AG Opinions: From salary adjustments to civil office

By Mark Whitmore, AAC Chief Legal Counsel

AG OPINION NO. 2018-002

The AG was asked whether the law expressly provides a penalty for carrying a concealed handgun without a license. The AG determined that legislative clarification is warranted. The AG explained that under AG Opinion No. 2015-064 the existence of a statutory regime for conceal carry for handguns in Arkansas represents the legal means to carry a concealed handgun in Arkansas. The AG clarified that the courts may apply a presumption that a person carrying a concealed handgun without a conceal carry permit has an unlawful intent and expose a person to arrest and conviction under Ark. Code § 5-73-120. The code explicitly states that it is permissible to carry provided the person has a valid conceal carry permit and is not in a prohibited place.

AG OPINION NO. 2018-033

The AG determined that a county election commissioner may legally recruit or encourage a candidate to run for office within the jurisdiction the election commissioner serves. However, the actions of recruiting and encouraging a candidate by the commissioner must occur prior to the formal filing of office. An election commissioner is prohibited from participating in the campaign of a candidate for office.

AG OPINION NO. 2018-013

The AG was asked: Can the salary of an elected county officer, including treasurer, be reduced during his or her term? When may a salary of an elected county position be reduced? The AG answered, “no” and explained that the salary of an elected county officer may not be reduced during the officer’s current term. Any decrease in an elected officer’s salary can’t take effect until January 1 following the next general election for that office, when the incumbent’s term-of-office expires. Amendment 55, § 5 of the Arkansas Constitution provides that the: “Compensation for each county officer shall be fixed by the Quorum Court within the minimum and maximum to be determined by law.” Section 5 of Amendment 55 further provides: “Compensation may not be decreased during a current term.” Ark. Code 14-14-1203(d) provides: “Any decrease in the annual salary or compensation of a county officer shall not become effective until January 1 following a general election held after the decrease has been fixed by the quorum court of the county.” The AG explained that the “general election” referenced is the regular November election in the even numbered years to fill an office, the term of which is scheduled to expire at that year’s end. Therefore, any reduction in salary cannot take effect until after the official’s current term in office has expired and the office has been refilled at the next general election. The AG noted as well that any compensation that is part of the county official’s salary or compensation cannot be reduced during the county official’s current term. Furthermore, the official’s salary or surplus pay for regular work or services may not exceed the maximum salary imposed by law. The AG cited AG Opinion No. 2013-148, which stated health insurance is compensation and likewise may not be reduced during the county official’s current term.

The following opinions relate to

Civil Office: Amendment 95

Amendment 95 of the Arkansas Constitution provides: (a) 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.

AG OPINION NO. 2017-115

This request for an opinion from the AG is one of several submitted by members of the General Assembly on their own behalf, on behalf of hundreds of county and district officials regarding “civil office,”and on behalf of the Governor and General Assembly. The AG was asked whether the following positions were civil offices: school teacher, school superintendents of smaller school districts, the auditor of the Arkansas Burial Association Board, the Baxter County Regional Medical Center Political Advisory Board, and a delegate to the Constitutional Convention. The request provided legal authority for each of his requests citing rulings from interpretation of a similar provision of the Arkansas Constitution under Article 5, §10 of the Arkansas Constitution applicable to state senators. The conclusions of the legal authority were that the foregoing positions are not civil offices. The AG found that the same definitional parameters apply in interpreting Amendment 95, Article 7, §53, as the parameters applied to Article 5, §10 of the Arkansas Constitution. Sen. Bryan King made requests for an opinion regarding whether various positions constitute civil offices under AG Opinion No. 2017-028 issued last summer.

AG OPINION NO. 2018-014

The AG determined that the position of city police officer is likely a civil office. The AG opined, however, that a city police officer could run for county elected office. The AG opined that Amendment 95, Article 7, § 53 of the Arkansas Constitution bars sitting county officers from being appointed or elected to a new civil office. The AG said the provision does not bar a police officer from continuing to hold the position that he or she held even if successfully elected to county office. The AG further declared that the Separation of Powers doctrine does not preclude being a city police officer and holding an office in a different level of government such as county office (the AG did not perceive an incompatibility of those offices).

AG OPINION NO. 2017-116

The AG concluded that the following positions were likely civil offices under the Arkansas Constitution Article 5, §10 and Article 7, § 53, members of: rural water boards; waterworks and public sewer facilities boards; airport commissions; members of the Arkansas Fire Protection Services Board; County Hospital Boards; County District Board of Health; Levee Boards; and Levee Improvement Districts. The AG reiterated that the law applicable to Arkansas Constitution Article 5, §10 should be equally applicable to Article 7, § 53, Amendment 95 of the Arkansas Constitution. The AG found that since there is no legislation regarding Southwest Mental Health Board and was unable to determine if that position was or was not a civil office.

AG OPINION NO. 2017-104

The AG concluded that a court would likely find there’s not a prohibition of a county official holding a position on the Intergovernmental Council under Ark. Code § 14-27-102 or the Electronic Recording Commission under Ark. Code § 15-4-3704. The law creating those positions simply impose additional duties on elected county officials and would not likely be considered by a court to be a separate civil office under the Arkansas Constitution Article 5, §10 and Article 7, § 53. The AG opined that service on the Work Force Development Board under Ark. Code §15-4-3704, may be deemed by court to be a separate civil office. It should be noted that the Work Force Development Board is a board constituted to assist the Governor and by law requires the appointment of a county judge, mayor, etc. Further legislative clarification of the position of Work Force Development Board may be warranted.

AG OPINION NO. 2017-124

Ark. Code § 7-5-111 provides that a person shall not run for election for more than one state, county, municipal district or township office if the elections are to be held the same date. The AG determined that elected school board members are not included and that the reference to “district” in Ark. Code § 7-5-111 is not a reference to school districts. The AG also says a person can legally run for school board member and another state, county, municipal, district or township office if the elections were held on the same date.

AG OPINION NO. 2017-114

The AG concluded that the following positions were likely civil offices under the Arkansas Constitution Article 5, §10 and Article 7, § 53, members of: County Fair Board, County Soil Conservation Board, local museum board or commission, County Library Board, and Rural Development Authority. The AG concluded that membership on a Farm Bureau Board, the Chambers of Commerce and the Arkansas Cattleman’s Foundation Board are not civil offices. The AG noted that there was insufficient information to determine whether the Design Review Board for West Memphis is a civil office for purposes of these constitutional sections.

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