Breaux v. Lafourche Parish Council

851 So. 2d 1173, 2003 WL 21042759
CourtLouisiana Court of Appeal
DecidedMay 9, 2003
Docket2002 CA 1422
StatusPublished
Cited by6 cases

This text of 851 So. 2d 1173 (Breaux v. Lafourche Parish Council) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Breaux v. Lafourche Parish Council, 851 So. 2d 1173, 2003 WL 21042759 (La. Ct. App. 2003).

Opinion

851 So.2d 1173 (2003)

Gerald "Buzz" BREAUX, as President of the Parish of Lafourche
v.
LAFOURCHE PARISH COUNCIL.

No. 2002 CA 1422.

Court of Appeal of Louisiana, First Circuit.

May 9, 2003.
Rehearing Denied August 25, 2003.

*1174 Leslie Clement, Jr., Thibodaux, Council for Plaintiff/Appellee Gerald "Buzz" Breaux, as President Of the Parish of Lafourche.

Phillip E. Foco, W. Shelby McKenzie, Baton Rouge, Council for Defendant/Appellant Lafourche Parish Council.

Before: FOIL, McCLENDON, and KLINE,[1] JJ.

McCLENDON, J.

This is an appeal from specific portions of a declaratory judgment imposing limits on the Lafourche Parish Council's authority to contract by resolution on behalf of the Parish and, additionally, ruling that LSA-R.S. 42:263 is constitutional as it applies to Lafourche Parish. For the following reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

On May 4, 2001, Gerald "Buzz" Breaux, as President of the Parish of Lafourche (the Parish President), filed a petition for declaratory judgment and injunctive relief against the Lafourche Parish Council (the Council) asserting that the Council had circumvented the provisions of the Lafourche Parish Home Rule Charter (the *1175 Charter) by improperly and illegally utilizing resolutions and/or motions, rather than ordinances, to enter into contracts.

The matter was heard, judgment rendered and each party thereafter filed a motion for new trial. The motions were heard and on March 18, 2002, judgment was signed.[2] It is from this judgment that the Council appeals assigning the following specification of error:

The trial court erred in imposing limits other than those found in Lafourche Parish Home Rule Charter Article IV.A on the Council's authority to contract on behalf of the Parish by resolution—additionally and improperly restricting the Council's authority to contract to contracts which: a) only bind the Council and not the Parish, and b) pertain to internal Council matters only. Concomitantly, the trial court erred in granting the President unfettered authority, following initial approval of the budget, to contract for the expenditure of all parish funds without necessity of additional ordinance or resolution.

The Parish President answered the appeal asserting error in the trial court's judgment regarding legal representation. Specifically, the Parish President asserts that LSA-R.S. 42:263 is unconstitutional as applied to Lafourche Parish and, therefore, the trial court erred in approving the employment of legal counsel by the Lafourche Parish Council through the use of resolution.

DISCUSSION

Contracts

Pursuant to the authority of the Louisiana Constitution of 1974, the people of the Parish of Lafourche, on August 14, 1976, adopted a Home Rule Charter which became effective on October 1, 1976. The Charter was amended in an election held on January 17, 1998, and became effective, as amended, in January 2000. This is the controlling document before this Court.

Article II of the amended Charter sets forth the rules on organization, structure and distribution of powers and functions of Lafourche Parish. Article II, Section A(1) provides that the name of the governing authority is the Lafourche Parish Council and is comprised of nine members. Among the powers of the Council, Section A(9) states that the governing authority shall be vested with and shall exercise all legislative power. Other powers of the Council are enumerated and include investigatory powers as well as the power to establish and control parish agencies, levy taxes, borrow money, appropriate money (as provided in Article V), grant franchises, exercise the right of eminent domain, appoint or remove certain legislative employees, and set bonds.

Section B of Article II relates to the Parish President. The parish president is the chief executive officer. Section B(1). Section B(2) provides in part:

Except as otherwise provided in this charter, the president shall be chief executive officer of the parish and shall be vested with the executive power of the parish.

This section goes on to enumerate special powers of the president, none of which specifically include the authority to approve, sign or enter into contracts.

Article IV of the Home Rule Charter specifically addresses ordinances and resolutions. Section A regarding acts requiring the Council to pass an ordinance, provides *1176 a nonexclusive listing of acts which require ordinances, including acts which provide for the reapportionment of the Council, levy taxes or assessments, appropriate funds or adopt a budget, grant, renew or modify a franchise, provide for raising revenue, regulate parish service charges, incur debt in any manner in excess of budgeted appropriations, abandon parish property, acquire, dispose of, or lease real property, adopt or modify the official map, plat, subdivision ordinance, regulations, or zoning plan, amend or repeal any ordinance, propose amendments to the Charter, create, abolish, merge, or consolidate any parish department, office or agency, and provide fines or penalties for violation of a rule or regulation.

Section G of Article IV specifically authorizes the Council to perform certain acts by resolution and provides:

An act of the governing authority which is not to have the force of law may be enacted by resolution. Acts which may be adopted by resolution shall include but shall not be limited to one which:...
2. Approves a contract and authorizes a person to sign or execute on behalf of the governing authority a contract which has been approved...[3]

In this appeal, the Council asserts that the approval of contracts was expressly added in the Charter amendments to the list of acts which the Council may adopt by resolution subject to certain limitations expressed in the Charter. Further, the Council suggests that by also adding the phrase "in excess of budgeted appropriations" behind the phrase "incurs debt in any manner" among the acts requiring an ordinance, the Charter provides the Council authority to enter into contracts by resolutions so long as it does not incur debt in excess of budgeted appropriations. The Council argues that the Parish President since taking office in 2000 has insisted that any action by the Council which is to have legal effect, like contracts, must be by ordinance and that he has refused to acknowledge the validity of any contracts approved by the Council by resolution and further averring that the Council in approving contracts by resolution has encroached on his executive authority to "administer" the budget. Thus, the Council contends, it has been obstructed and a governmental stalemate has resulted.

Article VII, Section D of the Home Rule Charter provides:

This charter shall be liberally construed to establish for the people of this parish effective home rule, free from legislative interference as to the structure, organization and distribution of powers and functions of its government, and with the power and authority to manage its affairs as contemplated and intended by the constitution.

In Louisiana Television Broadcasting Corp. v. Total C.A.T.V., 341 So.2d 1183 (La.App. 1 Cir.), writ refused, 343 So.2d 1076 (La.1977), this Court stated:

Statutory rules of construction of laws are as applicable to municipal and parish ordinances as they are to state statutes. Liller v.

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Bluebook (online)
851 So. 2d 1173, 2003 WL 21042759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/breaux-v-lafourche-parish-council-lactapp-2003.