Opinion Number ( 2007 )

Dear Mr. Hughes:

In recent correspondence to this office you advise that a question has arisen over the proper appointment of the membership of the West Feliciana Parish Port Commission. At issue is whether the members must be confirmed by the Governor.

The West Feliciana Parish Port Commission is a port commission pursuant to Section 43 of Article VI of the Louisiana Constitution of 1974, which states:

§ 43. Port Commissions and Districts

Section 43. All deep-water port commissions and all deep-water port, harbor, and terminal districts as organized and constituted on January 1, 1974, including their powers and functions, structure and organization, and territorial jurisdiction, are ratified and confirmed and shall continue to exist, except that

(1) The legislature by law may grant additional powers and functions to any such commission or district and may create new port commissions or port, harbor, and terminal districts.

(2) Only by law enacted by the favorable vote of two-thirds of the elected members of each house, may the legislature consolidate or abolish any such commission or district or diminish, reduce, or withdraw from any such commission or district any of its powers and functions and affect the structure and organization, distribution, and redistribution of the powers and functions of any such commission or district, including additions to or reductions of its territorial jurisdiction.

(3) The legislature shall enact laws with respect to the membership of the commissions provided in this Section. Once the law with respect to membership is enacted, it may be changed only by law enacted by the favorable vote of two-thirds of the elected members of each house. (Emphasis added).

The legislature has enacted laws "with respect to the membership" of the commission as provided in R.S. 34:3282, stating:

§ 3282. Creation of West Feliciana Parish Port Commission; membership

A. (1) The West Feliciana Parish Port Commission, hereinafter sometimes referred to as the "commission", is hereby created as a political subdivision of the state of Louisiana, and having a port area coextensive with the entire parish of West Feliciana, hereinafter sometimes referred to as the "parish", as presently or hereafter fixed by law, and is hereby declared to be and constitute a port commission pursuant to Section 43 of Article VI of the Constitution of Louisiana as amended, and as such shall have all authority granted by said Section of the Constitution as well as such authority, powers, and jurisdiction as may be hereinafter provided by this Chapter.

(2) The commission shall be composed of nine members, hereinafter referred to as "members" or "commissioners", appointed for six-year terms as follows:

(a) Four members shall be appointed by the governing authority of West Feliciana Parish on its own nomination.

(b) One member shall be appointed by the parish governing authority from a single nomination submitted by the West

Feliciana Community Development Foundation or its successor.

(c) One member shall be appointed by the parish governing authority nominated by a majority vote of the president of the West Feliciana Parish School Board, the sheriff of West Feliciana Parish, and the assessor of West Feliciana Parish.

(d) Three members shall be appointed by the parish governing authority from a list of nominations submitted by the state legislative delegation representing the parish of West Feliciana. Prior to submission, such list shall be approved by a majority of the legislative delegation.

We note also the constitutional provision of Article IV § 5 (H)(1) of the Louisiana Constitution of 1974, which states:

'The Governor shall appoint, subject to confirmation by the Senate, the head of each department in the Executive Branch whose election or appointment is not provided by this Constitution and members of each board and commission in the Executive Branch whose election or appointment is not provided by this Constitution or by law.'

Article IV § 5 (H)(1) empowers the Governor to make an executive branch board appointment where the appointment is not provided by the constitution or state law. The constitution or the legislature may provide that the appointment is to be made by a person or entity other than the governor or a combination thereof. See Murrill vs.Edwards, 613 So. 2d 185 (La. 1993).

Here, the legislature has provided for the appointments in R.S.34:3282 to the West Feliciana Parish Port Commission. Because Article IV § 5 (H)(1) of the Louisiana Constitution of 1974 is inapplicable to the instant matter, the members are neither appointed nor confirmed by the Governor.

We hope the foregoing is helpful to you. Should you have other questions in which we may provide assistance, please contact this office.

Very truly yours,

CHARLES C. FOTI, JR.

ATTORNEY GENERAL

BY:_______________________

KERRY L. KILPATRICK

ASSISTANT ATTORNEY GENERAL

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