Opinion
SEPTEMBER 3, 1998
77 — OFFICERS LSA-R.S. 33:384 LSA-R.S. 33:385 In a Lawrason Act municipality an alderman must remain a resident of the district from which he is elected in order to retain the qualifications of office.
Chief Warren Keith Thomas, Sr. Sterlington Police Department P.O. Box 642 Sterlington, LA 71280
Dear Chief Thomas:
In a Lawrason Act municipality, such as the Town of Sterlington, an alderman must be an elector of the municipality and must have been domiciled for at least the immediately preceding year in the municipality. Further, an alderman must retain a residence within the particular district from which he is elected in order to retain the qualifications of office. The statutes governing this matter are found within LSA-R.S. 33:384, and 33:385, providing:
§ 384. Qualifications of mayor
The mayor shall be an elector of the municipality who at the time of qualification as a candidate for the office of mayor shall have been domiciled and actually resided for at least the immediate preceding year in the municipality.
* * *
§ 385. Qualifications of alderman; vacancies, office holding; contracting
A. The qualifications of the alderman shall be the same as are prescribed for the mayor, and in addition, those elected from wards must be residents of their respective wards.
The Board of Aldermen may declare a seat vacant and appoint a qualified person to fill the vacancy where an alderman moves out of the district from which he is elected. See Attorney General Opinion 92-350, attached.
Very truly yours,
RICHARD P. IEYOUB ATTORNEY GENERAL
BY: __________________________ Kerry L. Kilpatrick Assistant Attorney GeneralState of Louisiana DEPARTMENT OF JUSTICE Baton Rouge RICHARD P. IEYOUB 70804-9005 P.O. Box 94005 ATTORNEY GENERAL TEL: (504) 342-7013 FAX: (504) 342-7335
MAY 28, 1992
OPINION NUMBER 92-350
OPINION NO. 92-350 71 MUNICIPALITIES 77 OFFICERS Mr. Ray Rush 102 South Tenth Street LSA R.S. 33:321 et.seq.; Post Office Box 688 33:385; 18:581; 18:581(1); Art. Oakdale, Louisiana 71463 VIII, Sec. 3 of 1921 Const.; 18:602(A) Where an alderman moves out of the district from which he is elected, the Board of Aldermen may declare the seat vacant and appoint a qualified person to fill the vacancy pursuant to the provisions of the Election Code.
Dear Mr. Rush:
We are in receipt of your opinion request dated May 14, 1992 directed to Attorney General Richard P. Ieyoub. The request has been assigned to me for research and reply.
In your letter dated May 14, 1992, you state that an alderman of the City of Oakdale was elected from and represents a single district. This alderman has physically moved out of his district, but maintains his residence within the Oakdale corporate limits. The facts related raise the issue of whether or not the alderman's actions have created a vacancy in his office. Further, you inquire as to the appropriate action to be taken by the Board of Aldermen if it is determined that a vacancy exists.
The Town of Oakdale is a Lawrason Act municipality and the provisions of LSA-R.S. 33:321, et. seq. apply. LSA-R.S. 33:385 lists the qualifications for the office of alderman and states, in pertinent part:
"The qualifications of the aldermen shall be the same as are prescribed for the mayor, and in addition, those elected from wards must residents of their respective wards. LSA-R.S. 33:385 (A); (Emphasis added).
LSA-R.S. 18:581 defines the term "vacancy" in an elective office and provides, in pertinent part:
"A 'vacancy' occurs in an elective office . . . . . when the person elected to or holding the office no longer meets the residence or domicile requirements of that office, any declaration of retention of domicile to the contrary notwithstanding. LSA-R.S. 18:581(1); (Emphasis added).
Article VIII, Section 13 of the 1921 Louisiana Constitution provided that an alderman's office would become vacant should the incumbent move from the district or ward from which he was elected. Although this provision was not carried forward in the 1974 Constitution, we are of the opinion that this requirement has been retained by statute.
One of the qualifications of any alderman in a Lawrason Act municipality is that the alderman remain a resident of the ward from which he is elected. See Attorney General Opinion Number 80-1171. An alderman who maintains his residence within the corporate limits but outside the territorial boundaries of the ward from which he is elected fails to meet this statutory requirement. We are further of the opinion that the term "ward" as used in LSA-R.S. 33:385 (A) encompasses the term "district". This conclusion is supported by the provisions of LSA-R.S. 18:2 (6), which defines "voting district" as follows:
"Voting district" means a geographical area composed of one or more precincts in a parish in which every elector within that area votes in the same congressional district, statewide board or commission district, judicial district, Senate District, House of Representative District, parish governing authority district, local and ward office district, municipal office district, and all other special election districts." (Emphasis added).
This office has previously stated that when a local official moves from the district from which he is elected, the local governing authority may declare the office vacant. See Attorney General Opinion Numbers 80-1171 and 77-1172, copies of which are attached.
From your letter we assume the alderman has moved his domicile outside the district. It is important to note that the terms "residence" and "domicile" are not synonymous. A person can have several residences, but only one domicile. Wilson v. Butler, 513 So.2d 304 (La.App. 1st Cir. 1987). The fact that a residence is maintained for political purposes does not itself prevent the residence from being actual and bona fide. However, there must be actual, physical use or occupation of quarters for living purposes before residence is established.
Williamson v. Village of Baskin, 339 So.2d 474 (La.App. 2d Cir. 1977); writ den.; 341 So.2d 1126 (La. 1977). For this reason, the Board of Aldermen of Oakdale as governing body must carefully consider whether the alderman in question retains a residence within the district.
If the determination is made by the Board of Aldermen that the alderman in question no longer meets the statutory residency requirements, the Board of Aldermen has cause to declare the position vacant. See Attorney General Opinion Number 81-315, attached. The alderman's position does not become vacant merely because the official has moved; the vacancy must be declared by the Board of Aldermen or a court. Williamson, supra.
LSA-R.S. 33:385 (B) dictates that the provisions of LSA-R.S. 18:602 be followed where a vacancy in the office of alderman is declared. The Board must appoint a person to fill the vacancy who meets the qualifications of the office. The appointment must be made within ten days of the vacancy, LSA-R.S. 18:602 (A). If the unexpired term exceeds one year, the board must issue a proclamation calling for a special election to fill the vacancy and replace the temporary appointee. This proclamation also must issue within ten days of the vacancy.
In summary, the Board of Aldermen must examine all facts presented in accordance with the authority cited herein and determine whether the alderman in question meets the residency requirements mandated by LSA-R.S. 33:385. Should the Board declare that a vacancy has occurred, the Board must then timely appoint a qualified individual to fill the position, and issue a proclamation calling for a special election, if the circumstances so require.
We hope this interpretation of the law will be helpful to you. Should you have further questions regarding this matter, please contact our office.
Yours very truly,
RICHARD P. IEYOUB Attorney General
BY: __________________________ Kerry L. Kilpatrick Assistant Attorney General RPI/KLK/ams
State of Louisiana
DEPARTMENT OF JUSTICE Baton Rouge WILLIAM J. GUSTE, JR. 70804 ATTORNEY GENERAL
March 10, 1981 Rel. 3/16/81
OPINION OPINION NUMBER 81-315
40: 77. Discussion of procedure in declaring vacancy and call of special election.
Honorable L.B. Jackson, Mayor, Lake Providence, 200 Sparrow St. 33:385; 18:602(A)
Honorable L. B. Jackson Mayor, Town of Lake Providence 200 Sparrow Street Lake Providence, Louisiana 71254
Dear Mayor Jackson:
Reference is made to your letter of March 5, 1981, in which you requested our opinion on whether a vacancy in the office of aldermen arises when a duly elected alderman sells his home within the territorial limits of the municipality and removes without those limits to reside. You indicated the alderman now resides approximately three miles outside the corporate limits.
The Town of Lake Providence is a Lawrason Act municipality. The qualifications of alderman are provided at R.S. 33:385, which states in pertinent part:
The qualification of the aldermen shall be same as are prescribed for the mayor, and in addition, those elected from wards must be residents of their respective wards . . .
The qualifications for mayor are stated at Section 384:
The mayor shall be a qualified elector of the municipality, and he must have been a resident of the parish for two years.
In Attorney General Opinion No. 77-1113, which citedWilliamson v. Village of Baskin, 339 So.2d 474 (La.App. 2d Cir., 1976), we opined ". . . we are of the opinion that an alderman's position does not become vacant merely because the official moves outside the municipality. In such case, however, the town council may declare the position vacant." In other words, the removal of the alderman outside the municipal limits is cause for declaring his position vacant; the vacancy, however, must be declared by the board of aldermen or a court. (Accord, Attorney General Opinion Nos. 78-1310 and 80-1171.)
R.S. 18:602 (A) provides, when a vacancy occurs (when the vacancy is declared) the governing authority of the municipality must appoint a person to fill the vacancy who meets the qualifications of office within ten days. The appointee then must be an elector of the municipality, a resident of the parish for two years, and a resident of the ward he is to represent at the time of his appointment.
Moreover, if the unexpired term of the alderman removed from office exceeds one year, the governing authority, within ten days of the vacancy, must issue a proclamation calling a special election. [R.S. 18:602 (E)]. If a special election is required, it must be set in accordance with R.S. 18:402.
Accordingly, it is our opinion when an alderman leaves the municipality, establishing a residence out of town, the local governing authority may declare a vacancy in the office. Within ten days after this declaration, the board of aldermen must appoint a person to fill the vacancy possessing the qualifications of office. Finally, if the unexpired portion of the term exceeds one year, the local governing authority must, within ten days of the declaration of the vacancy, issue a proclamation calling a special election.
Very truly yours,
WILLIAM J. GUSTE, JR. Attorney General
BY: __________________________ CHARLES L. PATIN, JR. Assistant Attorney General
CLP/cr
State of Louisiana
DEPARTMENT OF JUSTICE Baton Rouge WILLIAM J. GUSTE, JR. 70804 ATTORNEY GENERAL September 9, 1980
OPINION NUMBER 80-1171
77 ... OFFICERS — LOCAL MUNICIPAL — Selection, Qualifications Tenure; Vacancies 33 ... ELECTIONS — SPECIAL ELECTIONS Honorable J. Andrus Barousse Clerk of Court When alderman moves from his Parish of Acadia ward, local governing authority Post Office Box 922 may declare vacancy and fill Crowley, Louisiana 70526 according to Election Code. R.S. 33:383 R.S. 18:602 R.S. 18:402
Dear Mr. Barousse:
In your letter of September 4, 1980, you requested an opinion regarding residency requirements for aldermen. Specifically, you asked if a vacancy is created when an alderman moves from the ward in which he was elected.
The qualifications for aldermen are set forth in R.S, 33;383. That statute provides in part;
"The qualifications of the aldermen shall be the same as are prescribed for the mayor, and in addition, those elected from wards must be residents of their respective wards." (Emphasis supplied)
Attorney General's Opinion No. 77-1113 considered a similar situation. The opinion cited Williamson v. Village of Baskin, 339 So.2d 474 (2nd Cir. 1976), and concluded, "...we are of the opinion that an alderman's position does not become vacant merely because the official moves outside the municipality. In such cases however, the town council may declare the position vacant". The vacancy is not crested until it is officially declared by the appropriate authority.
Pursuant to R.S. 18:602, when a vacancy occurs in a local or municipal office, the local governing authority must appoint a person to fill the vacancy. The appointee must meet the qualifications of the office. In the case of an alderman, he must be a qualified elector of the town and a resident of the parish for two years; an alderman must also be a resident of the ward from which he is elected.
When a vacancy is declared and an appointee is named for the office of alderman, the local governing authority must, within ten days, issue a proclamation calling for a special election, if the unexpired term exceeds one year. However, if the unexpired term for the office is one year or less, the appointee designated to assume the duties of the office will serve for the remainder of the unexpired term. When a special election is necessary, the election date must conform to the provisions of R.S. 18:402.
In conclusion, when an alderman moves from the ward in which he was elected, the local governing authority may declare the office vacant. If the unexpired term exceeds one year, a special election must be held; otherwise the person appointed to assume the office will serve the remainder of the term.
Sincerely,
WILLIAM J. GUSTE, JR. ATTORNEY GENERAL
BY: Kenneth C. DeJean KENNETH C. DEJEAN ASSISTANT ATTORNEY GENERAL
KCD:lg
State of Louisiana
DEPARTMENT OF JUSTICE Baton Rouge WILLIAM J. GUSTE, JR. 70804 ATTORNEY GENERAL
August 19, 1977
OPINION NO. 77-1172
77-1172 77 — OFFICERS: Local Municipal; Selection, qualifications Tenure; Vacancies 1974 La. Constitution, Article X, Section 28
An alderman's position does not automatically become vacant upon his moving from the district from which he was elected. Such a move does, however, give the town council grounds to declare the office vacant.
Honorable James M. Dozier, Jr. City Attorney Town of Farmerville P.O. Box 66 Farmerville, Louisiana 71241
Dear Mr. Dozier:
Your opinion request of August 17, 1977, has been assigned to me for reply. In that request you state the Town of Farmerville was recently reapportioned and divided into single member districts for local government purposes. The town council passed an ordinance amending the special charter of Farmerville to provide for the election of aldermen by district. The ordinance further states that each member of the council must have resided in the district thirty days prior to qualifying. You ask if an alderman automatically vacates his office upon moving from one district to another.
As you correctly stated in your request, Article VIII, Section 13 of the 1921 Louisiana Constitution, which provided that an alderman's office would become vacant should the incumbent move from the district or ward from which he was elected, was not carried forward in the 1974 constitution.
The only applicable constitutional provision at this time is Article X, Section 28 of the 1974 Louisiana Constitution which defines a vacancy as follows:
"A vacancy, as used in this constitution, shall occur in the event of death, resignation, removal by any means, or failure to take office for any reason."
The Second Circuit Court of Appeals construed this provision in Williamson v. Village of Baskin, 339 So.2d 474, writs denied 341 So.2d 1126. The Court said, "The fact of change of residence may, ipso facto, automatically give grounds for having an office declared vacated and the officer removed, but it cannot be said that the office is vacated until such is declared by a court or other authorized official or governing body."
The special charter of Farmerville obviously does not provide for the situation of an alderman moving from the district from which he was elected. In such an instance, this office is of the opinion a court would probably follow Williamson v. Village of Baskin, supra, and hold the office is not automatically vacated. The town council, however, could declare the office vacant.
I have enclosed copies of several recent opinions regarding this matter. Although most of these opinions are to Lawrason Act municipalities, they may be of some help to you.
If we can be of further assistance, please contact us.
Sincerely,
WILLIAM J. GUSTE, JR. ATTORNEY GENERAL FOR STATE OF LOUISIANA
Tommy D. Teague BY: __________________________ TOMMY D. TEAGUE STAFF ATTORNEY
TDT:bms
Enclosures