Can members of an Arkansas city advertising and promotion commission keep serving after their terms expire?
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This page answers the general question as of 2013. Ask about yours and see what current Arkansas law means for your facts, with citations you can check.
Plain-English summary
An Arkansas legislator asked about five seats on the City of Hardy's advertising and promotion commission. City minutes did not show that the commission submitted candidates or that the city council approved them through a recorded motion and vote. The Attorney General assumed that each person originally received a valid appointment but that the term had expired.
On those assumed facts, Attorney General Dustin McDaniel concluded that the five expired terms created vacancies that could be filled under the governing appointment process. The people occupying the seats were nonetheless de facto officers. They could continue to serve until reappointed or replaced, and their official actions remained valid and enforceable during that period.
The opinion did not determine whether any original appointment was invalid. Its conclusion depended on the stated assumption that each incumbent had been validly appointed to a term that later expired.
Currency note
This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Who this opinion addressed in 2013
City councils
The opinion treated the five seats as vacancies open to the appointment process. It did not treat the lack of a current appointment record as immediately invalidating every action taken by the incumbents.
Advertising and promotion commissioners
An incumbent whose valid term had expired could continue as a de facto officer until reappointed or replaced. The opinion said actions taken in that status were valid and enforceable.
City clerks and municipal attorneys
The analysis turned on both the statutory appointment procedure and the factual assumption of a valid original appointment. The opinion did not establish what had happened in Hardy's earlier appointments beyond the facts supplied by the requester.
Common questions
Q: Did an expired commission term leave the seat occupied for a new full term? A: No. The AG said expiration created a vacancy that was subject to being filled under the governing law.
Q: Did the incumbent have to stop serving immediately when the term expired? A: No. Under the opinion, a validly appointed incumbent became a de facto officer and could continue until reappointed or replaced.
Q: Were the incumbent's actions invalid after the term expired? A: No. The opinion reaffirmed earlier AG opinions stating that the de facto officer's actions remained valid and enforceable.
Q: Did the AG decide whether Hardy's appointments had originally been valid? A: No. The opinion expressly assumed that each person had been validly appointed to a term that had since expired.
Background and statutory framework
The opinion described a municipal advertising and promotion commission as having two members of the municipal governing body, four tourism-industry members, and one at-large member under A.C.A. § 26-75-605(a). Tourism-industry and at-large appointments carried four-year terms. A vacancy in those positions was filled by the remaining commission members with approval from the city's governing body.
The AG relied on prior Arkansas opinions, including Opinions 2010-168 and 99-024, for the de facto officer rule. He stated that the governing law had not changed enough to alter their conclusion.
Citations and references
Statute:
- A.C.A. § 26-75-605(a)
Prior AG opinions:
- Op. Att'y Gen. 2010-168
- Op. Att'y Gen. 99-024
Source
Original opinion text
STATE OF ARKANSAS
THE ATTORNEY GENERAL
Dustin McDANIEL
Opinion No. 2013-028
May 23, 2013
The Honorable James Ratliff
State Representative
Post Office Box 791
Imboden, Arkansas 72434-0791
Dear Representative Ratliff:
This is my opinion on your question concerning the City of Hardy advertising and promotion (“A&P”) commission.
By law, an A&P commission has two members who are also members of the municipal governing body; four members representing the tourism industry; and one at-large member.' An appointment to a tourism-industry or at-large position is for a four-year term.2 A vacancy in one of those positions is “filled by appointment made by the remaining members of the commission, with the approval of the governing body of the city.”
You state as background for your particular question:
In an examination of city minutes of the past 4 years, only one commissioner name appears to have been brought forward for approval, but the minutes of that meeting does not contain a record of motion, second, discussion, or vote showing approval.
'A.C.A. § 26-75-605(a) (Repl. 2008),
2 Id.
> ALC.A. § 26-75-605(d).
323 CENTER STREET, SUITE 200 * LITTLE Rock, ARKANSAS 72201 TELEPHONE (501) 682-2007 « Fax (501) 682-8084 INTERNET WEBSITE * http://www.ag.state.ar.us/
The Honorable James Ratliff
State Representative
Opinion No. 2013-028
Page 2
There [are] at least three other positions that names have been given (hearsay) as filling those terms, but no record of any kind shows in city minutes of the last four years.
Your question is:
If there is no record of candidates being brought forward for approval, by the commission, and no documentation in council minutes that approval was made with a motion, second, and vote by the council, can it be assumed that those positions are void and should be revisited to be filled with the proper processes?
Because your request is not explicit on the matter, I will assume that someone claims to occupy each of the five positions at issue, and that each claimant was validly appointed to a now-expired term.
RESPONSE
Under the facts given and assumed, it is my opinion that the five positions are vacant and subject to be filled, but that the individuals claiming the five positions are de facto officers who may continue to serve until replaced.
A regular term’s expiration results in a vacancy to be filled in accordance with governing law.’
Prior opinions of this office are to the effect that an A&P commissioner whose term expires may continue to serve, as a de facto officer whose actions are valid and enforceable, until reappointed or replaced.” The discussion in those opinions is sufficiently thorough, and governing law is sufficiently unchanged, that I will simply say now that I reaffirm my own conclusion and fully agree with my predecessor’s.
4 Id
> Op. Att’y Gen. 2010-168, 99-024.
The Honorable James Ratliff
State Representative
Opinion No. 2013-028
Page 3
Assistant Attorney General J. M. Barker prepared this opinion, which I approve.
4
UST J
Attorney General
‘ er
Sincerely, “
DM:JMB/cyh
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