Opinion Number

Dear Mr. Bennett:

You have submitted two questions to this office for review, specifically, (1) may the fire chief be a member of the fire district board, and (2) may an alderman serve on the fire district board?

In response to your first question, the fire chief, who holds a position of employment with the fire protection district, may not also serve on the board which governs that district. In other words, he may not legally serve as a member of the board which employs him. These facts invoke application of the incompatibility provisions of R.S. 42:64 (A)(4) and (6) of the Louisiana Dual Officeholding and Dual Employment Laws, specifically providing:

A. In addition to the prohibitions otherwise provided in this Part, no other offices or employments shall be held by the same person in combination if any of the following conditions are found to pertain and these prohibitions shall exist whether or not the person affected by the prohibition exercises power in conjunction with other officers.

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(4) The incumbent of one office, whether or not in conjunction with fellow officers, or employment is required by law to execute orders and follow directions given by the incumbent of the other office or employment.

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(6) Funds received by one office or employment are deposited with or turned over to the other office or position.

In response to your second question, an alderman of the Town of Jonesville may only serve on the board if he is appointed by the parish governing authority. The Catahoula Fire Protection District No. 1 is a political subdivision of the state, and a creature of the police jury. See R.S. 40:1492. Further, R.S. 40:1496 (B)(4) concerning appointment to the board of commissioners provides:

(4) In any case where three or more municipalities are included within the boundaries of a district lying within a single parish, the parish governing authority shall appoint two members and the governing authority of each municipality shall appoint one member notwithstanding the provisions of Subsection A herein. The members so appointed shall elect the chairman of the board.

As the statute dictates, the Town of Jonesville appoints one member, while the parish governing authority appoints two members to the board. The appointment of an alderman by the municipality to the board invokes the incompatibility provisions of R.S. 42:64 (A)(1), providing in part:

A. In addition to the prohibitions otherwise provided in this Part, no other offices or employments shall be held by the same person in combination if any of the following conditions are found to pertain and these prohibitions shall exist whether or not the person affected by the prohibition exercises power in conjunction with other officers:

(1) The incumbent of one of the offices, whether or not in conjunction with fellow officers, or employment has the power to appoint or remove the incumbent of the other, except that local governmental subdivisions may appoint members of the governing body to boards and commissions created by them and over which they exercise general powers as provided in Article VI, Section 15 of the Constitution of Louisiana . . . (Emphasis added).

The exception of R.S. 42:64 (A)(1) which permits the local governing authority to appoint its membership to boards or commissions "created by them" is inapplicable here as the fire protection district is a creature of the parish and not the municipality.

Thus, an alderman may not be appointed by the board of aldermen to serve because of the prohibition of R.S. 42:64 (A)(1), but may be appointed by the parish governing authority because of the exception contained in R.S. 42:64 (A)(1). See also Attorney General 02-0017, copy attached.

Very truly yours, CHARLES C. FOTI, JR. ATTORNEY GENERAL

BY: ____________________ KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL

OPINION NUMBER 02-0017

February 26, 2002

78 DUAL OFFICEHOLDING R.S. 42:63; R.S. 42:62; R.S. 42:64; R.S. 40:1492; R.S. 40:1496(B)(4)

Mayor may serve as part-time appointed commissioner of fire protection district board, if he is appointed by the parish governing authority.

Honorable James T. Fontenot Mayor 372 Mission Drive Post Office Box 145 Simmesport, LA 71369