwithstanding any other provision of law to the contrary, the office of police chief in the town of Cheneyville shall be an appointive and not an elective office. The mayor, with the approval of the board of aldermen, shall appoint the police chief. If there is an elected chief in office on April 19, 2000, the mayor shall make the first such appointment upon the expiration of the current term or vacancy for other reason; otherwise, he shall make the first appointment immediately. The board of aldermen, upon recommendation of the mayor, shall establish the chief's salary and shall, by ordinance, establish the duties, responsibilities, and qualifications of the office. The police chief's term of office shall be concurrent with that of the appointing mayor and aldermen. The mayor shall, in accordance with such ordinances, supervise and direct the administration of the office, and the chief shall report directly to the mayor. (Emphasis added.)
R.S. 33:423 — Duties of marshal
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. In those municipalities governed by the provisions of this Part, R.S. 33:321 et seq., which have a chief of police elected by the qualified voters thereof, he shall make recommendations to the mayor and board of aldermen for appointment of police personnel, for promotion of officers, to effect disciplinary action, and for dismissal of police personnel. Such nominations or recommendations are to be made regardless of race, color, disability, as defined in R.S. 51:2232(11), or creed.
First, while R.S. 33:404 sets forth in general the duties of a mayor for a Lawrason Act community, and authorizes him "to supervise and direct the administration and operation of all municipal departments, offices and agencies, other than a police department with an elected chief of police, in conformity with ordinances adopted by the board of aldermen and with applicable provisions of state law", we find that the provisions of R.S. 33:381(C) (19) are specifically applicable to the town of Cheneyville. Therein it is provided that the board of aldermen shall, by ordinance, establish the duties, responsibilities, and qualifications of the office for appointed chief of police, and that the "mayor shall, in accordance with such ordinances, supervise and direct the administration of the office, and the chief shall report directly to the mayor."
We note in Atty. Gen Op. 83-11 this office found no distinction between the power of an elected and an appointed chief except that an elected chief is given the power to make recommendations to the mayor and board of aldermen concerning the appointment of police personnel. Accordingly, we would conclude that the mayor has authority to hire, fire and suspend police officers without receiving a recommendation from the appointed chief.
With regard to your question of what are the duties of the appointed chief, we find they would be that established by ordinance by the board of aldermen as authorized by R.S. 33 381(C) (19). However, despite the authorization for the board of aldermen to establish the duties, and responsibilities of the chief, we recognize, in accordance with R.S. 33:423, that the chief of police has general responsibility for law enforcement in the municipality.
Pursuant to the provisions of R.S. 33:381 that the mayor "shall supervise and direct the administration of the office", we find he can devise and place into effect the policies and procedures to be followed by the police department personnel including the chief, but this must not be in conflict with the ordinances established by the Board of Aldermen for the duties and responsibilities of the chief, or his decisions in the exercise of his inherent power of general law enforcement of state and municipal laws. As concluded by this office in Atty. Gen. Op. 87-682 the authority to enforce all ordinances and laws includes the grant of certain inherent powers which are necessary for him to effectively carry out his duties, and with reliance upon Lentini v. City of Kenner, 211 So.2d 311, (La. 1968) found that the chief of police by the grant of these inherent powers is given the authority to control city police property and assign personnel.
Additionally, we conclude under R.S. 33:381 that the mayor may set the work schedules of the police department personnel, and can mandate a specific work schedule for the chief who is mandated to report directly to the mayor as long there is no conflict with any relevant ordinances, or the statutory provision that the chief is responsible for law enforcement of the municipality.
Having the authority to "direct the administration of the office", we believe the mayor can suspend or terminate a police officer who fails to follow a reasonable directive of the mayor acting under his statutory mandate to supervise and direct the administration of the office, and the requirement that the chief shall report directly to the mayor.
We find no mandate that the police officers hired under the elected chief of police must be rehired once the transition from an elected to an appointed chief occurs. The change to an appointed chief of police would not mean all police officers in the prior administration are terminated and must be rehired, although we would conclude those from the prior administration may be terminated by the mayor who directs the administration of the police department, and to whom the chief must directly report.
We hope this sufficiently answers your questions, but if we can be of further assistance, do not hesitate to contact us.
Very truly yours,
RICHARD P. IEYOUB Attorney General
By: __________________________ BARBARA B. RUTLEDGE Assistant Attorney General
RPI/bbr
OPINION NUMBER 01-407
October 31, 2001
SYLLABUS
77 OFFICERS R.S. 33:381(C)(19) and R.S. 33:404 Ordinance purporting to limit authority of mayor regarding the hiring and firing of municipal employees violates statute delegating such authority solely to the mayor.
Honorable Robert L. Cox, Jr. Mayor, Town of Cheneyville P.O. Box 322 Cheneyville, LA 71325
Dear Mayor Cox:
You advise this office that a conflict has arisen between you in your capacity as mayor of the Town of Cheneyville and the board of aldermen. Specifically, the board has reinstated a police officer whose employment was terminated by you.
The Town of Cheneyville is a Lawrason Act Municipality, and is governed by the following provisions pertinent to this matter, specifically, R.S. 33:381(C)(19) and R.S. 33:404 providing:
§ 381. Municipal officers
(19) Notwithstanding any other provisions of law to the contrary, the office of police chief in the town of Cheneyville shall be an appointive and not an elective office The board of aldermen, upon recommendation of the mayor, shall establish the chief's salary and shall, by ordinance, establish the duties, responsibilities, and qualifications of the office. The police chief's term of office shall be concurrent with that of the appointing mayor and aldermen. The mayor shall, in accordance with such ordinances, supervise and direct the administration of the office, and the chief shall report directly to the mayor. (Emphasis added).
* * * * *
§ 404. Duties of the mayor
A. The mayor shall have the following powers, duties, and responsibilities;
(1) To supervise and direct the administration and operation of all municipal departments, offices, and agencies, other than a police department with an elected chief of police, in conformity with the ordinances adopted by the board of aldermen and with applicable provisions of state law; however, no such ordinance may limit the authority granted to the mayor by this Paragraph. All administrative staff shall be subordinate to the mayor.
(2) To delegate the performance of administrative duties to such municipal officers or employees as he deems necessary and advisable.
(3) Subject to applicable state law, ordinances, and civil service rules and regulations, to appoint and remove municipal employees, other than the employees of a police department with an elected chief of police. However, appointment or removal of a non-elected chief of police, the municipal clerk, the municipal attorney, or any department head shall be subject to approval by the board of aldermen, except that in the case of a tie vote, the recommendation of the mayor shall prevail. Furthermore, selection or removal of any person engaged by a municipality to conduct an examination, review, compilation, or audit of its books and accounts pursuant to R.S. 24:517 shall be subject to approval by the board of aldermen of that municipality. (Emphasis added).
Interpreting the foregoing statutes, we conclude that the board of aldermen are without authority to adopt an ordinance making the hiring, firing, and suspension of all city employees (including police personnel) contingent upon the board's approval. Such an ordinance is in conflict with R.S. 33:404(A)(1), stating that while the mayor directs the operation of all municipal departments "in conformity with ordinances adopted by the board of aldermen", the statute further mandates that "no such ordinance may limit the authority granted to the mayor." Such an action by the board of aldermen is in violation of R.S. 33:404(3), which gives the mayor the authority "to appoint and remove municipal employees."
We continue to adhere to our previous conclusion in Attorney General Opinion 01-327, specifically, that the mayor directs the administration of the Cheneyville police department. Inasmuch as the department has an appointed chief of police, the authority to hire, fire, and suspend police officers rests solely with the mayor and may not legally be contradicted by the board. The action of the board to reinstate this officer is without effect, and the ordinance purporting to limit the mayor's authority in this regard is invalid.
Very truly yours,
RICHARD P. IEYOUB ATTORNEY GENERAL
BY: __________________________ KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL
KLK:ams