Exploring the ways Issue 1 amends the state Constitution
Tuesday, March 14, 2017 9:00 am
By Sarah Giammo
AAC Law Clerk
“I am not interested in power for power’s sake, but I’m interested in power that is moral, that is right and that is good.” — Martin Luther King, Jr.
There are many provisions in Arkansas law that indicate that this great state and its people hold their public servants to a high moral standard. At the close of the 2016 General Election, Arkansans approved four new constitutional amendments, including Issue 1, which garnered more than 70 percent of the vote, with 747,856 votes for and 317,093 votes against, and codified several new ethically-minded reforms. In fact, there are four ways that Issue 1 amends the Arkansas Constitution. First, it extends the length of terms for county elected officials from two years to four years. Second, Issue 1 precludes county elected officials from simultaneously being appointed or elected to a civil office during their terms. Third, it defines “infamous crime” for the purposes of determining who is eligible to run for or continue to hold an elected position. Finally, Issue 1 allows candidates who are unopposed to be elected without their name appearing on the ballot. It may be difficult to predict exactly how the Arkansas Supreme Court will define each of these provisions, but some insight on how similar provisions have been interpreted and other background information will help understand exactly what each part of Issue 1 means for county elected officials going forward.
The main focus of Issue 1, or at least the part of Issue 1 that most people are familiar with, is an extension of the length of the term in office for county elected officials from two years to four years. Starting in the 2018 midterm election, county judges, sheriffs, circuit clerks, assessors, coroners, treasurers, county surveyors, county clerks and collectors will be elected to serve four-year terms. Justices of the peace, on the other hand, will still face re-election every two years. Issue 1 is the most recent adjustment Arkansans have made to the length of terms and term limits at various levels of state and local government in the last 30 years. In 2014, Arkansans extended the total number of years someone can serve in either chamber of the Arkansas General Assembly, after first enacting term limits for the legislature in 1992. In 1984, Arkansas was one of the last states to extend the length of terms for the governor from two years to four years when it passed Amendment 63. Arkansas adopted two-year terms for the governor in the Constitution of 1874, as a rejection of the executive power that was exercised during the Reconstruction era, but eventually everyone came to a consensus that two years was not long enough for a governor to effectively manage his or her administration. In the mid-1980s, when Amendment 63 was enacted, the Arkansas General Assembly was in session biennially, which meant that the governor only had one shot to change policies or enact any reforms. It was also difficult to find people to serve as agency department heads for two years. Some of the same parallels can be made between the difficulties of a governorship that lasts two years and terms for county elected officials that last only two years. Finding and replacing staff every two years when a new administration is elected, and tackling long-term projects such as budgeting and planning that often take more than two years to complete, are made more difficult by having such a short amount of time in office. Four-year terms will also give county elected officials the opportunity to spend more time focusing on the duties of their office, and less time on the campaign trail.
Another relatively straightforward provision of Issue 1 concerns unopposed candidates. Now codified as Article 3 §13, it permits the legislature to enact laws electing candidates who face no challengers without placing their names on the ballot. This means that when you go to vote, there will no longer be a list of the names of candidates running for office who are unopposed. The provision further states that unopposed candidates will be “certified as elected in the same manner as if the candidate had been voted upon at the election.” In the usual manner of certifying elections results, the county board of election commissioners is required to announce preliminary vote totals and unofficial results as they come in on election night; then the board has no less than two and no more than 15 days to certify the election and transmit the results to the secretary of state. Finally, § 13 states that if no other offices or issues are on the ballot, no election will be held.
Issue 1 also provides a much-needed definition for “infamous crime.” Most people, upon hearing the phrase “infamous crime, are likely to respond by asking what exactly that means. Issue 1 seeks to answer that question. Before Issue 1 was passed, Article 5 § 9 of the Arkansas Constitution stated that anyone who had been convicted of embezzlement of public money, bribery, forgery or other “infamous crimes” was ineligible to run for office. The definition of infamous crime has eluded Arkansas courts and lawmakers alike for a long period of time. The Arkansas Supreme Court first attempted to define infamous crime in 2005 in State v. Oldner, a case against the mayor of Dumas for removal of office. The state petitioned for removal after the mayor had been convicted of witness tampering, abuse of office and theft. The court held that the framers intended infamous crimes to include those that involve elements of deceit and dishonesty and that would “impugn the integrity of the office.” Addressing the issue again in 2010 in Edwards v. Campbell, the court elaborated on the standard, indicating that whether the underlying elements involve deceit or dishonesty is what is important, not how severe the commission of the crime was or the punishment imposed. This proved especially true in a case from 2013, State v.Cassell, in which a sheriff was removed from office for a misdemeanor theft conviction from 1979, after taking chickens from an overturned Tyson truck. The court emphasized that it would not consider the circumstances of the crime. Because the sheriff had been convicted of the infamous crime of theft, regardless of when it occurred or the fact that the chickens would have been discarded anyway, he was disqualified from serving in office. Some legislators believed that infamous crime could be defined still more specifically. In 2013 the legislature passed a bill to do just that; however, because the Arkansas Supreme Court cases concerning infamous crime were interpreting the Arkansas Constitution, the only way to effectively change the definition was through a constitutional amendment. State Rep. David Branscum, the sponsor for both Act 724 of 2013 and the infamous crime portion of the Issue 1 referendum, said his efforts were spurred by the recent Arkansas Supreme Court cases. Branscum wanted to prevent public officials from being subject to unnecessary litigation based on someone’s personal vendetta because, as he stated, without a precise definition of infamous crime, the phrase could be interpreted however one wanted to interpret it. Thus, Branscum’s proposed definition was intended to leave little to no room for subjective interpretation. Now the new subsection (b) of Article 5 § 9 reads: “‘infamous crime’ means: (1) a felony offense; (2) abuse of office as defined under Arkansas law; (3) tampering as defined under Arkansas law; or (4) a misdemeanor offense in which the finder of fact was required to find, or the defendant to admit, an act of deceit, fraud, or false statement, including without limitation a misdemeanor offense related to the election process.”
One final provision of Issue 1 amends Article 7 of the Arkansas Constitution by adding § 53, which states: “a person elected or appointed to any ... 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.” Article 7 § 53 will have the effect of limiting the capacities in which county elected officials can serve as members or officers of other boards and organizations. This provision is almost identical to Article 5 § 10, which applies to members of the Arkansas General Assembly: “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, both the drafters of the older provision that applies to legislators and the new amendment that applies to county officials declined to define the term “civil office,” ultimately leaving the interpretation up to the courts. This portion of Issue 1 will likely be the most contentious moving forward. To date, the Arkansas Supreme Court has said that “a civil office is a grant and possession of the sovereign power,” and sovereign power is the authority of the state to act. The court has further emphasized that Article 5 § 10:
[was] designed and intended as a protection against the possible conflicts in interests a member of the legislature might have as an elected official with the power, influence, and authority to create positions and offices, and the interest he might have as a private citizen who would desire to hold such civil office by appointment or election.
Moreover, the Arkansas Supreme Court and the Arkansas Attorney General have repeatedly stated that “[i]n many of the States the Constitution merely prohibits legislative representatives, during their terms, from holding an office created during that term, or where the salary of the office is increased during the term. But the language of our Constitution is broader.” The implication is that Article 5 § 10 does not simply prohibit legislators from taking a position that they themselves created or enhanced, the constitutional provision is meant to prevent legislators from using their position in office for self-aggrandizement. In defining what constitutes a civil office, the court has declined to lay down any bright line rules, but it has provided several features that typically make an “office” distinguishable from a regular “employment.” For example, unlike an employment, the compensation and duties of an office are usually provided by law, either by the Arkansas Constitution or by statute, and the responsibilities of an office continue even after the person holding the position changes. The court has provided an additional list of factors that tend to signify a civil office, which includes: taking an oath; giving or posting a bond (a written promise to pay money or perform some act if the person does not faithfully discharge the responsibilities of the office); and receiving a formal commission. No one factor is dispositive, but the absence of any or all of the factors would suggest that the position is employment instead of a civil office. Timing is very important where Art. 5 § 10 is concerned. The provision applies after a person is seated in the legislature and during the entire length of his or her term. The provision does not preclude a legislator from running for or being appointed to another position as long as the terms do not overlap. If the terms do overlap, however, the prohibition would apply, and resignation would not remedy the cause for concern. The fact that the official is not paid or serves in an ex-officio capacity also does not satisfy the prohibition. Ultimately for county elected officials, this provision may affect their eligibility to serve on various boards and commissions. Some of the positions the court has already deemed civil offices have included: municipal judge, county election commissioner, member of school board, member of county board of education, and prosecuting and deputy prosecuting attorneys, among others. To illustrate, for example, the attorney general found that a municipal housing commission is a civil office because (1) the position is created by state statute; (2) the tenure, compensation, and duties of the position are created by statute; (3) the duties of the office are public in nature; and (4) the duties are not affected by a change in the person of the incumbent. On the other hand, an auditor for the Arkansas Burial Association Board (ABAB) was not considered a civil office. Even though a statute established the ABAB, the statute did not set out the term or tenure of the auditors, the pay or the duties of the position. The auditors could have been hired via contract or agreement with the board. Article 7 § 53, may also affect county elected officials’ ability to seek a higher office. For example, because the length of their terms in office has been extended from two years to four years, it is possible that a house or senate seat will come open during their term. In that case, county elected officials will not be eligible to run for the open seat, and resignation from their county elected position will not fix the problem. Note that even though justices of the peace will continue to serve only two year terms, they too, will not be permitted to be elected or appointed to another civil office during their term.
Whether Issue 1 will accomplish everything it set out to accomplish by its various provisions remains to be seen. The creation of four-year terms and the provision enabling the legislature to pass laws permitting unopposed candidates to be elected without their names being published on the ballot, appear to be the easiest provisions to implement. It is unclear whether the new definition for “infamous crime” resolved all of the uncertainty with respect to which crimes should ultimately be classified as infamous, and there will be many details to sort out regarding which boards and commissions have positions that should be labeled “civil offices.”
CAL LEDBETTER, JR., THE ARKANSAS HISTORICAL QUARTERLY, 69-70 (Vol. 37, No. 1 1978).
State v. Oldner, 361 Ark 316, 323, 206 S.W.3d 818, 319 (Ark. 2005).
Edwards v. Campbell, 2010 Ark. 398, *9, 370 S.W. 250, 255.
State v. Cassell, 2013 Ark. 221, *7, 427 S.W.2d 663, 667.
Wood v. Miller, 154 Ark. 318, 322-23, 242 S.W. 573, 575 (Ark. 1922).
State Bd. Of Workforce Educ. v. King, 336 Ark. 409, 416, 985 S.W.2d 731, 734 (Ark. 1999).
Id. (quoting Harvey, 248 at 46, 450 S.W.2d at 288.)
Wood, 154 Ark. at 322-23, 242 S.W. at 575. (Emphasis added).
Ark. Op. Att’y Gen. 1999-396 (2000).
Lucas v. Futrall, 84 Ark. 540, 547, 106 S.W. 667, 669 (Ark. 1907).
Maddox v. State, 220 Ark 762, 763-64, 249 S.W.2d 972, 972-73 (Ark. 1952).
Ark. Op. Att’y Gen. 96-245 (1996). See also, Ark. Op. Att’y Gen. 2006-078 (2006).
Johnson v. Darnell, 220 Ark. 625, 629-630, 249 S.W.2d 5, 7-8 (Ark. 1952). See also, Jones v. Duckett, 234 Ark. 990, 992, 356 S.W.2d 5, 6 (Ark. 1962) (stating, “[w]e recently held in Johnson v. Darnell, that a state representative might, during his term of office, be elected to another office if his tenure there would not begin until after the expiration of his term of office as a legislator.”).
Jones, 234 Ark. at 992, 356 S.W.2d at 6. See also, Ark. Op. Att’y Gen. 2006-078 (2006).
King, 336 Ark. at 416, 985 S.W.2d at 734.
Wood, 154 Ark. at 323, 242 S.W. at 575. See also, Johnson, 220 Ark. at 629-630, 249 S.W.2d at 7-8.
Jones, 234 Ark. at 992, 356 S.W.2d at 6.
Bird v. State, 240 Ark. 743, 745, 402 S.W.2d 121, 123 (Ark. 1966).
Martindale v. Honey, 259 Ark. 416, 419, 533 S.W.2d 198, 199 (Ark. 1976).
Ark. Op. Att’y Gen. 96-147 (1996).
Haynes v. Riales, 226 Ark. 370, 376, 290 S.W.2d 7, 10-11 (1956).