Can the Arkansas legislature require its committee to pre-approve Ethics Commission rules implementing the new ethics amendment?

Plain-English summary

Arkansas voters adopted two reform amendments at the November 2014 election. Amendment 92 let the General Assembly subject any agency's administrative rules to legislative committee review and approval before they took effect. Amendment 94 (the "Ethics, Transparency, and Financial Reform Amendment") added contribution limits, lobbyist gift restrictions, and lobbyist registration rules to Article 19 of the state constitution, and directed the General Assembly to put those subjects under Ethics Commission jurisdiction.

Representative Warwick Sabin asked whether Amendment 92's general legislative review power reached rules the Ethics Commission would write under Amendment 94. AG Dustin McDaniel answered yes.

The reasoning had two strands. First, Amendment 94 itself authorized the General Assembly to amend the jurisdictional subsection (subsection (d) in each of the three new ethics sections) by a simple majority vote. That is the same majority Amendment 92 requires for legislative review of rules. So a statute attaching a committee-approval condition to Ethics Commission rules is a permissible exercise of that jurisdictional-amendment power. Second, simultaneously adopted constitutional provisions must be read together, in harmony. Reading Amendment 92 to exclude Ethics Commission rulemaking would carve out an unwritten exception. The opinion declined to read one in.

Worth noting: Amendment 94 imposed a higher bar (supermajority, germaneness, and consistency-with-policy) for amending the substantive ethics rules themselves. The legislature's leverage over Ethics Commission rulemaking under this opinion is procedural, not a license to gut the underlying ethical strictures.

Currency note

This opinion was issued in 2015. 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

What did Amendment 92 do?
It added Article 5, Section 42 to the Arkansas Constitution, letting the General Assembly require legislative committee review of any state agency's rules, and letting it condition rule effectiveness on committee approval.

What did Amendment 94 do?
It added three sections (Art. 19, §§ 28-30) imposing campaign-contribution limits, restricting gifts from lobbyists, and tightening lobbyist registration. It also directed the General Assembly to put those subjects under the Ethics Commission's jurisdiction and gave the Commission rulemaking, advisory-opinion, and complaint-investigation authority.

Why did the question arise?
Because Amendment 94 expressly told the General Assembly to empower the Ethics Commission to write rules. A reader could argue that the express assignment of rulemaking authority implied the rules should not be subject to legislative pre-approval. The AG rejected that reading.

Does the legislature have unlimited power to block Ethics Commission rules?
Not exactly. The General Assembly can attach the Amendment 92 pre-approval mechanism by majority vote because subsection (d) of each ethics section (the jurisdictional subsection) is amendable by majority vote. But the substantive ethical rules themselves can only be modified by supermajority, and any modification must be "germane to" the section and "consistent with its policy and purposes." So the legislature can interfere procedurally with rule rollout, but cannot easily rewrite the ethics rules through that lever.

Did this opinion address a particular bill?
The opinion was advisory and did not opine on any specific legislation. It answered the abstract constitutional question.

Background and statutory framework

Amendments 92 and 94 were both proposed by the General Assembly during the 2013 regular session and ratified by the voters in November 2014.

Amendment 92 added Article 5, Section 42, giving the legislature an option to subject administrative rules to committee review or approval. This represented a partial qualification of the strict separation-of-powers principles in Article 4, sections 1 and 2.

Amendment 94's three new ethics sections each had two relevant subsections. Subsection (d) directed the legislature to place the section under Ethics Commission jurisdiction, including the powers to promulgate rules, issue advisory opinions, and investigate complaints. Subsection (e) split amendment authority: subsection (d) (the jurisdictional piece) was amendable by majority vote, while the substantive provisions (subsection (a)-(c) of each section) could only be amended by supermajority, germanely, and consistent with the section's policy.

The opinion relied on standard canons of construction: constitutional amendments are read together as a whole, simultaneously adopted laws should be reconciled if at all possible, and repeal by implication is disfavored. Allowing the Amendment 92 review mechanism to reach Ethics Commission rules harmonizes both amendments without reading any unwritten exception into either.

Citations

• Ark. Const. amend. 92 (legislative review of administrative rules; adopted as Art. 5, § 42)
• Ark. Const. amend. 94, § 2 (adding Art. 19, §§ 28-30)
• Ark. Const. art. 19, §§ 28(d), 29(c), 30(c) (Ethics Commission jurisdiction; amendable by majority)
• Ark. Const. art. 19, §§ 28(e), 29(d), 30(d) (substantive ethics amendments; supermajority required)
• Ark. Const. art. 5, § 1 (initiated-law amendment requirement, two-thirds majority)
• Op. Att'y Gen. 2014-134 (companion opinion on Amendment 94 term-limit interpretation)

Source

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

Official summary

Given that Amendment 94 expressly directs the General Assembly to empower the Arkansas Ethics Commission to promulgate rules necessary to implement and administer Sections 28, 29, and 30 of Article 19 of the Arkansas Constitution, may the General Assembly provide by law that a Commission rule promulgated under that grant of authority requires the review and approval of a legislative committee so charged by law under Amendment 92?

RESPONSE: Yes. Amend. 94 gives the General Assembly the power to amend, by majority vote, the provisions relating to the Ethics Commission. Amend. 94 therefore authorizes the legislature to do by majority vote precisely what the people have authorized in adopting Amend. 92, namely, to condition the issuance of Ethics Commission regulations upon first obtaining legislative approval.

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
Dustin McDaniel

Opinion No. 2014-140

January 12, 2015

The Honorable Warwick Sabin
State Representative
Post Office Box 250508
Little Rock, Arkansas 72225-0508

Dear Mr. Sabin:

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

Given that Amendment 94 expressly directs the General Assembly to empower the Arkansas Ethics Commission to promulgate rules necessary to implement and administer Sections 28, 29, and 30 of Article 19 of the Arkansas Constitution, may the General Assembly provide by law that a commission rule promulgated under that grant of authority requires the review and approval of a legislative committee so charged by law under Amendment 92?

RESPONSE

In my opinion, the answer to your question is "yes."

Amendment 92 adds to Article 5 of the Arkansas Constitution a new section, which provides in pertinent part:

(a) The General Assembly may provide by law:

(1) For the review by a legislative committee of administrative rules promulgated by a state agency before the administrative rules become effective; and

(2) That administrative rules promulgated by a state agency shall not become effective until reviewed and approved by the legislative committee charged by law with the review of administrative rules under subdivision (a)(1) of this section.

This section arguably qualifies the separation-of-powers doctrine set forth elsewhere in the constitution by conditioning upon legislative approval, if the General Assembly so chooses, the executive branch's adoption of administrative rules.

At issue is whether this right of approval extends to rules and regulations adopted by the Arkansas Ethics Commission in pursuit of its charge under Amendment 94, § 2, which added to Arkansas Constitution Article 19 the three ethics sections, numbered 28, 29 and 30, referenced in your statement of background facts. Specifically, you note that each of these sections "requires the General Assembly to provide by law for the respective section to be 'under the jurisdiction of the Arkansas Ethics Commission.'"

Each of the sections just referenced contains the following pertinent provisions:

(d)(2) [T]he General Assembly shall provide by law for this section to be under the jurisdiction of the Arkansas Ethics Commission, including without limitation authorization of the following actions by the Arkansas Ethics Commission:

(A) Promulgating reasonable rules to implement and administer this section as necessary;

(B) Issuing advisory opinions and guidelines on the requirements of this section; and

(C) Investigating complaints of alleged violations of this section and rendering findings and disciplinary action for such complaints.

Each section further contains the following provision empowering the General Assembly to alter the amendment's terms:

(e)(1) Except as provided in subdivision (e)(2) of this section, the General Assembly, in the same manner as required for amendment of laws initiated by the people, may amend this section so long as such amendments are germane to this section and consistent with its policy and purposes.

(e)(2) The General Assembly may amend subsection (d) of this section by a majority vote of each house.

These provisions of Amendment 94 are noteworthy not only in that they permit the General Assembly potentially to modify the Ethics Commission's enforcement authority, but further in that they allow the legislature to do so by mere majority vote. By comparison, the amendment empowers the General Assembly to modify each section's substantive ethical strictures only by supermajority vote, subject to the condition that any such modification be "germane" to the section and "consistent with its policy and purposes." Amendment 94 thus renders it relatively difficult for the General Assembly to modify the voter-approved ethical constraints but relatively simple for it to modify the provisions whereby those constraints will be enforced, including the provision assigning jurisdiction to the Ethics Commission.

Nothing in Amendment 94 strikes me as inconsistent with the proposition that the General Assembly might exercise oversight over the Ethics Commission in its administration and implementation of the measure's ethical strictures. Indeed, in according the General Assembly the power to amend the provisions relating to the Ethics Commission, Amendment 94 authorizes the legislature to do by majority vote precisely what the people have authorized in adopting Amendment 92, namely, to condition the issuance of Ethics Commission regulations upon first obtaining legislative approval. It thus defies logic, in my estimation, to suggest that the General Assembly's new grant of authority under Amendment 92 to approve administrative rules and regulations does not extend to rulemaking under Amendment 94.

I find no basis, in short, for any implied suggestion that the people, in adopting Amendment 94, intended to invest the Ethics Commission with what they deemed a necessary autonomy in the adoption of rules and regulations. On the contrary, as reflected in the texts of both Amendments 94 and 92, the people, whether wisely or not, have invested the General Assembly with significant potential control over the Ethics Commission's rulemaking authority. Should it elect to exercise such control in this instance, the General Assembly of course will remain constrained by an obligation disinterestedly to promote implementation of the Amendment 94 ethical strictures. As noted above, however, the General Assembly remains free to amend the substance of those strictures by supermajority vote.

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

DUSTIN McDANIEL
Attorney General

DM/JHD:cyh