Dear Mr. Dahmer:
We are in receipt of your request for an expedited opinion regarding a vacancy in the office of Mayor of the City of Hammond. Your letter states the following facts:
1. The elected Mayor recently died on January 1, 1998.
2. The present term of office will expire on December 31, 1998.
3. The City of Hammond operates under a home rule charter, adopted in 1977.
You seek our opinion on the following questions:
1. When will the election for a new Mayor for the City of Hammond be held?
2. How long (until what date) will the appointed Mayor serve?
In responding to your request, we first look to the Louisiana Election Code, Part VII, on the filling of vacancies. R.S.18:602 provides in general for the filling of vacancies in certain local an municipal offices. R.S. 18:602(G) states:
The provisions of this Section [R.S. 18:602] shall apply to all local governmental subdivisions, including those operating under the provisions of a legislative charter, but shall not apply where the filling of a vacancy otherwise is provided for by the constitution or by the home rule charter or home rule plan of government of the affected local governmental subdivision. Such constitutional home rule plan provisions shall govern the filling of the vacancies. (Emphasis added.)
Therefore, we turn to the Charter for the City of Hammond for the filling of vacancies in the office of Mayor. Article III of the Charter provides:
Section 3-04. Vacancies.
A. The office of mayor shall become vacant upon the death, resignation, removal from office in any manner authorized by law, forfeiture of office by the officeholder or failure to take office for any reason.
* * *
C. If a vacancy in the office of mayor occurs more than six (6) months prior to the expiration of the term of office, the director of administration shall serve as acting mayor until the office is filled by the vote of the qualified electors voting in a special election called by the council for that purpose, provided that said election shall be held within sixty (60) days after such vacancy occurs. If six (6) months or less of the unexpired term remain when the vacancy occurs, the office of mayor shall be filled by the director of administration serving as acting mayor for the remainder of the term. (Emphasis added.)
We must look to the election code for possible dates for conducting a special election. R.S. 18:402(E) provides for the dates on which special elections may be called, requiring at least 12 weeks between the date of the proclamation and election date. The first available special election date that complies with the 12 week requirement is April 4, 1998 for a primary election, that is, if the proclamation is issued before January 10, 1998.
However, this date does not meet the requirement of the charter that the election shall be held within 60 days after the vacancy occurs. It is our opinion that those provisions of the charter that are in conflict with the election code, such as the 60 day requirement for an election, must yield; however, the remainder of the charter shall be followed regarding the vacancy herein.
Therefore, in accordance with the charter, it is our opinion that the director of administration shall serve as acting mayor until the office of mayor is filled by special election. If the council issues a call for the election by January 10, 1998, the special election may be scheduled for April 4, 1998 (primary), May 2, 1998 (general), with qualifying February 11-13, 1998.
We note that the regular election for the four year term of the office of mayor will be held as scheduled in the fall of 1998, and therefore, the person elected at the special election will only serve for the remainder of the present term, thru December 31, 1998. If we can be of further assistance, please advise.
Yours very truly,
RICHARD P. IEYOUB ATTORNEY GENERAL
ANGIE ROGERS LAPLACE Assistant Attorney General
RPI/ARL:cwr
cc: City Council, City of Hammond Tom Anderson, City Attorney
DATE RECEIVED:
DATE RELEASED: January 6, 1998