Opinion Number ( 1998 )

Dear Ms. Magri:

You advise this office in correspondence of recent date that you were appointed to the Louisiana State Board of Private Investigator Examiners (hereafter the Board) by Governor Mike Foster on August 9, 1996. Shortly thereafter you were elected unanimously and seated as chairman by the Board. Since that time, you have taken a leave of absence from your duties, but state that you intend to resume your duties as chairman during the meeting scheduled for January 21, 1998.

You are concerned that the Board may attempt to elect a new chairman. Note that the Board may not elect a new chairman at any time. In specific reference to this Board, LSA-R.S. 37:3505 provides:

A. The Board shall:

* * * * *

(6) Elect a chairman and a vice chairman, each to serve a term of two years.

The Board may elect a new chairman only in the event that the chairman's term of office expires, or if the chairman resigns, or if the chairman is removed for cause. Removal must be for cause as the chairman's term is fixed by law. The court inFunchess vs. Lindsley, 133 So.2d 357 (La.App. 1^st Cir. 1961) so stated:

Mecham on Public Officers, Section 454, p. 287; Throop, Public Officers, Section 364, p. 359; annotation, Power to remove public officers without notice and hearing, 99 A.L.R. 336; 67 C.J.S., Officers s 61, 255.

Mecham states the rule as follows:

In those cases in which the office is held at the pleasure of the appointing power, and where the power of removal is exercisable at its mere discretion, it is well settled that the officer may be removed without notice or hearing.

But on the other hand, where the appointment or election is made for a definite term or during good behavior, and the removal is to be for cause, it is now clearly established by the great weight of authority that the power of removal can not, except by clear statutory authority, be exercised without notice and hearing, but that the existence of the cause, for which the power is to be exercised, must first be determined after notice has been given to the officer of the charges made against him, and he has been given an opportunity to be heard in his defense. (See Funchess, supra, at page 362).

You are entitled to serve the remainder of the two year term to which you were elected as chairman and you would be eligible to be elected for a successive term.

Should you have other questions, please do not hesitate to contact this office.

Very truly yours,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: KENNETH C. DEJEAN GENERAL COUNSEL

KCD:ams

Date Received: January 16, 1998

Date Released: January 20, 1998