Research Corner

AAC RESEARCH CORNER Clarifying civil offices

Story by Mark Whitmore AAC Chief Legal Counsel & Blake Gary AAC Law Clerk

n avid reader of the County Lines magazine may recall an article from the Winter 2017 issue entitled “Exploring the Ways Issue 1 Amends the State Constitution” written by former AAC law clerk Sarah 1 Giammo. As discussed in the article, Arkansans approved Issue 1 with 70.22 percent voting yes in the 2016 November General Election, resulting in the 95th amendment to the Arkansas Constitution of 1874. Sen. Bryan King, along with Rep. Jack Ladyman and Rep. David Branscum, were sponsors of Senate Joint Resolution (SJR) 5, House Joint Resolution (HJR) 1027, and HJR 1006, respectively, that became Amendment 95. The passage of Issue 1 made four changes to the Arkansas Constitution. First, it extended the length of terms for county officials from two years to four years. Second, it established the civil office provision for county officials. Third, it defined “infamous crime” for the purposes of determining who is eligible to run for or continue to hold an elected position. Finally, it allowed candidates who are unopposed to be elected without their name appearing on the ballot.

As mentioned above, one of the ways Issue 1 amended the state constitution was by adding a civil office provision for county officials. Amendment 95 amended Article 7 of the Arkansas Constitution to add section 53 which reads, “A person elected or appointed to any of the following county offices shall not, during the term for which he or she has been elected, be appointed or elected to any civil office in this state: (1) County judge; (2) Justice of the Peace; (3) Sheriff; (4) Circuit clerk; (5) County clerk; (6) Assessor; (7) Coroner; (8) Treasurer; (9) County surveyor; or (10) collector of taxes. Despite the subject and style change, Article 7, section 53 now reads like Article 5, section 10, a similar provision placed on sitting legislators that states, “No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State.” However, the drafters of both provisions declined to define the term “civil office,” leaving the interpretation up to the courts.

In an effort to clear the haziness of civil offices, Sen. King requested an opinion of the Attorney General in March of 2017 on which particular appointments or elective positions a county official or justice of the peace might legally hold. While the Attorney General did not make a determination as to the 23 specific boards or commissions in question, she did shed light

and provided guidance on the prevailing law of what constitutes a “civil office” in the context of Article 5, Section 10. The Attorney General opined that the corpus of law used to make civil office determinations under Article 5, § 10 should be equally applicable to the provisions of Article 7, A Section 53. The Attorney General also provided certain indicia of a civil office including, but not limited to: (1) the duty of the office is a continuing one; (2) the public office is defined by rules prescribed by government and not by contract; (3) the individual is appointed by government to perform; (4) the office is created by law; (5) the tenure, compensation, and duties of the position is fixed by law; (6) the public office requires the taking of an oath of office, the receipt of a formal commission, and the taking of a bond. In early October of 2017, five legislators, Rep. Mike Holcomb, Rep. Sarah Capps , Rep. Lanny Fite , Rep. Kim Ham9 mer , and Rep. John Maddox , each requested an opinion from the Attorney General asking: (1) whether certain boards and commissions were “civil offices” under Article 5, section 10 and (2) if so, whether the boards and commissions would also be considered “civil offices” under Article 7, section 53. Collectively, the representatives inquired about 33 different positions. The Attorney General opined on which boards and commissions she believed were and were not “civil offices”. However, legislation is needed to clarify three issues: (1) whether a county official could run and be elected to a civil office during their current term; (2) whether a county official may be appointed to a position on an advisory board; and (3) whether a county official holds a civil office when state law requires their presence on the board. First, the plain language of Article 7, section 53 states in relevant part, “a person elected or appointed to any of the following county offices shall not, during the term for which he or she has been elected be appointed or elected to any civil office.” Based on the language of this provision, it might appear that a county official would be prohibited from running and being elected to their own position because the language states a county official cannot be elected to a civil office during the term they are serving. The language of Article 7, section 53 was meant to replicate the language in Article 5, section 10, however, the language of Article 5, section 10 was originally drafted when legislators took office the day they were elected in November. Today, county officials are elected in November, but do not begin their term until January. Second, as the leaders of county government, county officials are often appointed to boards or commissions that are meant 2 to advise certain individuals and entities such as the Governor, the General Assembly, and state agencies. If an advisory board is deemed to be a civil office, it not only puts the Governor or

3 4

5 6 7 8 10 11

the General Assembly in a bind by not being able to appoint a county official to the position, but it also excludes proper representation of county government.

Finally, state statutes require many county officials to serve on certain boards, such as intergovernmental cooperation councils, county equalization boards, and the State Board of Election Commissioners. In these situations, the Attorney General has recently opined that it is more likely that the legislature has simply added duties to the county official more than it has created an additional civil office for the official to hold.

In preparation for the upcoming legislative session, the Association of Arkansas Counties has drafted legislation sponsored by Rep. Holcomb to clarify the issues mentioned above. First and foremost, the bill clarifies that county officials can actually be elected to a civil office during their term. In reference to Article 5, Section 10, the Arkansas Supreme Court has previously held the provision relates to the tenure, or the actual term of the office. For example, a County Judge may be elected state representative on November 6 (during his term as County Judge), but he does not hold two civil offices. The County Judge finishes the year out as County Judge and begins the new year as a state

representative. Next, the bill codifies 18 positions that have been deemed by the courts and opined by the Attorney General to be civil offices. Codifying these positions will allow anyone to look up the statute to determine if a position constitutes a civil office and determine whether Article 7, Section 53 is implicated. It is important to note, some courts have held that Article 7, Section 53 only prohibits a sitting county official from being appointed or elected to another civil office, it does not prohibit a person 12 who holds a civil office from being appointed or elected to a county position or as a justice of the peace. The bill also clarifies that a civil office does not include a position that a county official may be appointed to on an advisory board, administrative board, or task force. This will allow county officials to continue to be appointed to positions that advise the Governor or General Assembly to allow proper representation of county government. Finally, the bill clarifies that a civil office does not include a 13 position that a county official is required to serve by law. As mentioned above, the Attorney General has opined that when the legislature enacts a statute requiring a county official to be on a board, the intent is not to put them in another civil office, but

14 15

1. Sarah Giammo, Exploring the ways Issue 1 amends the state Constitution, http://content.yudu.com/libraryHtml/A42t4c/ Winter2017 CountyLines/reader.html?page=14 (last visited Nov. 19, 2018). 2. Ark. Op. Att’y Gen. 2017-028 (2017). 3. See generally Wood v. Miller, 154 Ark. at 322-23 (1922) (“A civil office is a grant of possession of the sovereign power.”); Harvey v. Ridgeway, 248 Ark. 35, 46, 450 S.W.2d 281, 287 (1970) (“We are of the opinion that the phrase ‘any civil office under this State’ refers to an office created by civil law within one of the only three branches of government provided for under the present Constitution of this state.”). 4. Ark. Op. Att’y Gen. 2017-028 (2017). 5. E.g., Lucas v. Futrall, 84 Ark. 540, 106 S.W. 667 (1907) (“Where an office is created, the law usually fixes the compensation, prescribes its duties, and requires that the appointee shall give a bond with sureties for the faithful performance of the service required.” (quoting Hall v. Wisconsin, 103 U.S. 5, 26 (1880))); Haynes v. Riales, 226 Ark. 370, 290 S.W.2d 7 (1956) (“Briefly stated, a position is a public office when it is created by law, with duties cast on the incumbent which involve some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent; while a public employment, on the other hand, is a position in the public service which lacks sufficient of the foregoing elements or characteristics to make it an office.” (quoting Bean v. Humphrey, 223 Ark. 118, 264 S.W.2d 607, 609 (1954))); Martindale v. Honey, 259 Ark. 416, 533 S.W.2d 198 (1976). 6. Ark. Op. Att’y Gen. 2017-114 (2018) (opining that directors of a County Soil Conservation Board and members of certain public facilities boards hold civil offices). 7. Ark. Op. Att’y Gen. 2017-112 (2018) (opining that county election commissioners, members of the State Board of Pardons and Paroles, members of the Board of Trustees of Southern Arkansas University, members of local School Boards, members of the State Board of Career Education, sheriffs and deputy sheriffs, and city police officers hold civil offices); see also, Ark. Op. Att’y Gen. 2011-123 (2011) (opining that police officers, sheriffs and deputy sheriffs are officers for purposes of the constitution); Hensley v. Holder, 228 Ark. 401, 307 S.W.2d 794 (1957) (identifying a sheriff deputy as an officer and not as an employee); Starnes v. Sadler, 237 Ark. 325, 372 S.W.2d 585 (1963) (holding a member of the General Assembly cannot serve as a member of the State Board of Pardons and Paroles during the term he is serving in the General Assembly). 8. Ark. Op. Att’y Gen. 2017-116 (2018) (opining commissioners of rural water boards or regional water boards, waterworks and public sewers facilities boards, airport commissions, the Arkansas Fire Protection Service Board, county hospital boards, county or district boards of health, and levee boards or levee improvement district boards are likely civil offices). 9. Ark. Op. Att’y Gen. 2017-115 (2018); See also Maddox v. State, 220 Ark. 762, 249 S.W.2d 972 (1952) (holding a school teacher whose tenure, compensation, and duties all fixed by his contract with the school boards is an employee rather than an officer and holding that a superintendent of a small school district is not a civil office); Haynes v. Riales, 226 Ark. 370, 290 See “CIVIL OFFICE” on Page 14 >>>

CIVIL OFFICE

Continued From Page 13 <<<

S.W2d 7 (1956) (An auditor for the Arkansas Burial Association Board is a contracted employee, not a civil office); and Harvey v. Ridgeway, 248 Ark. 35, 450 S.W.2d 281 (1970) (holding a delegate to a constitutional convention is not a civil officer because the delegate would not be serving within one of the three branches of government). 10. Ark. Op. Att’y Gen. 2017-104 (2018) (opining that Ark. Code Ann. § 14-27-101 – 104, which created County Intergovernmental Cooperation Councils, and Ark. Code Ann. § 14-2-305, which created the Electronic Recording Commission, are not civil offices and merely impose additional duties on the elected county officials required to serve on these commissions). 11. Ark. Const. of 1874, art. V, § 16 (repealed 2014). When Article 5, section 10 was adopted, Article 5, section 16 stated in relevant part, “the term of all members of the General Assembly shall begin on the day of their election. 12. See Ark. Op. Att’y Gen. 2017-028 (2017). 13. Compare Johnson v. Darnell, 220 Ark. 625, 630, 249 S.W.2d 5, 8 (Ark. 1952), (holding that a state representative, whose term ended on January 1, 1951, did not violated Article 5, section 10 by running for and being elected as municipal judge for a term that would begin on January 1, 1951), with, Jones v. Duckett, 234 Ark. 990, 992, 356 S.W.2d 5,6 (Ark. 1962) (holding that even though Senator Jones lost in the primary election, his term as senator did not expire until January 1, 1961, thus he could not hold another civil office until his term as senator expired) 14. See Ark. Op. Att’y Gen. 2017-114 (2017) and Ark. Op. Att’y Gen. 2017-116 (2017) (inferring that advisory boards are not “civil offices” by mentioning that the specific duties of a civil office go beyond the scope of an advisory role). 15. See Ark. Op. Att’y Gen. 2017-028 (2017) (opining that a county clerk’s service as secretary of his or her county’s property tax assessment equalization board had few, if any, of the indicial described to be a “civil office” and it appeared that the legislature simply added duties for the county clerk along with those already prescribed by law); see also Sparling v. Refunding Board, 189 Ark. 189 (1934) (rejecting a challenge to the “Refunding Board”, which consisted of the Governor, Lieutenant Governor, treasurer of state, secretary of state, state auditor, Attorney General, and state bank commissioner, and holding that the members of the refunding board are not holding or performing the duties of more than one office, but only performing additional duties imposed by the act on the holders of the respective offices).