Attorney General Opinions

AG Opinion: civil offices

Section 6 of Amendment 95 to the Arkansas Constitution, the four-year term amendment, amends Section 53 of Article 7 of the Arkansas Constitution. The provision prohibits a person elected or appointed to one of the nine county or district offices from holding any other “civil office.” The 2017 Winter issue of County Lines magazine includes an article entitled “Exploring the Ways Issue 1 Amends the State Constitution” by Sarah Giammo, AAC Law Clerk. Pages 15 and 16 set forth a full discussion of the analysis and litany of court holdings and opinions issued by attorneys general interpreting and applying the definition of “civil office” to positions created by law. Arkansas state Sen. Bryan King of Green Forest, who advocated for the four-year term amendment, kindly requested an opinion of the Attorney General on which particular appointments or elective positions a county official or justice of the peace might legally hold following the passage and effective date of the amendment.

Sen. King included reference to specific offices identified by our county officials along with legal authorities, if any, and categorized his requests based upon positions that previously have been held: (a) to be a “civil office” (such as School Board); (b) held not to constitute a “civil office” (such as delegate at a Constitutional Convention); (c) as well as positions that county officials are subject to fill by affirmative law (such as Intergovernmental Cooperation Council); and finally (d) positions our county officials and justices of the peace identified for Sen. King to inquire of the Attorney General (such as county fair board, local museum board, or library board, etc.).

Sen. King’s opinion request asked whether the Attorney General concurred with the past holdings of the courts or opinions of the Attorney General, which concluded the following 20 offices were considered civil offices (and the referenced legal authorities): superintendent of the Arkansas School for the Blind {See: Lucas v. Futrall, 84 Ark. 540 (Ark. 1907)}; municipal judge; county election commissioner {See: Wood v. Miller}; member of the state Board of Pardons and Paroles; Board of the Southern State Colleges; member of a school board; member of a county equalization board; prosecuting attorney; Board of Workforce Education; prosecuting attorney or deputy prosecuting attorney; Board of Workforce Education; Capitol Arts and Grounds Commission; Arkansas Motor Vehicle Commission; sheriffs and deputy sheriffs; and city police officers.

Sen. King’s request also specifically inquired as to a list of five boards and commissions in which past holdings of the courts or opinions of the Attorney General concluded were not civil offices (and included reference to the previous court rulings and attorney general opinions): teacher; superintendent of a small school district; auditor of the Arkansas Burial Association Board; and delegate to the Constitutional Convention.

Sen. King’s request inquired about five boards or commissions on which county officials are subject to serve by virtue of their county office and affirmative statute: Intergovernmental Cooperation Council as per Ark. Code Ann. § 14-27-102; Arkansas Workforce Development Board as per Ark. Code § 15-4-3704; county equalization board as per Ark. Code Ann. § 26-27307; regional solid waste management districts as per Ark. Code § 8-6-703; and planning and development districts as per Ark. Code Ann. § 14-166-202. This request was of utmost importance.

Finally, Sen. King’s request inquired about 18 boards or commissions our county officials and justices of the peace identified that they might be requested to serve upon and were in need of an opinion from the Attorney General: rural water boards, regional water boards or water user boards; waterworks and public sewer facility boards; county fair boards; Farm Bureau Board; Design Review Board for West Memphis; airport commission for municipal or regional airports; Arkansas Fire Protection Service Board; chamber of commerce; Southwest Mental Health Board; Arkansas Cattleman’s Foundation Board; County Soil and Conservation Board; local museum board or commission; county library board as per Ark. Code Ann. § 13-2401; county hospital board as per Ark. Code Ann. § 14-262-113; county or district boards of health as per Ark. Code Ann. § 14-263-104; county or district boards of health as per Ark. Code Ann. § 14-262-113; Rural Development Authority as per Ark. Code Ann. §§ 1488-103 through 14-88-103; Electronic Recording Commission as per Ark. Code Ann. § 14-2-305; levee board or levee improvement district as per Ark. Code Ann. § 14-123-201.

AG Opinions

Mark Whitmore AAC Chief Counsel

as follows:

“I must respectfully decline to opine on the questions of (1) whether each of the numerous boards, commissions, or other entities you have listed in your request for my opinion constitutes a “civil office” for the purposes of the recently adopted Article 7, section 53, and (2) whether that same constitutional provision thus prohibits county elected officials from serving on them.”

The Attorney General further stated:

“As the discussion below illustrates, the application of the governing legal test requires discovery and analysis of numerous and varied facts concerning each entity. The fact-finding required to address many of the entities you have listed is beyond the scope of an Attorney General’s opinion. I will nonetheless lay out below the prevailing law on what constitutes a ‘civil office’ in the context of a similar and long-standing constitutional prohibition placed on sitting legislators. This corpus of law, in my opinion, should be equally applicable to the provisions of Article 7, section 53. This should be of significant help to you as you apply the law to the individual facts in each case.” ... “In order to determine whether a particular position like the ones you mention falls within Article 7, section 53’s proscription for elected county officials, one must first determine whether the position is considered a ‘civil office.’ The Arkansas Supreme Court has stated the following in defining the term ‘civil office’ in the context of Article 5, section 10’s similar prohibition against such simultaneous service by sitting legislators: ‘The See “CIVIL OFFICES” on Page 21 >>>

Court in {Wood v. Miller} declined to set forth any hard and fast rules with regard to the nature of a ‘civil office,’ but it has observed that in any public office the ‘duty [is] a continuing one, which is defined by rules prescribed by the government and not by contract, which an individual is appointed by government to perform.’ The Court has also consistently adhered to the view that an ‘office’ is created by law, with the tenure, compensation, and duties of the position also usually fixed by law. Other typical factors signifying a public office include the taking of an oath of office, the receipt of a formal commission, and the giving of a bond, although the Court has consistently maintained that no single factor is ever conclusive. In the time period since Wood and Lucas v. Futrall, the Court has consistently applied the principles set forth in those cases so as either to prohibit or to allow dual service insofar as it applies to members of the General Assembly pursuant to Article 5, section 10.”

“I have had occasion to apply the above precepts and precedents to opine that the position of a commissioner for a drainage improvement district is a civil office. In that opinion, I noted that

a commissioner’s position is created by law, and the law — not a contract of employment — expressly establishes the commissioners’ duties (‘assess all benefits ... and all damages....’). Furthermore, I noted that the duties are continuing, not occasional or intermittent; and that other indicia of a civil office, including the receipt of compensation and expenses and the taking of an oath of office, were present. Finally, and perhaps most significantly for the purposes of that opinion, it was clear that the position of an improvement district commissioner involved the exercise of sovereign power as agents The [state Supreme] Court has also consistently adhered to the view that an ‘office’ is created by law, of the State both by statutory authority and ‘by legislative delegation through with the tenure, compensation, and duties of the position the taxing power of the [S]tate....’ Thus, also usually fixed by law. Other typical factors signifying we can see what the Court generally a public office include the taking of an oath of office, the looks for in deterreceipt of a formal commission, and the giving of a bond ... mining whether a given position is a — Arkansas Attorney General Leslie Rutledge ‘civil office,’ at least for the purposes of Article 5, section 10. I have no reason to doubt that the Court would apply the same definition and consider the same factors in determining a ‘civil office’ in the context of Article 7, section 53. Accordingly, in my opinion, the above principles should be applied to a given office or position, taking into consideration the facts of each specific case.” “In your request for my opinion, you note that some state statutes require at least one of the elected county officials named in Article 7, section 53 to serve on a specific board or commission. This raises another aspect that must be considered when looking at a specific appointment, that is, whether the stat-