In Arkansas, can a quorum court member also sit on the board of a nonprofit that gives grants to a county-owned animal shelter?

Plain-English summary

Senator Uvalde Lindsey asked the AG whether it created a conflict of interest for members of the quorum court (the county's legislative body) to also sit on the board of a locally created nonprofit that solicits funds and awards grants to a county-owned animal shelter. He followed up with two contingent questions: if there is a conflict, can the members abstain or participate in discussions, and can the nonprofit board condition any grant on the board's having operational control or oversight of the shelter.

AG Dustin McDaniel found no conflict. He identified two sources from which a dual-service conflict could arise: an express constitutional or statutory prohibition, and the common-law doctrine of incompatibility. He found no constitutional or statutory provision blocking the arrangement and noted that prior AG opinions limit the common-law incompatibility doctrine to two public positions. Because the nonprofit board seat is private, not public, the doctrine does not apply. The "no" answer to the first question made the second question moot.

On the third question (whether the nonprofit could condition grants on oversight rights over the shelter), the AG declined to assess the legality of the nonprofit's proposed offer. He explained that the county judge, not the quorum court, has authority over the "administration, care, and keeping of [] county property," including the right to assign or decline to assign use of that property. The county judge would decide whether to accept such an offer.

Currency note

This opinion was issued in 2014. 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.

Common questions

Q: In Arkansas, when does serving on two boards create a "conflict of interest" that prevents one person from holding both positions?
A: According to the opinion, only when an express constitutional or statutory provision says so, or when the common-law doctrine of incompatibility applies. That doctrine applies only when both positions are public offices. Two examples of incompatibility under prior AG opinions: simultaneously serving in two offices where one supervises the other, or in two offices with conflicting fiduciary duties to different governmental bodies.

Q: What is the common-law doctrine of incompatibility?
A: The opinion says prior AG opinions have applied the doctrine only when both positions are public. The nonprofit board position in this question was private, so the AG found the doctrine inapplicable.

Q: Did the AG say the dual service was a great idea?
A: The AG found no prohibition on holding the two positions simultaneously. Because of that answer, he treated the question about abstaining or participating in discussions as moot. The opinion gives no recusal rule.

Q: Who actually has authority over a county-owned animal shelter?
A: The county judge. The opinion quotes the judge's authority over "the administration, care, and keeping of [] county property" and the right to "assign or not assign the use of such property." The AG said the judge would decide whether the nonprofit could have control or oversight over the shelter.

Q: Could the nonprofit demand that its board oversee the shelter as a condition of any grant?
A: The AG declined to assess whether the nonprofit could lawfully make that offer. He said the county judge, not the quorum court, would decide whether to accept an offer of control or oversight over county property.

Q: Does the answer change if a quorum court member became the nonprofit's main donor?
A: The opinion did not address a member's personal donations to the nonprofit or a vote involving those donations. Its answer concerned holding the two positions simultaneously.

Background and statutory framework

The AG distinguished the quorum court from the county judge. He said the judge has authority over the administration, care and keeping of county property and would decide whether the nonprofit could have control or oversight of the shelter.

On dual service, the AG looked for a constitutional or statutory prohibition and considered the common-law doctrine of incompatibility. He found no provision prohibiting this arrangement and said the doctrine applies only to two public positions, while this nonprofit board seat was private.

A consistent thread in prior AG opinions, including the one cited in 2013-125, is that the incompatibility doctrine reaches only two public offices. A public official's voluntary service on a private nonprofit's board does not trigger the doctrine because the second position is not a public office at all. This does not mean the dual service is risk-free in every instance: where a quorum court member would vote to send county money to a nonprofit on whose board the member sits, separate ethics rules and disclosure obligations might apply. The opinion did not address those rules; the senator's question was specifically framed as one of conflict of interest preventing dual service.

The AG said the bar on private practice prevented him from assessing whether the nonprofit could lawfully make the proposed offer.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
DUSTIN McDANIEL
Opinion No. 2013-125
January 13, 2014

The Honorable Uvalde Lindsey
State Senator
2257 Gentle Oaks Lane
Fayetteville, Arkansas 72703

Dear Senator Lindsey:

You have asked for my opinion on the following three questions:

1. Is it a conflict of interest for quorum court members to sit on the board of a locally created nonprofit [that] awards or declines to award grants to a county-owned animal shelter? (This nonprofit was mainly created to solicit funds and award grants to the shelter.)

2. [If the answer to Question 1 is "yes," m]ay the quorum court members simply abstain from voting when matters come up that affect the animal shelter? If the quorum court members cannot vote, may they still be allowed to participate in discussions regarding budgetary or other items affecting the animal shelter?

3. May the board on which the quorum court members sit make a condition of any grant that board members or their designees have any sort of operational control or oversight regarding day-to-day operations of the shelter?

RESPONSE

The answer to your first question is "no," which renders your second question moot. I am not entirely sure what your third question is asking. Taken on its face, it asks me to opine on whether a private, nonprofit corporation can make such an offer. To answer such a request, I would have to engage in the private practice of law, which I am prohibited from doing. Taken in its wider context, however, perhaps the question seeks my opinion on whether it would be a conflict of interest for the quorum court to accept such an offer. In that case, the question is based on a flawed assumption. The county judge, not the quorum court, has the authority to negotiate and accept such offers.

DISCUSSION

Question 1: I assume you are asking whether it would be a conflict of interest for a quorum court member to simultaneously serve on the quorum court and hold his or her position on the board of this particular private nonprofit. Conflicts of interest that would preclude dual service can arise from either a constitutional or statutory prohibition or from the common law doctrine of incompatibility. I am unaware of any constitutional or statutory provision that prohibits the scenario you have described. Further, this office has previously opined that the common law doctrine of incompatibility only applies in the context of two public positions. Because the two positions at issue here are not both public, it appears that the common law doctrine does not apply. Therefore, in my opinion, there is no prohibition on holding these two positions simultaneously.

Question 2: My response to Question 1 renders this question moot.

Question 3: I am not entirely sure what this question is asking. Taken on its face, it asks me to assess the legality of a business offer from a private, nonprofit corporation. As I am prohibited from the private practice of law, I am unable to assess the legality the board's proposed actions.

Given that your other questions are in the context of conflicts-of-interest, perhaps you are asking whether it would be a conflict for such an offer to be accepted by the quorum court. If that is your question, then I must point out that it seems to mistake the respective power and authority of the quorum court and the county judge. The county judge, not the quorum court, has authority over "the administration, care, and keeping of [] county property," which includes the "right to assign or not assign the use of such property...." Given this authority, it is the county judge, not the quorum court, that would decide whether the private corporation could have some type of control or oversight over the shelter.

Assistant Attorney General Ryan Owsley prepared the foregoing opinion, which I hereby approve.

Sincerely,
DUSTIN McDANIEL
Attorney General
DM:RO/cyh