Clarifying civil offices

By Mark Whitmore, AAC Chief Legal Counsel & Blake Gary, AAC Law Clerk

An 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 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,
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 Hammer , 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 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 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 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 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 to provide the county official with additional duties.

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