Opinion Number ( 2001 )

Dear Rep. Frugeacute:

We are in receipt of your request for an Attorney General's Opinion concerning dual officeholding and the Mamou Road Water System, Inc. Specifically, you ask the following questions:

1. Can the manager of a water system also be on the Board of Directors of the water system?

2. Can proxy votes be used to elect a Board of Directors' member?

With respect to your first question, the dual officeholding laws, LA R.S. 42:61 et seq., apply in general to a person holding two positions at the same time. In particular, LA R.S. 42:64 enumerates certain combinations of employment and/or officeholding that are classified as "incompatible offices." LA R.S. 42:64 states in pertinent part:

A. In addition to the prohibitions otherwise provided in this part, no other offices or employments shall be held by the same person in combination if any of the following conditions are found pertinent and prohibitions shall exist whether or not the person affected by the prohibition exercises power in conjunction with other officers:

(1) The incumbent of one of the offices, whether or not in conjunction with fellow officers, or employment has the power to appoint or remove the incumbent of the other

(4) The incumbent of one office, whether or not in conjunction with fellow officers, or employment is required by law to execute orders and follow directions given by the incumbent of the other office or employment.

Attached to your opinion request, you submitted the Bylaws of the Mamou Road Water System. In Article IX, Section 1, b., the bylaws state that among other duties, the directors are:

To select and appoint all officers, agents or employees of the corporation, remove such agents or employees of the corporation, prescribe such duties and designate such powers as may not be inconsistent with these bylaws, fix their compensation and pay for faithful service.

The bylaws plainly illustrate that the position as board member empowers one to appoint or remove an individual serving as manager of the district. LA R.S. 42:64 prohibits the incumbent of one office from holding a separate office where one officer has the power to appoint or remove the incumbent of the other. Op. No. 95-76 and 94-490. Additionally, the Board of Directors designates the powers given to the manager that are not set by the bylaws.

Therefore, it is the opinion of this office that an individual maynot serve both on the Board of Directors of the Mamou Road Water System and as the manager of the same water system.

As to your second question, proxy votes may be used to elect a Board of Directors' member, provided the proxy vote is in accordance with Article VII, Section 4 of the bylaws, which provides for the casting of votes by proxy.

We hope this opinion addresses all of your concerns. If we can be of further assistance, please advise.

With kindest regards,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: ___________________________ ANDREW D. BENTON Assistant Attorney General

RPI/ADB/crt

Date Received: Date Released: February 1, 2001

Andrew D. Benton Assistant Attorney General