What counts as an 'immediate family member' for purposes of Arkansas county ethics rules on conflicts of interest?

Plain-English summary

Roger Norman, the Legislative Auditor, asked AG Dustin McDaniel about A.C.A. § 14-14-1202, Arkansas's county-government ethics statute. The statute has two relevant pieces:

• Subsection (a)(3) prohibits county officials from using their positions to secure unwarranted privileges, exemptions, advantages, contracts, or preferential treatment for themselves "or an immediate member of his or her family."
• Subsection (c)(1) prohibits county officers and employees from being "interested, either directly or indirectly," in any county contract or transaction.

Three questions:

Q1: What does "immediate member of his or her family" mean?

The statute does not define it. Absent a controlling legislative definition or case on point, the AG predicted a court would look to A.C.A. § 21-8-304, a parallel state ethics provision that defines "immediate family" with specificity (covering spouse, children, parents, siblings, and certain in-laws and step relationships).

Q2: What does "interested, either directly or indirectly" mean, and does a family tie alone establish it?

The AG read the provision as targeting the official's personal interest, not the family relationship by itself. So a family relationship "standing alone" ordinarily would not establish a violation of (c)(1). But it could be relevant evidence in a particular case: if the official's spouse owns a vendor that gets a county contract, that family tie is part of the factual landscape for determining whether the official is "interested" within the meaning of the statute.

Q3: How do (a)(3) and (c)(1) relate?

Both codify aspects of the common-law conflict-of-interest principle, which centers on whether an official is acting to further personal interest rather than the public's. But they are not directly tied at the operational level. The (a)(3) "use-of-position" prohibition requires the official to leverage their position to obtain something. The (c)(1) "interested in a contract" prohibition does not require such use. So (c)(1) can apply even where (a)(3) does not. The (a)(3) language about family does not narrow or define the (c)(1) "interested" inquiry.

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

Does this statute apply to elected officials, county employees, or both?
A.C.A. § 14-14-1202 applies to "county government officers and employees," which encompasses both elected officials and salaried employees of county offices.

What if my spouse works for a company that sells goods to the county?
At the time of this opinion, that family tie did not by itself violate the statute. The legal inquiry was whether the county officer or employee was "interested" in the transaction, which depended on facts beyond the relationship: whether the family member's income depends materially on the transaction, whether the officer benefits financially, whether the officer participated in approving the transaction, and so on.

Where would a court look for the meaning of "immediate family"?
The AG predicted A.C.A. § 21-8-304. That statute defines "immediate family" for state ethics purposes and generally includes spouse, children, parents, siblings, and certain in-law and step relationships. The exact contours of "immediate family" can vary across statutes, so the borrowing is by analogy, not by direct application.

What is the "common law conflict of interest" principle?
A long-standing legal principle that public officials cannot use their offices to advance personal interests at public expense. Arkansas courts have applied this principle to county officials even outside the four corners of statute. A.C.A. § 14-14-1202(c)(1) is one statutory codification of part of that broader principle.

Are there other Arkansas statutes with similar bans?
Yes. State officials and employees are covered by separate ethics statutes in title 21. Municipal officials have their own ethics provisions. The county statute at issue here, § 14-14-1202, sits in title 14 (the local-government title) and applies specifically to county-level officers and employees.

Background and statutory framework

A.C.A. § 14-14-1202 is the county-government ethics statute, codifying conflict-of-interest principles for county officers and employees. Subsection (a)(3) addresses use-of-position to secure unwarranted advantages for the official or "an immediate member of his or her family." Subsection (c)(1) prohibits the officer or employee from being interested, directly or indirectly, in any county contract or transaction.

A.C.A. § 21-8-304 is the parallel ethics statute for state officials and includes a more detailed definition of "immediate family." The AG predicted that Arkansas courts faced with construing § 14-14-1202(a)(3) would borrow from § 21-8-304 as the closest available statutory definition, consistent with the in pari materia principle of construing related statutes consistently.

The AG's analytical move (borrowing a definition from a parallel statute when the operative statute is silent) is a standard Arkansas statutory-construction technique. The opinion preserves the legislature's policy choices while filling a definitional gap with the closest available statutory analogue.

Citations

• A.C.A. § 14-14-1202(a)(3) (county officer use-of-position, including for immediate family)
• A.C.A. § 14-14-1202(c)(1) (county officer interest in contract or transaction)
• A.C.A. § 21-8-304 (state ethics "immediate family" definition, analogous source)

Source

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

Original opinion text

STATE OF ARKANSAS

Tue ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2013-134

February 11, 2014

The Honorable Roger A. Norman
Legislative Auditor

Division of Legislative Audit

172 State Capitol

Little Rock, Arkansas 72201-1099

Dear Mr. Norman:

You have requested my opinion on the following questions regarding A.C.A. § 14-
14-1202, which deals with ethics for county government officers and employees:

I. What does Ark. Code Ann. § 14-14-1202(a)(3)’s phrase
“immediate member of his or her family” mean, in terms of
family relationships? What family relationships are
encompassed by this phrase?

2. What does Ark. Code Ann. § 14-14-1202(c)(1)’s phrase
   “interested, directly or indirectly” mean, in terms of family
   relationships? Could a family relationship, by itself, constitute
   a direct or indirect interest under the Code section?

3. What relationship does Ark. Code Ann. § 14-14-1202(a)(3)
   have to Ark. Code Ann. § 14-14-1202(c)(1)? Does the former
   provision give guidance as to the meaning of direct or indirect
   interests in the latter provision?

As background for these questions, you note that you are “finding a number of
instances where a county officer’s or employee’s family member is contracting or
transacting business with the county employing the officer or employee” and that
“(t]he family member may be doing business with the county personally or
through a business entity.”

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Roger A. Norman, Legislative Auditor
Opinion No. 2013-134
Page 2

RESPONSE

I cannot provide a definitive response to your first set of questions in the absence
of a controlling legislative definition or judicial authority on point. I can only
opine, as explained further below, that a court faced with interpreting the phrase
would likely look to other similar ethics provisions to determine its meaning and
scope. It is my opinion in response to your second set of questions that the mere
existence of a family relationship ordinarily would not, standing alone, establish a
violation of A.C.A. § 14-14-1202(c)(1). But the existence of a family relationship
could in some cases undoubtedly be relevant to the factual question whether an
officer or employee is “interested” in a county contract or transaction and thus in
violation of subsection (c)(1). With regard to your third set of questions,
subsections 14-14-1202(a)(3) and (c)(1), taken together, appear to codify certain
aspects of the common law conflict of interest principle, the focal point of which
is the furtherance of the officer’s personal interest. The subsections do not
otherwise appear to be directly related.

Question I - What does Ark. Code Ann. § 14-14-1202(a)(3)’s phrase “immediate
member of his or her family” mean, in terms of family relationships? What
family relationships are encompassed by this phrase?

Arkansas Code Annotated § 14-14-1202(a) provides as follows:

PUBLIC TRUST. (1) The holding of public office or employment is
a public trust created by the confidence which the electorate reposes
in the integrity of officers and employees of county government.

(2) An officer or employee shall carry out all duties assigned by law
for the benefit of the people of the county.

(3) The officer or employee may not use his or her office, the
influence created by his or her official position, or information
gained by virtue of his or her position to advance his or her
individual personal economic interest or that of an immediate
member of his or her family or an associate, other than advancing
strictly incidental benefits as may accrue to any of them from the
enactment or administration of law affecting the public generally.’

"A.C.A, § 14-14-1202(a) (Supp. 2013) (emphasis added).

Roger A. Norman, Legislative Auditor
Opinion No. 2013-134
Page 3

Section 14-14-1202 does not define what is meant by “immediate member of his
or her family,” nor do we have the benefit of judicial authority directly on point.
But under the rule of construction known as “in pari materia,” statutes relating to
the same subject matter should be read together and in a harmonious manner.” I
note in this regard that the language of subsection 14-14-1202(a)(3) respecting the
use of a county position to further one’s personal interest or that of a family
member bears a striking similarity to the language of another ethics statute, A.C.A.
§ 21-8-304. This Code section applies to state and local public officials and
employees (including those at the county level),® so it also encompasses those
covered by A.C.A. § 14-14-1202. Section 21-8-304 states in pertinent part:

No public servant shall use or attempt to use his or her official
position to secure special privileges or exemptions for himself or
herself or his or her spouse, child, parents, or other persons standing
in the first degree of relationship, or for those with whom he or she
has a substantial financial relationship that are not available to others
except as may be otherwise provided by law.’

In my opinion, a court faced with the question would likely look to this similar
ethics provision and determine that the phrase “immediate member of his or her
family” in A.C.A. § 14-14-1202(a)(3) does not extend further than A.C.A. § 21-8-
304(a), in terms of the class of individuals covered.’ Absent clarifying legislation,
I am unable to opine further regarding the meaning and scope of A.C.A. § 14-14-
1202(a)(3).°

? E.g., Mays v. Cole, 374 Ark. 532, 289 S.W.3d 1 (2008); Weiss v. Maples, 369 Ark, 282, 253 S.W.3d 907
(2007); Monday v. Canal Insurance Company, 348 Ark. 435, 73 S.W.3d 594 (2002).

3 See A.C.A. § 21-8-301(a) (Supp. 2013).

• A.C.A. § 21-8-304(a) (Supp. 2013) (emphasis added).

° Accord Op. Att’y Gen, 88-357 (opining that A.C.A. § 21-8-304(a) “may be relied upon by analogy as
offering guidance in construing ... A.C.A. § 14-14-1202(a).”). Several other previous Attorney General
opinions cite a different ethics statute — A.C.A. § 19-11-701 — for guidance in determining the scope of
A,C.A. § 14-14-1202(a)(3). In Op. Att’y Gen. Nos. 87-462 and 87-269, reference is made to A.C.A. § 19-
11-701(11) (Repl. 2007), which defines “immediate family” as “a spouse, children, parents, brothers and
sisters, and grandparents.” While I cannot predict with certainty how a court would decide the issue, the
substantive language of A.C.A. §§ 14-14-1202(a)(3) is much more similar to A.C.A. § 21-8-304(a),
prompting me to surmise that a court would most likely look to the latter provision by analogy.

® It should be noted, however, that A.C.A. § 14-14-1202 is a penal provision (see subsection 14-14-
1202(d)(3)), and as such must be strictly construed. See generally Austin v. State, 259 Ark. 802, 536
5.W.2d 699 (1976); Knapp v. State, 283 Ark. 346, 66 S.W.2d 433 (1984),

Roger A. Norman, Legislative Auditor
Opinion No. 2013-134
Page 4

Question 2 - What does Ark. Code Ann. § 14-14-1202(c)(1)’s phrase “interested,
directly or indirectly” mean, in terms of family relationships? Could a family
relationship, by itself; constitute a direct or indirect interest under the Code
section?

The phrase “interested, directly or indirectly” in subsection 14-14-1202(c)(1) is
not couched in terms of family relationships. As stated by one of my
predecessors: “The statute only speaks of the officer or employee and does not
mention family members.”’ Consequently, it seems that the mere existence of a
family relationship ordinarily would not, standing alone, establish a violation of
A.C.A. § 14-14-1202(c)(1). The existence of a family relationship could,
nevertheless, in some cases undoubtedly be relevant to the factual question
whether an officer or employee is “interested” in a county contract or transaction
and thus in violation of subsection (c)(1).

Question 3 - What relationship does Ark. Code Ann. § 14-14-1202(a)(3) have to
Ark. Code Ann, § 14-14-1202(c)(1)? Does the former provision give guidance as
to the meaning of direct or indirect interests in the latter provision?

It seems clear that these statutory provisions codify certain aspects of the common
law conflict of interest doctrine. The common law prohibition against conflicts of
interests provides generally as follows:

A public office is a public trust .. . and the holder thereof may not
use it directly or indirectly for personal profit, or to further his own
interest, since it is the policy of law to keep an official so far from
temptation as to insure his unselfish devotion to the public interest.
Officers are not permitted to place themselves in a position in which
personal interest may come into conflict with the duty which they
owe to the public, and where a conflict of interest arises, the office
holder is disqualified to act in the particular matter and must
withdraw.*

” Op. Att’y Gen. 88-167.

• 67 CLS. Officers § 204. See also Op. Att’y Gen. 2003-007 (and cases and Attorney General opinions
  cited therein).

Roger A. Norman, Legislative Auditor
Opinion No. 2013-134
Page 5

A familiar application of the doctrine is the rule that prevents public officers from
being interested in public contracts. As the Arkansas Supreme Court has
observed:

. according to the great weight of authority a contract with a
member of a board or public body or in which a member thereof is
interested, is unenforceable, even though there is no statute directly
prohibiting such a contract. A public officer cannot lawfully make a
contract either with himself, or with himself as agent for others.’

The furtherance of the officer’s “personal and individual interest” is the focal point
of inquiry in determining whether an unlawful conflict of interest exists at
common law.’ Moreover, such contracts are invalid “although there may have
been no actual loss or detriment to the public or fraudulent intent in entering into
the contract, since the rule invalidating the contract is based on public policy."

It seems clear that A.C.A. § 14-14-1202(a)(3) and (c)(1), taken together, codify
these common law conflict-of-interest rules (although they appear to go further in
governing the conduct of county employees, in addition to county officers). The
subsections do not otherwise appear to be directly related. Indeed, in some
respects they are clearly unrelated, given that A.C.A. § 14-14-1202(c)(1) prohibits
an officer or employee from being interested in or benefiting from any county
contract or transaction regardless of whether the interest or benefit arises from the
individual’s use of his or her position.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion,
which I hereby approve.

Sincerely,

Attorney General

DM:EAW/cyh

” Warren v. Reed, 231 Ark. 714, 718 331 S.W.2d 847 (1960).
'° Id. at 718 (citation omitted). See also Van Hovenberg v. Holman, 201 Ark. 370, 144 S.W.2d 719 (1940).

"! Warren, 231 Ark. at 717 (quoting 43 Am.Jur. § 294).