Opinion

Dear Mr. Lupo, You have requested an expedited opinion from this Office on behalf of the Non-Flood Protection Asset Management Authority (the "Authority") regarding the terms of office for the current members of the Authority. La.R.S. 38:330.12.1, which created the Authority, was amended in both 2010 and 2011. Beginning on January 1, 2012, certain amendments will take effect and others will expire. The particular section of the statute at issue in this opinion is La.R.S. 38:330.12.1(C), which sets the makeup of the Authority by providing for a number of appointed members. It is the opinion of this Office that members of the Authority serve terms of four years and since the Authority is in its first generation, the terms will run from the date of creation of the positions. La.R.S. 38:330.12.1 was enacted and amended by Act 1014 of the 2010 Regular Legislative Session ("Act 1014"). Section 2 of that act created the Authority and clearly provided that the members' terms would be for 4 years. However, because Section 2 ceases to be effective on January 1, 2012, it is imperative to analyze the most recent version of La.R.S. 38:330.12.1 that will take effect on January 1, 2012. Section 4 of Act 1014, which was originally slated to take effect in January 2012, amended the makeup of the Authority, but nevertheless preserved the four year terms for members. However, the amendments in Section 4 of Act 1014 were rendered ineffectual by the passage of Act 363 of the of the 2011 Regular Session of the Louisiana Legislature ("Act 363"). Act 363 amended and reenacted Sections 2 and 4 of Act 1014 by changing the membership requirements for Authority members. However, Act 363 did not amend La.R.S. 38:330.12.1(D), which provides for the terms of office for members of the Authority, thus: *Page 2 Members of the authority shall serve a term of four years. Any vacancy occurring on the authority shall be filled in the same manner as the original appointment for the unexpired portion of the position vacated. Therefore, it is clear from the plain language of La.R.S. 38:330.12.1(D) that members of the authority are to serve four year terms and that the above provision has remained unchanged throughout the various amendments thereto. Nonetheless, the amendments do require an additional analysis in order to determine which members will be a part of the Authority when the new law comes into effect on January 1, 2012, and when their terms begin. La.R.S. 38:330.12.1(C) establishes the makeup of the Authority and currently reads: The authority shall be composed of the following members who shall be subject to Senate confirmation, provided that no elected official shall be appointed to serve as a member of the authority: (1) One member appointed by the Southeast Louisiana Flood Protection Authority East. (2) One member appointed by the state senator representing Senate District No. 3 and Senate District No. 4 and by the state representative representing House District No. 97, House District No. 94, House District No. 99, and by the Congressional Representative representing Congressional District No. 1 and Congressional District No. 2. At least one member appointed shall be a lawyer, at least one member shall be a certified public accountant and at least one member shall be a realtor. (3) One member appointed by the secretary of the Department of Transportation and Development. (4) One member appointed by the mayor of the city of New Orleans. (5) One member appointed by each New Orleans city council member in whose district a non-flood asset is located. (6) Two members appointed jointly by the presidents of the Lakeshore, Lake Vista, Lake Terrace, and Lake Oaks property owners associations. (7) One member appointed by the Lake Pontchartrain Basin Foundation. *Page 3 (8) One member appointed by board for the New Orleans City Park. Seven of the eight categories of appointments listed above were in existence when the statute was originally passed in 2010. Subsection (2), 1 however, did not come into existence in its present form until the passage of Act 363 in 2011. The amendments to Subsection (2) under Act 363 added two new appointments from the two affected congressional districts and specifically named the state senate and house districts for which membership positions had been previously created. With respect to when a members' four year terms begin to run, early Louisiana jurisprudence and previous opinions by this office support the following interpretation: where a statute creating an office is silent as to the beginning of the term, its duration begins from the effective date of the statute, irrespective of the actual date of the appointment.2 Therefore, for the members of the Authority whose positions were created by Act 1014, their four year terms began on August 15, 2010;3 and for those members whose positions were created by Act 363, their four year terms began on June 29, 2011.4 Any positions that are created but have not been filled are therefore vacant and "shall be filled in the same manner as the original appointment for the unexpired portion of the position vacated."5 For instance, if a member position was created by Act 1014, its four year term would run from August 15, 2010 to August 15, 2014 regardless of when the designated authority made its appointment or when the appointment was accepted or when the member's service began. We hope this sufficiently answers your inquiry; however, if we may be of further assistance please do not hesitate to contact our office. *Page 4 Sincerely yours, JAMES D. "BUDDY" CALDWELL ATTORNEY GENERAL By:_______________ STEVEN B. "BEAUX" JONES Assistant Attorney General JDC/SBJ 1 One member appointed by the state senator representing Senate District No. 3 and Senate District No. 4 and by the state representative representing House District No. 97, House District No. 94, House District No. 99, and by the Congressional Representative representing Congressional District No. 1 and Congressional District No. 2. At least one member appointed shall be a lawyer, at least one member shall be a certified public accountant and at least one member shall be a realtor. 2 State v. Irion, 125 So. 567, 569 (La. 1929), citingBry v. Woodroof, 13 La. 556 (La. 1839); La. Atty. Gen. Op. 81-620, 81-620-A. 3 August 15, 2010, is the effective date of Act 1014. 4 June 29, 2011, is the date on which the Governor signed Act 363 into law and thus when it became effective. 5 La.R.S. 38:330.12.1(D)(1).