Opinion Number

Dear Mayor Poche':

This office is in receipt of your request for an opinion of the Attorney General in regard to appointment of the Fire Chief for Lutcher Volunteer Fire Department. While the Town of Lutcher is a Lawrason Act municipality, the by-laws of the Volunteer Fire Department provide that the membership of the fire department shall select the position of fire chief. You ask whether the Mayor, subject to approval of the Board of Aldermen, can appoint a new fire chief and remove the present one without cause.

Our research indicates that Lutcher has less than the 7,000 population required under R.S. 33:2531 for fire civil service, and have been informed that the Fire Chief for the Lutcher Volunteer Fire Department is not paid. We note that previous opinions of this office found that an unpaid Fire Chief of a Volunteer Fire Department is neither a public office nor employment. Atty. Gen. Op. Nos. 97-104, 84-632, 80-1466. Similarly, in Atty. Gen. Op. No. 90-521 it was concluded that the volunteer fire department was not a public office inasmuch as there was no oath of office or bond required for members, and, it was further observed that the fire chief was not appointed to a position established by law but selected by the volunteer membership without having to be confirmed by the Board or any other public entity.

However, if the municipal fire department is established by official action of the governing authority, the fire department would necessarily come within the supervision and control of the mayor and board of aldermen. R.S. 33:404 charges the mayor with the duty to supervise and direct the administration and operation of all municipal departments, offices and agencies, and authority to appoint all department heads subject to approval of the board.

The determinative issue then is whether the volunteer fire department is a department that has been established by the municipality, or one incorporated by the volunteers and basically privately funded. Questions to be considered are what public funds, if any, are provided to the department, and what control is exercised over actions of the department. As concluded by this office in Atty. Gen. Op No 93-348, a volunteer fire department may be considered a quasi-public body where it receives public funds in a budget for such things as expenses of the fire department as utilities, maintenance, truck gas and repair, and other equipment, and the municipality exercises an element of control over the department.

Consequently, unless the department is actually a public body, the mayor would not appoint the fire chief. However, the status of the department is a question of fact to be reached from the guidelines set forth such as manner in which the department was created, public funding and exercise of control, if any, by the town, and we have no information on these facts to reach a conclusion.

We hope this sufficiently answers your inquiry, but if 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

Date Received: Dec. 21, 1998 Date Released:

BARBARA B. RUTLEDGE Assistant Attorney General