Opinion
April 28, 2009.
77 Officers — Local Municipal; Selection, Qualification Tenure; vacancies
84 Parishes
Summary: Ex officio board members have the same rights and privileges as do all other members of the board, including the right to vote, unless expressly stated otherwise in the language creating the board and its membership. Relevant documents should be closely examined to determine the voting authority of an ex-officio member.
Mr. Leon C. Vial III Director of Legal Services St. Charles Parish P.O. Box 321 Hahnville, LA 70057
Dear Mr. Vial:
On behalf of the St. Charles Parish Council, you have asked this office for a definition of "ex officio" as it relates to the rights and privileges of ex officio members of parish boards. In particular, the Parish Council would like to know if ex officio members of parish boards have the right to vote.
We begin with definitions found in Louisiana jurisprudence. In Lobrano v. Policy Jury of Parish of Plaquemines, 150 La. 14, 90 So. 423 (La. 1921), the question before the La. Supreme Court was whether Act 21 of 1912 created an office separate from the sheriffs office. Language in the Act mandated that clerks of district courts also be the ex officio registrars of voters in their parishes. The court concluded that no separate office was created; all that was done was to transfer to the clerks the functions previously associated with the registrars of voters. The court based its conclusion in part on the following definitions of ex officio:
18 Cyc. 1500, defines the term `ex officio' as follows: `From office; by virtue of the office. Without out any other warrant or appointment than that resulting from the holding of a particular office.'
12 A. E. Enc. of Law, p. 391, defines the term as follows: `From office; by virtue of office; officially. A term applied to an authority derived from official character merely, not expressly conferred upon the individual, but rather annexed to the official position; also used of an act done in an official character, or a consequence of office, and without any other appointment or authority than that conferred by the office.'
Additionally, the court in Board of Trustees, Louisiana Assessors' Retirement Fund v. Montgomery, State Tax Collector, 57 So.2d 58 (La.App. Orleans 1952), in analyzing the application of a statute providing that the sheriff shall be the ex officio tax collector of the parish, discussed the meaning of the phrase "sheriff and ex-officio tax collector", providing the following:
The phrase `sheriff and ex-officio tax collector' simply means that the sheriff, by virtue of holding that office, is the tax collector. Therefore, in the final analysis, there is no fundamental distinction between the functions of either office, we reiterate, insofar as the collection of taxes is concerned.
Based on the above, we see that "ex officio" means "from the office" or "by virtue of the office" and is used to describe someone who holds one position by virtue of holding another position. A person holding an ex officio position has the same rights, privileges and duties incumbent on an appointed or elected person in that position. Although the these cases pertain to sheriffs and clerks of court, it is the opinion of this office that the definitions are the same for ex officio members of parish boards; and therefore, ex officio members of parish boards have the same rights, privileges and duties as all members of the board, including the right to vote.
However, ex officio members may be expressly denied voting rights in the act or resolution creating their memberships. As we discussed in our telephone conversation, one example of an express limitation on voting rights can be seen in the St. Charles Parish Home Rule Charter, Article III, § C(4)(a), which provides as follows:
4. Planning and Zoning
a. The planning commission heretofore created by the St. Charles Parish Police Jury shall continue in existence, and the members thereof holding office on the effective date of this Charter shall each continue to hold office until the expiration of the term for which he was appointed. As the terms of these members expire, their successors shall be appointed by the parish council. In addition to the members already appointed, the council shall designate that one of its members, a member of the parish school board designated by the school board and the parish president or an administrative employee designated by him shall serve as ex-officio, non-voting members of the commission. Each person so designated shall serve at the pleasure of the body or official who appointed him. [Emphasis added]
Based on the express language in this section, ex officio members of the parish planning commission do not have the right to vote. However, absent express language limiting the voting rights of ex officio members of parish boards, they have the same right to vote as the other members.
We trust this adequately addresses your question. If you have any additional questions or concerns, please contact our office.
With kindest regards,
Yours very truly,
JAMES D. "BUDDY" CALDWELL Attorney General
__________________________ DENISE BROU FITZGERALD Assistant Attorney General
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