?tatz of i?outaiana DEPARTMENT OF JUSTICE RO. BOX 94005 BATON ROUGE 70804-9005 JAMES D. CALDWELL ATTORNEY GENERAL July 10, 2014 OPINION 14-0100 53 LEVEES, DRAINAGE DISTRICT FLOOD CONTROL La. R.s. 33:330.1 La. R.S. 38:330.1 creates speci?c predetermined terms of commissioners Mr_ James M. Lapeyrel Jr. for_the SLFPA-E Boards. . Once a vacancy occurs. the . notice prowsuons are trIggered, and WIthIn ninety days, nominees should be Chalr - submitted by the Nominating Committee to the governor. If an appointment SLFPA Nominating Committee occurs within the same year of the vacancy. the term of_the commissioner Is for four years. less the amount of time In mm the notice was advertised P-O- BOX 50699 and the appointment occurred. If an appointment is not made in the same New OrIeans, LA 70150 year the vacancy occurred. then such appointment should be treated like an appointment to ?ll an unexpired term. and the term of of?ce will be four years, less the amount of time in which it took the vacancy to be noticed and the appointment process to occur. even if the gap in the term created the dela toa oint is signi?cantl longer than nine da 3. Dear Mr. Lapeyre: pp Our Office has received your request submitted on behalf Of the Nominating Committee for the Southeast Louisiana Flood Protection Authorities (?Nominating Committee") for an opinion concerning the terms Of two members of the board of commissioners for the Southeast Louisiana Flood Protection Authority-East and the terms Of two members of the board of commissioners for the Southeast Louisiana Flood Protection Authority-West In particular, you have asked for guidance on the following questions: (1)What are the terms Of Office for Paul Kemp and Jefferson M. Angers, two commissioners Of the SLFPA-E Board? (2) What are the terms Of of?ce for Kerwin E. Julian, Sr. and Paul Dauphin, two commissioners Of the Board? (3) Who determines when a vacancy exists and when a term of Office expires? (4) Are there current vacancies on the SLFPA-E Board and Board and if so, how do the parties proceed given the discrepancies in the records of the authorities and the Nominating Committee? As referenced in your request letter, the Nominating Committee is tasked with submitting nominations for each vacancy on the ?ood protection authorities to the governor for appointment, subject to con?rmation by the Senate. La. R.S. 38:330.1. Your letter provides relevant background information about the commissioners referenced in your questions, which will be addressed after outlining the pertinent legislation governing the terms and appointment procedures for members of the authorities. OPINION 14-0100 Mr. James M. Lapeyre, Jr. Page 2 Governinq Appointment The relevant statute to consider for determining the terms of commissioners is La. R.S. 38:330.1. Subsection of La. R.S. 38:330.1 provides for the terms of the initial appointees and creates a legislatively prescribed staggered term of office, providing: The members of each board initially appointed shall at their ?rst meeting determine by lot their terms of of?ce, which terms shall commence immediately upon their appointment and shall expire, respectively, as follows: For the board of the Southeast Louisiana Flood Protection Authority- East: two members in one year, three members in two years, three members in three years, and three members in four years, from the ?rst day of July immediately succeeding such appointment. For the board of the Southeast Louisiana Flood Protection Authority- West Bank: one member in one year, two members in two years, two members in three years, and two members in four years, from the ?rst day of July immediately succeeding such appointment. (2) All commissioners thereafter appointed, except a commissioner appointed to fill an unexpired term, shall be appointed as provided in? Subsection of this Section for staggered terms of four years. No member shall serve more than two consecutive four-year terms. As the above makes clear, the initial appointees determined amongst themselves when their respective terms would expire: on July 1 after an appointment period of either one, two, three or four years. By causing the terms to all expire on July 1, the legislature explicitly defines the terms of future of?ces, where either two or three members have terms expiring on a particular July 1st. Further, La. R.S. speci?es that all commissioners appointed subsequent to the initial appointees, except a commissioner appointed to ?ll an unexpired term, shall be appointed for staggered terms of four years. By creating this structure, the legislature determined the matrix that should be maintained for the commissioners. According to the matrix maintained by the Nominating Committee for SLFPA-E, there are nine members: two with terms expiring July 1, 2014; two with terms expiring July 1, 2015; two with terms expiring July 1, 2016; and three with terms expiring July 1, 2017.1 According to the matrix you provided for SLFPA-W, there are seven members: two with terms expiring July 1, 2014; two with terms expiring on July 1, 2015; one with a term expiring on July 1, 2016 and two with terms expiring on July 1, 2017.2 1 Attachment A, Request. While not at issue in this request, we note that the statute describes the terms of the initial members describes eleven members, yet the statute now describes membership as nine members, consistent with the matrix you provided. Act 521 of the 2009 Louisiana Legislative Session reduced the membership of the Board from eleven members to nine members. 2 Attachment A, Request. OPINION 14-0100 Mr. James M. Lapeyre, Jr. Page 3 Once a vacancy occurs, notice must be provided and meetings must occur as described by La. R.S. Within ten days of the occurrence of a vacancy, the board shall advise the chairman of the Coastal Protection Restoration Authority of the vacancy? Then, the chairman has fourteen days to publish notice of the vacancy in the official journal of the state and of each parish within the territorial jurisdiction of the authority? Between thirty and sixty days from the date of the last publication of the notice of vacancy on the Board, the Nominating Committee must meet to determine the nominations to send to the governor.5 The nominations must be submitted no later than ninety days after the occurrence of the vacancy.6 If the Nominating Committee fails to do so, as indicated in La. R.S. the governor shall appoint someone who meets the quali?cations. Thus, there is an inherent con?ict in the fact that the legislature prescribed the process under which an appointment occurs as being triggered after a vacancy actually occurs yet there is also a legislatively defined stagger of four year terms specifically created in Subsection D. This is an area in which we recommend you seek legislative clarification? However, without this clarification, we provide you with the following interpretation which seeks to give meaning to what we view as a speci?c and direct creation of terms of of?ce for commissioners of the Board, even though such an interpretation, when considering the process for filling a vacancy, results in a conclusion that a commissioner serves a four year term, less the time period that lapses during his or her appointment process and, consequently, the added time period that lapses while he or she continues to hold over the position until a successor is appointed.8 With respect to members of the SLFPA Boards, the statute envisions: Terms of members on the commission have predetermined four year terms as established in the enabling legislation creating the authorities, such terms expiring on July 1;9 Members serve staggered four year terms;10 and The governor should be considering individuals for appointment to an expired term within ninety days of a vacancy.11 As described above, unless accounting for time as a commissioner serving the board in a holdover capacity, it is impossible to both maintain the original prescribed staggered La. Rs. Id. 2 La. R.resolve this con?ict could be by adjusting the nomination process to occur prior to the occurrence of a vacancy. 3 See La. R.S. 42:2 and La. Const. XIVSee La. R.S. ?1 See La. R.S. OPINION 14-0100 Mr. James M. Lapeyre, Jr. Page 4 terms and permit commissioners to serve four year terms when the process for ?lling a vacancy is not triggered until a vacancy.actually occurs. The legislation itself appears to create confusing instruction as to how to calculate member terms. When considering statutory interpretation, we consider the long standing principles: The function of statutory interpretation and the construction given to legislative acts rests with the judicial branch of the government. Theriot v. Midland Risk Ins. 00., 95-2895 694 So.2d 184, 186. The rules of statutory construction are designed to ascertain and enforce the intent of the Legislature. Succession of Boyter, 99-0761 756 So.2d 1122, 1128; State v. Piazzo, 596 So.2d 817, 819 (La.1992). Legislation is the solemn expression of legislative will and, thus, the interpretation of legislation is primarily the search for the legislative intent. Boyfer, 756 So.2d at 1128; Cat?s Meow, inc. v. City of New Odeans through Dep?t of Fin., 98-0601 720 So.2d 1186, 1198. We have often noted the paramount consideration in statutory interpretation is ascertainment of the legislative intent and the reason or reasons which prompted the Legislature to enact the law. State v. Johnson, 03-2993 884 So.2d 568, 575; Theriot, 694 So.2d at 186. The starting point in the interpretation of any statute is the language of the statute itself. Johnson, 884 So.2d at 575; Theriot, 694 So.2d at 186. 'When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." La. Civ.Code art. 9; Johnson, 884 So.2d at 575. However, ?when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law." La. Civ.Code art. 10; Fontenot v. Reddeil Vidrine Water Dist., 02- 0439 836 So.2d 14, 20. Moreover, "when the words of a law are ambiguous, their meaning must be sought by examining the context in whi102h they occur and the text of the law as a whole." La. Civ.Code art. 12. In Clark v. Board of Commissioners, Port of New Orleans, 422 So.2d 247 (La.App. 4 Cir. 11/2182), the court considered the terms of members for the Board of Commissioners, Port of New Orleans ("Dock Board?). On December 10, 1976, a vacancy was created on the Dock Board, and the commission to appoint Mr. Clark to ?ll the vacancy was dated March 9, 1978. The Dock Board maintained that a member's term of of?ce begins on December 10th of the year that the term of his or her predecessor expired, and lasted ?ve years thereafter.13 The court considered the distinction between an appointment to a position where the statute envisions a de?nite i: M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 pp. 12-13 (La.2008), 998 So.2d 16, 26-27. Id. at 248. OPINION 14-0100 Mr. James M. Lapeyre, Jr. Page 5 start and ?nish and a statute that merely prescribes a number of years of a particular term without prescribing the manner of a stagger.14 The court concluded that the Dock Board had to give meaning to the five year term; however, acknowledged in its discussion that the conclusion would be different had the statute contained speci?c set terms of of?ce for the position. Clark is not directive in interpreting the member terms of the authorities' commissioners, as the terms for the SLFPA Boards are legislatively predetermined, unlike the terms for the Dock Board. In discovering a possible con?ict between the commissioners holding a staggered term beginning and ending on July 1 of speci?c years and also serving four years when the appointment does not occur until after the statutory envisioned period of time, we attempt to provide an interpretation by examining the statute as a whole and giving meaning to an interpretationrwhich best illustrates the legislative intent of having board members serve predetermined terms. When the nomination and appointment process does not occur within the time period envisioned by the statute. the resulting appointment should be treated as an appointment to serve an unexpired term. An interpretation which permits the appointing authority to upset the legislatively set staggers by delaying an appointment does not, in the opinion of this of?ce, conform with the legislative intent in enacting the law. Thus, we interpret the statute to create speci?c predetermined terms of its commissioners. Once a vacancy occurs, the notice provisions are triggered, and within ninety days, nominees should be submitted by the Nominating Committee to the governor. If an appointment occurs within the same year of the vacancy, the term of the commissioner is for four years, less the amount of time in which the notice was advertised and the appointment occurred.15 If an appointment is not made in the same year the vacancy occurred, then it is the opinion of this of?ce that such appointment should be treated like an appointment to ?ll an unexpired term, and the term of of?ce will be four years, less the amount of time in which it took the vacancy to be noticed and the appointment process to occur, even if the gap in the term created by the delay to appoint is signi?cantly longer than ninety days. Factual Background Information Your request provided the following background information, including supporting documents, as referenced herein. On July 1, 2010, two seats on the Board ?4 Id.- at 248-249. The court cites to State v. Young, 68 So. 241 (La.1915), which addressed whether the governor could ?ll a vacancy for bank examiner while the Senate was in recess. The beginning of a bank examiner's term was speci?cally provided for by statute, but the court said that, if it had not been so provided, the term would have begun on the date the act creating the office became effective. Thus, there is acknowledgement of the fact that the legislature can set the stagger to begin by referring to the date the act was effective for a perspective set term, or the legislature can set the term to be a set number of years from the date of appointment. 5 Thus, with respect to vacancies which occur on July 1, 2014: individuals who are appointed to ?ll the vacancy serve a term of July 1, 2014 July 1, 2018. their terms effectively shortened by the nomination and appointment process. OPINION 14-0100 Mr. James M. Lapeyre, Jr. Page 6 were vacated when the terms of two commissioners ended. You included a copy of the letter'sent by the SLFPA Nominating Committee to the Governor, dated October 12, 2010, wherein the Nominating Committee recommended two individuals for appointment, speci?cally noting that the terms for which these nominations were made both expired on July 1, 2010.1 The letter to the Governor also referenced compliance with the notice requirements and provided attachments for the Governor to consider with the recommendations, one of which was a matrix of the members of the authority if the appointments are approved. The Nominating Committee understood that the terms of the two vacant positions for which the recommendations were being made to fill were from July 1, 2010 until July 1, 2014.? With an appointment date noted as August 12, 2011, a commission was issued for Mr. Kemp, one of the individuals recommended by the Nominating Committee. According to the commission issued by the Secretary of State, Mr. Kemp's term ends on July 1, 2015, one year later than the Nominating Committee understood his term to end.? With an appointment date noted as October 16, 2013, a commission was issued for Mr. Angers.19 According to the commission issued by the Secretary of State, Mr. Angers' term ends on July 1, 2017, three years later than the Nominating Committee understood the term of that seat to end .20. It appears as though the records held by the SLFPA-E Board re?ect the terms of these commissioners to be consistent with the commissions issued by the-Secretary of State. This discrepancy as to when the terms end is significant, as the Nominating Committee understands two of the terms to end on July 1, 2014. With respect to membership on you state that in May, 2014, Kenlvin E. Julian, Sr. was appointed to the to ?ll Gerardo A. Viera's seat, which would have expired on July 1, 2014. Rather than appointing Mr. Julian to fill finish the prior appointee's term, he was issued a commission with a new four year term ending on July 1, 2018. Additionally, recently received an amended notice regarding Mr. Dauphin's term of of?ce, such correspondence reflecting an appointment of April 14, 2010 with a term' ending on July 1, 2014. However, the Nominating Committee originally voted to recommend Mr. Dauphin for a term of July 1, 2013 through July 1, 2017. Again, similar to the appointments concerning Mr. Angers and Mr. Kemp, Mr. 16 Attachment B, Request. 17 Thus, any individual appointed to ?ll these positions would not serve for a full four year term since the seats had become vacant on July 1, 2010, and the recommendations were not made until October 12, 2010. '8 Attachment C, Request. '9 Mr. Angers' name was not on the October 12. 2010 recommendation from the Nominating Committee; however, since the nominations came more than ninety days from the date on which the seats became vacant, consistent with La. R.S. the Governor was free to name his own nominee for the vacant seat. 2? Attachment D, Request. OPINION 14-0100 Mr. James M. Lapeyre, Jr. Page 7 Dauphin was not appointed until the following year.21 Then, instead of issuing a commission for Mr. Dauphin's new term, the Secretary of State issued an amended commission for Mr. Dauphin re?ecting a new expiration date of July 1, 2014.22 Again, it appears as though the records held by the Board re?ect the terms of these commissioners to be consistent with the commissions issued by the Secretary of State; however, the records of the Nominating Committee re?ect that the terms of these individuals are ?xed, where the terms last for four years, starting on July 1st and ending on July 1st, regardless of the date of actual appointment. Applying Intermetation of Statutory Created Terms to Facts Presented SLFPA-E: Two seats became vacant on July 1, 2010, on which date the matrix of member?terms was consistent between the Nominating Committee and the SLFPA-E Board.? Thus, had individuals been appointed in 2010, both entities would have the terms designated as July 1, 2010 through July 1, 2014: However, nominees were not provided to the Governor to consider within ninety days of the vacancy nor did the Governor make appointments after ninety days, as directed by La. R.S. One was appointed thirteen months after the vacancy occurred. The other was appointed three years and three months after the vacancy occurred. To address the matter of the date contained on the commission, the issuance of a commission by the Secretary of State is not one which typically involves a fact intensive inquiry into the nature of the term of appointment. It is the opinion of this of?ce that the placement of a particular date describing a member term?s expiration by the Secretary of State is not intended to definitely describe a term. Further, we do not believe it to be a function of the Secretary of State to resolve an interpretive dispute as to whether the statute sets forth specific prescribed terms of office for commissioners, regardless of the year of appointment, or whether an appointee serves four years from July 1 of the year of appointment, regardless of the gap in time between a vacancy and appointment. As described in the above section interpreting the statutory term of of?ce, it is the opinion of this office that it is proper to maintain the original staggered terms of the two of?ces, even if the appointment does not occur within the same year a vacancy occurs. Thus, Mr. Kemp, who was appointed on August 12, 2011, is serving a term which began on July 1, 2010 and should end on July 1, 2014. Accordingly, we are also of the opinion 21 in this instance, we note that the Nominating Committee's letter to the Governor recommending commissioners for appointment to ?ll vacancies is dated September 30, 2013, which is within the ninety days of the vacancies which occurred on-July 1, 2013 (See Attachment G, Request); however, it appears that Mr. Julien?s appointment was noted by the Secretary of State effective May 9, 2014 (Attachment E, Request) and that Mr. Dauphin?s was recorded _as April 14, 2010 (Attachment F, Request). 22 Attachment F, Request. 23 Since the records of the two entities were the same on this date, we presume that such records were accurate at this point in time. OPINION 14?0100 Mr. James M. Lapeyre, Jr. Page 8 that Mr. Angers, who was appointed on October 16, 2013, is serving a term which began on July 1, 2010 and should end on July 1, 2014. Likewise, utilizing similar construction bf the nominating and appointment process for the members, when Mr. Julien was appointed on May 9, 2014 to ?ll a vacancy24 of a term that ended July 1,2014, his term should expire July 1, 2014.25 Further, when Mr. Dauphin was appointed on April 14, 2010 to ?ll a term which became vacant on July 1, 2009, the Nominating Committee understood the term to be from July 1, 2009 July 1, 2013. On September 30, 2013, the Nominating Committee understood Mr. Dauphin's term to have expired, notice of the vacancy was provided as prescribed by statute, and the Nominating Committee recommended he be appointed for a second four year term, which would have been from July 1, 2013 through July 1, 2017. The Secretary of State issued an undated ?Amended: Term" commission for Mr. Dauphin at some point which states Mr. Dauphin's term is to end on July 1, 2014. It is our opinion that Mr. Dauphin is currently serving in a holdover capacity, as his successor has not yet been appointed. His term expired on July 1, 2013. While the Nominating Committee apparently nominated him to serve another term, a commission was not issued for him. It is unclear why a commission was not issued, and rather, an amended commission was issued. It is the opinion of this office that, should he be appointed, his term should be from July 1, 2013 July 1, 2017. Vacancy Your third question asks who determines when a vacancy exists and when a term of office expires. This determination is si ni?cant, as you note, because certain notice provisions are triggered by a vacancy. 6 It is the opinion of this of?ce that the law determines when a vacancy exists. If a party believes that a vacancy has occurred and noti?cation has not occurred as is contemplated by La. R.S. then it may be appropriate for that party to seek a 'writ of mandamus so that a proper appointment can be made if there is, in fact, a vacancy. Until the time in which an appointment is made, the existing commissioner would continue to serve in a holdover capacity. Your last question asks whether we believe there to be any current vacancies on the Board. As described in our response to question one, it is the opinion of this office that, as of- July 1, 2014, the seats held by both Mr. Kemp and Mr. Angers are vacant. However, both individuals are eligible for reappointment if the Nominating Committee provides such a recommendation. - 2? Mr. Julien was appointed to ?ll the remaining term of Mr. Viera. 25 Rather than on July 1, 2018, as indicated on the commission attached as Attachment to the Request. See La. R.S. OPINION 14-0100 Mr. James M. Lapeyre, Jr. Page 9 Further, as described earlier with respect to the SLFPA-W Board, it is the Opinion of this office that Mr. Julien's seat became vacant on July 1, 2014. Not at dispute in this request is the expiration of Mrs. Maclay's term on July 1, 2014. We are not of the opinion that Mr. Dauphin?s term expires on July 1, 2014. His term of office expired on July 1, 2013 and, should he be reappointed, his next term will expire on July 1, 201?. lf we concluded that there are vacancies on the authorities, you have asked how the parties should proceed. Given that this opinion makes a conclusion as to what we believe to be the appropriate terms of of?ce. the issuance of this opinion may resolve the discrepancy. However, we acknowledge that Opinions of the Attorney General are persuasive and not of a binding nature.2 If the analysis herein does not satisfy all parties, you may wish to have a trier of fact resolve the issue. We hope that this opinion has adequately addressed the legal issues you have raised. If our of?ce can be of any further assistance, please do not hesitate to contact us. With best regards, JAMES D. CALDWELL ATTORNEY GENERAL Ewm 4 Emalie A. Boyce 1 Assistant Attorney General JDC: EAB 27 See, City of New Orleans v. Board of Directors of Louisiana State Museum, 98?1170 739 So.2d 748, 753 n. 11; Ballard v. Livingston Parish Fire Prot. Dist. 5, 2011-1053 (La. App. 1 Cir. 1/11112), 91 So. 3d 311, 314, writ denied. 2012-0364 (La. 4in12), 85 So. 3d 699; New Iberia Fire?ghters Ass'n, Local 775 v. City of New Iberia. 2013-1337 (La. App. 3 Cir. 517114), 2014 WL 1805358: Chesapeake Operating, Inc. v. City of Shreveport, 48,608 (La. App. 2 Cir. 1129/14), 132 So. 3d 537, 543 writ denied, 2014-440 (La. 6/20114)