Attorney General Opinions

AG Opinions

Voluntary taxes, Judge/Q.C. authority, solid waste boards, APERS changes

AG OPINION NOs:

1991-015 1991-082 1996-069 1999-408 2011-149 1991-077 1994-003 1999-231 2005-205

Voluntary Taxes

The Attorney General has stated in numerous opinions that the collection of a voluntary tax paid by the county to a private nonprofit corporation violates the Arkansas Constitution, Article 12, § 5, which prescribes: “No county, city, town or municipality shall become a stockholder in any company, association or corporation; or obtain or appropriate money for, or loan its credit to, any corporation, association, institution or individual.”

A quorum court may appropriate funds from a voluntary tax for a grant to a public entity such as a conservation district. See: AG Opinions Nos. 1992-083 and 1994-003.

In some instances the specific facts may allow for voluntary tax proceeds to be turned over to a public entity or a private entity that is performing a community service grant.

In Gordon v. Woodruff, 217 Ark. 653 (1950) the Supreme Court upheld an appropriation for a grant to a county fair association was made to aid the construction of buildings on county property. Likewise, a grant to a community college foundation spent to aid a public community college may be considered legal. See: AG Opinion No. 1991-082.

Appropriations to a private nonprofit corporation for charitable and laudable purposes such as operating shelters, such as shelters for animals or shelters for juveniles, are considered illegal. See: AG Opinion No. 1991-015.

Appropriations for a non-profit private corporation to a learning center with contracts with the state are not governmental functions of city or county government. See: AG Opinion No. 1992-019. A voluntary tax to a nonprofit fire department is not permitted. However, a voluntary tax to a fire protection district may be upheld by the courts since a fire protection district is plainly a public entity. See: AG 2011149. The collection of money by the county for the benefit of private corporations is a violation of the Arkansas Constitution, Article 12, § 5. See AG Opinion No. 1996-069.

AG Opinions 1999-408 and 2005-205 explain that the courts have held that an organization’s formation as a private nonprofit corporation will preclude itself from receiving support from a political subdivision. AG Opinion No. 1999-231 explains that a quorum court may repeal voluntary taxes; and that taxes voluntarily paid under the common law doctrine of voluntariness precludes refunds.

AG OPNION NO. 2011-087

Judge / Q.C. employment authority

Under the Arkansas Constitution and laws of Arkansas, the county judge, not the quorum court, has the authority to hire and fire the county attorney.

The Arkansas Constitution, Amendment 55, § 3, vests the county judge with the authority to hire and fire county employees, except those persons employed by other elected officials of the county.

Likewise, A.C.A. 14-14-1102 vests the power to hire independent contractors, employ necessary personnel or purchase labor or services for the county with the county judge.

The quorum court has the authority to make appropriations for employee positions or contract services but is prohibited by separation of powers from making employee hiring decisions or designating specific vendors or contract awards. AG OPINION NO. 2011-073

Solid waste boards

Mark Whitmore AAC Chief Counsel

Solid waste boards must comply with A.C.A. 25-15-201 et seq., the Administrative Procedures Act (the “APA”), in promulgating regulations. A.C.A. 25-15-201 sets forth the notice and publication requirements for rule making by state agencies.

A.C.A. 8-6-704 provides that solid waste boards have the power to adopt: (1) rules in assuring public notice and participation in any rulings and findings of the board and (2) rules that address board administration.

The Attorney General determined that in adopting rules solid waste boards in Arkansas must comply with the ADA, A.C.A. 2515-201 et seq.

AG OPNION NO. 2011-075 and 2011-079

APERS Changes

Act 558 of 2011 amended A.C.A. 24-4-402, effective Jan. 1, 2012, to provide that an APERS employers will be responsible for employer contributions to APERS for retired employees that have returned to work and members on the Deferred Retirement Option plan (“DROP”).

The Attorney General determined that the act applies prospectively to all employees that returned to work and employees on the DROP Plan as of the effective date of the act or thereafter. Employers will not owe employer contributions retroactively.

Employees that have retired and returned to work or that have joined the DROP will not owe employee contributions to APERS.