The traditional news media interviews bureaucrats and politicians and tell you what they say. That reporting has brought you headlines like, “No re-vote necessary,” “Ordinance can fix flawed charter amendment,” or “Correction in Lafayette charter amendment can be fixed via ordinance.” However, we are the only ones that interview the documents and tell you what they say. Here we have yet another example of that contrast, and the importance of our work.
First, the issue before us today is not the council split that was approved by voters in December. What we are discussing is how to fix the errors contained in the newly approved charter document. Should the changes be approved by a vote of the people, or may the council legally address them with a simple ordinance?
The City-Parish Attorney has an opinion
To be fair, the Lafayette City-Parish Attorney has a client: the City-Parish government. If you thought the client was the residents, taxpayers, or even the general public, let’s reflect upon the recent claim that attorney-client privilege trumps the right of the public to know what their government is doing. Specifically, the government didn’t want you to have access to the City-Parish Attorney’s opinion regarding using an ordinance to amend the home rule charter. If it wasn’t for Council Chairman, Jared Bellard, we may have never seen the opinion.
The attorney was tasked with charting a path forward through a political and legal minefield. It’s a tough job, especially considering the home rule charter forbids any amendment to correct voting precinct errors until after the October election which is supposed to be using those precincts. Add to that, an ordinance is not how one is supposed to amend the charter. Between the two, though, the softer option is to try amending those precincts by ordinance and hope no one says anything.
A point of interest here is that an ordinance may be passed by five council members but a home rule charter amendment requires six.
That takes us to ordinance O-042-2019, which is up for final adoption at the March 26th meeting. One of the whereas clauses makes clear that the December 8th voter approved home rule charter had “certain discrepancies, errors and omissions.” The final whereas clause and the justification section both reference an attached reapportionment plan. We highlight the word reapportionment because that word choice is very important.
What does “reapportionment” mean?
On page 4 of his opinion, The City-Parish attorney provides the definition of reapportionment as found in Black’s Law Dictionary, “realignment of a legislative district’s boundaries to reflect changes in population and ensure proportionate representation by elected officials.” By that definition, the trigger is population change. However, since the December 8th election, as far as we know, the registrar of voters has not reported any population changes. Even if it had, the fifteen errors were clearly not caused by a population change. Therefore, the stated purpose of adjusting precincts in the ordinance is not consistent with the definition of reapportionment.
The opinion then muses on how hypothetical purposes behind reapportionment could be interpreted as to align with the current situation. It goes on to say that redistricting and reapportionment are used interchangeably, and therefore the same thing. The next step is proposing that since they are the same thing, and state law “is silent on whether a reapportionment can be accomplished between censuses,” it means the council may reapportion any old time they’d like.
If that sounds far fetched, consider this actual quote from the legal opinion, “Therefore, the City-Parish Council has the authority to reapportion the council election districts by ordinance at any time…” It goes on to name, as examples, a number of the seventeen times we have already thoroughly explored and eliminated because they are in no way similar to the current situation.
A surprising ending
Listening to the City-Parish attorney during the March 12th meeting, one could believe that an AG opinion is entirely superfluous. However, the written opinion might lead one to another conclusion altogether. Below is that entire section, emphasis added.
As the chief legal officer in the State of Louisiana, the Attorney General and his legal team are tasked with providing independent and unbiased legal opinions to political subdivisions upon request. Soliciting an AG Opinion to confirm the recommendations made by your Legal Department is consistent with LCG's objectives to determine, in good faith, the appropriate course of action in addressing the issue presently before the City-Parish Council. Although the opinions are without the force and effect of law and are considered advisory only, having the chief legal officer of the State of Louisiana weigh in on this issue can only operate to ensure that LCG has fully vetted this matter in its quest to apply the appropriate solution to this problem. Furthermore, because the Legal Department has concluded that an election to cure the election district deficiencies is not required, the timing within which a reapportionment ordinance must be adopted prior to the qualifying period in August allows sufficient opportunity for an AG Opinion to be sought. If the City-Parish Council decides to seek an AG Opinion, it is advisable that it do so as soon as possible. This would allow the City-Parish Council time to consider the comments of the Attorney General's office prior to finalizing any concrete course of action. Finally, the Lafayette City-Parish Council is not the only party who is permitted under Louisiana law to seek an AG Opinion on this issue. As such, an AG Opinion will likely be sought on this issue by another party with standing to do so, regardless of whether the City-Parish Council decides to move forward with its own request. It is therefore advisable that, in the event the City-Parish Council votes to request an AG Opinion, you do so expeditiously, so that the request for the AG Opinion may be presented to that office by your own Legal Department.
The written opinion certainly seems to be encouraging the council to request an AG opinion and to do it sooner rather than later. That’s because there are others who may request an opinion. If the City-Parish Attorney gets to ask, he will be able to frame the question a specific way to get a specific answer back.
If it had passed, what would the Attorney’s opinion request have asked?
The language of the failed resolution requesting the opinion reads just like the March 26th ordinance to change the home rule charter by using the council’s reapportionment authority. Effectively, it only asks if the council has reapportionment authority. The answer to that question is, “YES.” However, if the question were, “is this reapportionment” the answer would have to be, “NO.”
So, why did the majority of the council vote against a carefully scripted AG opinion request? Why did the City-Parish Attorney encourage the opinion request in writing and then seem to discourage it during the meeting? We believe it’s because everyone already knows what the opinion is: outside of population changes, the precincts listed in the charter may only be amended by a vote of the people.