Attorney General Opinions

AG Opinions: From county road establishment to contract ethics

AG OPINION NO. 2014-021

The Attorney General tackled an array of complex legal questions that commonly arise concerning the authority of county judges under the Constitution and laws of Arkansas over county roads. The AG explained the rulings of the Arkansas Supreme Court on the ways to establish a county road by virtue of: dedication and acceptance; condemnation; and declaration of a public road (mail route, bus route or worked road) as a county road. The AG explained that the acceptance of a road dedicated to the public as a county road is considered an executive and discretionary authority of the county judge; and neither the quorum court nor a circuit court may interfere with this authority or the exercise of discretion. Likewise, the authority to exercise eminent domain or to declare an existing public road (a mail route, bus route, or worked road) as a county road is under the discretion of the county judge and not subject to challenge by the quorum court or a circuit court mandamus. The AG further explained the differences in county roads, public roads and private roads; and the restrictions on allocating dedicated road revenues to private property or private roads. The AG explained the role of the quorum court in adopting road standards or master street plans by ordinance and the power of the quorum court to appropriate dedicated and general revenues for public roads and bridges. This opinion will greatly assist county judges in applying the law and in conveying the law of Arkansas to the citizens. AG OPINION NO. 2014-032

The AG explained that assessments of fire protections districts are assessments of benefits and not taxes. The AG noted that fire protections districts have a variety of complex restrictions on the manner to raise their fees or types of assessments depending on date of formation. The AG noted that boards formed after 1989 are explicitly authorized to adopt assessments of a flat fee per parcel; and as per ACA 14-284-212(g) a fire protection district board formed after 1995 may adopt a flat fee per parcel or flat fee per acre. The AG concluded that a fire protection districts formed before 1989 in accordance with Act 35 of 1975 (in 1982 under the particular facts submitted) should require a vote of the membership to exceed the assessment caps reflected on the ballot used and voted upon by the members during formation of the fire protections (and do not have the apparent authority to adopt a flat fee).

AG OPINION NO. 2014-040

The AG interpreted ACA 26-35-601 and the payment of delinquent personal property by a title company as escrow agent in connection to a refinance of a mortgage. The AG noted that legislative clarification may be needed. ACA 26-35601 provides a mortgage holder may avoid the payment of delinquent personal property taxes in connection with payment of real property taxes on the subject lands under a lienholder exception. However, it is unclear under the various refinance documents whether the title company as escrow agent in paying the real property taxes in connection with a refinance is acting as agent for the landownertaxpayer or the existing mortgage company under a refinance as a lien holder. A mortgage company new to the property undertaking the refinance of the existing mortgage and not possessing a lien at the time of the closing would apparently have no valid assertion as a lien holder.

AG Opinions

Mark Whitmore AAC Chief Counsel

AG OPINION NO. 2013-134

The AG expounded on the scope of county ethics provisions under ACA 14-14-1202, and indicated that provisions prohibiting procurement of special privileges or exemptions for “immediate family” likely means person within the first degree of relationship. The AG also explained that a county officer or employee is in a position of public trust and are prohibited from being interested in a contract in furtherance of their personal and individual interests. Contracts or transactions in furtherance of the personal interests of an official or employee are generally unenforceable. ACA 14-14-1202(c) authorizes special purchases by virtue of transparent ordinance finding unusual circumstances and obtaining a two-thirds supermajority vote of the quorum court.