Can an Arkansas county force employees to resign or take unpaid leave when they file to run for elected office?

Plain-English summary

Senator Eddie Cheatham asked AG Dustin McDaniel about an Ashley County personnel policy that required "any non-elected employee of Ashley County receiving compensation by the use of Ashley County Public Funds" to be removed from active employment by resignation, termination, or unpaid leave from the moment of filing for elective office until either elimination from the race or unopposed determination by the election commission. The county would still credit sick leave and vacation accrual as if the employee remained active. Senator Cheatham wanted to know whether the quorum court had the authority to adopt and enforce such a "resign-to-run" rule.

The AG cut directly to the central question: the policy is unenforceable because the Arkansas legislature has expressly forbidden it. A.C.A. § 21-1-207, enacted in 1997, says: "No employee of the state, a county, a municipality, a school district, or any other political subdivision of this state shall be deprived of his or her right to run as a candidate for an elective office or to express his or her opinion as a citizen on political subjects, unless as necessary to meet the requirements of federal law as pertains to employees."

Three layered points:

1. The 1997 statute creates a statutory right. Public employees retain "current and ongoing paid employment" while running for elective office. Ashley County's policy, which forced employees to give up paid employment as a condition of seeking local office, was at odds with that right.

2. An earlier 1993 AG opinion approving a similar Ashley County policy is superseded. That opinion, issued before the 1997 statute existed, was provisional even then. The 1997 statute resolved any doubt by directly forbidding the policy.

3. The quorum court's "employee policy" authority does not save the rule. A.C.A. § 14-14-805(2) gives counties authority over "employee policy and practices of a general nature," but a resign-to-run rule is different in kind from general vacation, sick leave, nepotism, or hiring policies. Where the general grant of authority conflicts with the specific protection in § 21-1-207, the specific statute controls (Donoho v. Donoho) and the later-enacted statute controls (Daniels v. City of Fort Smith).

Two prior AG opinions, 99-155 and 98-084, had already concluded that the 1997 statute precluded similar restrictions on county and municipal employees. This opinion folds in nicely with that line.

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

Can a public employer ever force a candidate-employee off the payroll while running?
At the time of this opinion, only "as necessary to meet the requirements of federal law as pertains to employees" (for example, the federal Hatch Act's restrictions on certain employees whose positions are federally funded). Otherwise, the protection in A.C.A. § 21-1-207 stood as an absolute bar.

Does the statute apply to school district and city employees too?
Yes. By its terms it covered "the state, a county, a municipality, a school district, or any other political subdivision of this state." All public-sector employers in Arkansas were subject to the same rule.

Does it matter whether the office sought is contested or uncontested?
No. The opinions cited by the AG (99-155, 98-084) recognize that no public employer may preclude active employees from running for elective office "regardless of whether the position is contested."

Could a county still keep an employee from running for a position they could not hold?
The opinion did not address dual-office or incompatible-offices doctrines (a separate body of law). It addressed only whether the act of running could trigger forced resignation or unpaid leave.

Why did the AG decline to address the first two questions?
Senator Cheatham had asked whether the policy infringed on county-office authority and whether it placed an undue burden on the county. The AG declared those moot because the policy was unenforceable on independent statutory grounds, so there was no need to weigh the burden it caused.

Background and statutory framework

A.C.A. § 21-1-207, enacted by Act 124 of 1997, protects public employees' right to run for elective office and to express political opinions as citizens. The statute is narrow in scope, focused on the running itself and on political expression, but absolute within that scope.

The opinion lays out the constitutional structure. Article 5, amendment 55, section 1 of the Arkansas Constitution gives counties the authority, acting through quorum courts, to "exercise local legislative authority not denied by" the Constitution or by law. The Arkansas Constitution is, per Wells v. Purcell, a limitation rather than a grant. The legislature may enact statutes that constrain local government, and counties cannot adopt policies that conflict.

A.C.A. § 14-14-805(2) gives counties broad authority over "employee policy and practices of a general nature," with examples including vacation and sick leave, office hours, nepotism, and hiring policies. The AG read this as authorizing genuinely general policies, not as authorizing policies that effectively block specific protected activities such as running for office.

Citations

• A.C.A. § 21-1-207 (Supp. 2013) (public employee right to run for office)
• Acts 1997, No. 124, § 1 (enacting § 21-1-207)
• Ark. Const. amend. 55, § 1 (county quorum court authority)
• A.C.A. § 14-14-801(a) (Repl. 1998) (county legislative authority)
• A.C.A. § 14-14-805(2) (Supp. 2013) (general employee policy authority)
• Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979) (constitution as limitation of powers)
• Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994) (specific over general)
• Daniels v. City of Fort Smith, 268 Ark. 157, 594 S.W.2d 238 (1980) (later over earlier)
• Op. Att'y Gen. No. 99-155 (county employees seeking office)
• Op. Att'y Gen. No. 98-084 (municipal employees seeking office)
• Op. Att'y Gen. No. 93-423 (pre-1997 Ashley County policy)

Source

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

Original opinion text

STATE OF ARKANSAS

Tuer ATTORNEY GENERAL
Dustin McCDANIEL

Opinion No. 2013-142

February 26, 2014

The Honorable Eddie Cheatham
State Senator

2814 Ashley 239

Crossett, Arkansas 71635-8824

Dear Senator Cheatham:

I am writing in response to your request for my opinion on the following
questions:

1. Does a county personnel policy requiring employees to vacate
   their positions after filing for elective office infringe upon the
   county office and/or an elected official's authority in providing
   services to the public with properly trained, experienced
   employees?

2. Does this [policy] place an undue burden on the county office
   serviced by the person required to vacate their position?

3. Does the quorum court have the authority to make and enforce
   such a policy? If so, does it go beyond a general employee
   policy?

You report that your questions relate to the following personnel policy apparently
in effect in Ashley County:

Seeking Public Office: Any non-elected employee of Ashley
County receiving compensation by the use of Ashley County Public
Funds must comply with the following guidelines:

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 Eddie Cheatham
State Senator

Opinion No. 2013-142

Page 2

When seeking a publicly elected office of Ashley county
Government employees must be removed from active
employment of Ashley County by resignation, termination,
or approved leave without pay, for the time beginning at
such time the employee pays a filing fee or files petitions
with the election commission until it is determined by the
Ashley County Election Commission that said employee has
been eliminated from an election or said candidate
(employee) has no further opposition to election to the office
or position that was filed for. Any non-elected employee
seeking public office will be considered as continuously
active with Ashley County Government as it might relate to
sick leave and/or vacation time.

RESPONSE

I need not address your first two questions, which are moot in light of my answer
to your third question. In my opinion, the answer to the first part of your third
question is “no.” Given this conclusion, I will focus only on supporting my
conclusion that a county lacks authority to adopt or enforce a policy of the sort set
forth immediately above.

Resolving your question turns on the application of the following statute:

No employee of the state, a county, a municipality, a school district,
or any other political subdivision of this state shall be deprived of his
or her right to run as a candidate for an elective office or to express
his or her opinion as a citizen on political subjects, unless as
necessary to meet the requirements of federal law as pertains to
employees. |

This statute creates a “right” in any public “employee” — a term that, in my
estimation, denotes current and ongoing paid employment — to “run as a candidate
for an elective office.” In my opinion, a local policy requiring a public employee
to give up his paid employment as a condition of seeking local office, which is
what the Ashley County personnel policy set forth above purports to do, is
inconsistent with this statute.

' A.C.A. § 21-1-207 (Supp. 2013).

The Honorable Eddie Cheatham
State Senator

Opinion No. 2013-142

Page 3

Some preliminary historical review may serve as backdrop to the analysis below.
The statute just quoted was enacted in 1997.2 One of my predecessors, in an
opinion issued in 1993,° addressed the enforceability at that time of an Ashley
County personnel policy very similar to the one set forth in the factual recitation
above.’ At a time when no legislation existed barring a county restriction of this
sort, my predecessor, after acknowledging that the issue was ultimately one for
judicial determination, opined that “a persuasive argument can be made... in
favor of the enforceability of this particular policy.”’ Your question requires a
determination whether this provisional endorsement of the personnel policy
continues to apply in the face of since enacted legislation that expressly ensures
the right of any public employee to run for public office.

This statutory guarantee is, in my opinion, flatly at odds with the Ashley County
personnel policy requiring that any such candidate be first “removed from active
employment by Ashley County.” I believe a reviewing court would conclude that
the policy cannot stand in the face of the 1997 legislation.

At issue is whether the legislature has the authority to pass a law that forbids a
county from restricting employment in a manner that, prior to enactment of the
state law, may well have been permissible.° In my opinion, it does. It is well

• Acts 1997, No. 124, § 1. This statute has never been amended and appears in the 2013 Supplement only
  to reflect a corrective change in the section heading.

Op. Att’y Gen. No, 93-423.
‘ The policy under review provided as follows:

When seeking a publicly elected office of Ashley County Government, employee must be
removed from active employment by Ashley County by, i.e.: resignation, termination, or
approved leave of absence without pay; for the time frame beginning with a public
announcement such as a notice by a news media or the registration for candidacy with the
County Clerk, whichever comes first, until it is determined by the Ashley County
Election Commission that said employee has been eliminated from election, or said
candidate (employee) has no further opposition to election to the office or position that
was filed for.

° | need not here reproduce the bases for my predecessor’s opinion, since they do no bear on my analysis.
° Again, in this regard, my predecessor’s 1993 opinion supports only the conclusion that before the 1997

legislation took effect, no law appeared to preclude enforcement of the Ashley County policy.
Understandably, given the absence of legislation then addressing the issue, my predecessor opined only that

The Honorable Eddie Cheatham
State Senator

Opinion No, 2013-142

Page 4

settled that the Arkansas Constitution is not a grant, but rather a limitation, of
powers, meaning that the legislature may rightfully enact legislation subject only
to restrictions and limitations imposed by the Arkansas and United States
Constitutions.’ To be sure, by constitutional mandate, a county “acting through its
Quorum Court may exercise local legislative authority not denied by’ the
Constitution or by law.” This county authority, however, is by its very terms
subject to state legislative restriction. In the present case, it is precisely “by law,”
in the form of the statute set forth above, that the county is precluded from
pursuing a personnel policy of the sort set forth above.”

Unsurprisingly, previous opinions issued by this office have likewise concluded
that the statute quoted above precludes any personnel policy of the sort at issue in
Ashley County. For instance, in 1999, one of my predecessors addressed the
question: ‘What legal restrictions may a county employer place upon employees
seeking office.”'® Although declining to itemize what might pass muster as
permissible restrictions, my predecessor opined generally that “any restrictions
placed upon employees seeking office may not be inconsistent with or contrary to

a county policy of the sort in effect in Ashley County might well withstand a constitutional objection. My
predecessor was not asked whether the legislature could nevertheless do what it in fact did in 1997 —
namely, forbid any such local policy in the exercise of its state legislative authority.

7 Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979).

8 Ark. Const. amend. 55, § 1 (emphasis added). See also A.C.A. § 14-14-801(a) (Repl. 1998)
(acknowledging the county’s constitutional power to “exercise local legislative authority not expressly
prohibited by the Arkansas Constitution or by law for the affairs of the county”).

° With respect to the second part of your question, I will merely add in passing that, in my opinion, the
preclusive effect of this statute upon the Ashley County personnel policy is not mitigated by the General
Assembly’s broad legislative grant of authority to counties over “employee policy and practices of a
general nature.” A.C.A. § 14-14-805(2) (Supp. 2013). By way of illustration of such general policies, the
statute recites “establishment of general vacation and sick leave policies, general office hour policies,
general policies with reference to nepotism, or general policies to be applicable in the hiring of county
employees.” A policy effectively foreclosing county employment while running in a contested county
election strikes me as different in kind from such general policies applicable to active and prospective
employees. Moreover, in the event the two statutes are deemed to conflict, A.C.A. § 21-1-207 should be
given effect over A.C.A. § 14-14-805(2) both (1) because it is more specific with respect to the issue of
public employment by a candidate for office, see Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994)
(a general statute normally does not apply where there is a specific statute governing a particular subject
matter); and (2) because it was enacted later in time, see Daniels v. City of Fort Smith, 268 Ark. 157, 594
S.W,2d 238 (1980) (ordinarily, the provisions of an act adopted later in time will be given effect over the
conflicting provisions of an earlier act).

'° Op. Att’y Gen. No. 99-155.

The Honorable Eddie Cheatham
State Senator

Opinion No. 2013-142

Page 5

state law.” He further unequivocally invoked the above statute as “clearly
permit[ting] a county employee . . . ‘to run as a candidate for an elective office.’”
Similarly, in 1998, another of my predecessors concluded that the statute was
“clearly intended to permit a municipal employee ‘to run as a candidate for an
elective office.’”'' Implicit in both opinions is recognition that no public
employer may preclude any of its active employees from running for elective
office, including any county office, regardless of whether the position is contested.
This is precisely what the Ashley County personnel policy purports to do.
Accordingly, in my opinion, the policy is unenforceable.

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I
hereby approve.

Sincerely,

eDANIEL
Attorney General

DM/JHD:cyh

'' Op. Att’y Gen. No. 98-084,