Attorney General Opinions

AG Opinions: Running for two offices to municipal property

AG OPINION NO. 2015-138

The Attorney General addressed whether a candidate can run simultaneously for the office of county treasurer and constable. The AG was requested to interpret Act 1471 of 2013, ACA 7-5-111, which provides: “A person shall not run for election for more than one (1) state, county or municipal office if the elections are to be held on the same date.” The AG determined that the office of constable is a township office, not a state, county or municipal office. Therefore, a qualified and eligible person may run as a candidate for constable, a township office, and simultaneously run for a state, county or municipal office. The AG noted, however, that this does not necessarily mean that a person may simultaneously serve as a constable and a state, county or municipal elective office due to potential conflicts of interests or incompatibility under the constitution or law.

AG OPINION NO. 2015-128

The AG was requested to determine whether a non-management public employee may run as an independent candidate or partisan candidate for elective office. The AG noted that the law generally protects public employees’ right to run for office. See ACA § 21-1-207, which affirmatively provides: “No employee of the state, a county, a school district, or other political subdivision of the state shall be deprived of his or her right to run as a candidate for an elective office … unless as necessary to meet the requirements of federal law as pertains to employees.” The AG explained that the federal law commonly referred to as the “Hatch Act,” 5 U.S.C. 15-1, et. seq., provides an exception that prohibits certain public employees from running for public office that are: (a) employed by “the executive branch of a State, municipality or other political subdivision of a State, municipality, or political subdivision” and (b) “principally employed in connection with activity which is financed in whole or in part by federal loans or grants, etc.”

AG OPINION NO. 2015-100

The AG explained some important rules of the Arkansas Public Employees’ Retirement System (APERS) and the Deferred Retirement Option Plan (DROP). The AG explained that where a county elected official entered into the APERS DROP in June 2009 the DROP ends at the expiration of seven years, June 2016. Such a retiree must be off work 90 days before this person is permitted to return to employment. The AG explained that the period between termination of employment that APERS uses is the period of separation that was in effect at the time the official joined the APERS DROP. The AG explained the definition or requirements for termination of employment for an elected public official as follows: (a) the member has resigned, been removed or otherwise no longer holds the elected position; (b) a complete severance from the elected position has occurred; and (c) the member has ceased performing any services in his or her elected position, except for non-compensated functions related to the transfer of the duties or the transfer of the position itself. The AG further explained that the law and rules were changed in 2011, and an official or person that enters the DROP after February 2011 is not eligible for employment in any position covered by APERS or several specified state retirement systems. {APERS laws, rules and regulations are complicated and ever changing. AAC staff do not provide retirement advice or legal advice related to APERS, etc. Act responsibly for your retirement planning, and please be sure to consult APERS counselors while planning your retirement.}

AG Opinions

Mark Whitmore AAC Chief Counsel

AG OPINION NO. 2015-010

The AG explained the disposition of real, personal or mixed property of a city of the second class or an incorporated town upon surrender or revocation of their municipal charter. Under ACA § 14-39-102 and 103, the property of the former city remains public property and becomes property of the state; and the county court where the extinct city is situated takes possession, custody and control of the property on behalf of the state. {Proceedings for surrender or revocation of a charter for a city of the second class or incorporated town are to be instituted by the prosecuting attorney before the county court. The Governor shall also appoint a receiver to collect back taxes for the extinct city and report to the circuit court settlement of all claims against the city.}

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