Are Arkansas public school districts that run licensed child care centers exempt from carrying general liability insurance, and can DHS exempt them?

Plain-English summary

Representative Bill Gossage asked AG Dustin McDaniel two questions about A.C.A. § 20-78-227(b), which governs general liability insurance requirements for licensed child care centers in Arkansas:

1. When a public school district operates a licensed child care center, is the district exempt from the general liability insurance requirement?
2. Can the Arkansas Department of Human Services (DHS) administratively exempt public school districts from that requirement?

The AG declined to answer both. The same two questions were the central issue in active litigation in Pulaski County Circuit Court: Fort Smith School District, et al. v. Beebe et al., Case No. 60CV-14-718. AG opinions are an executive-branch function, and the office had a long-standing policy of not commenting on issues that were already before the courts. Resolving the substantive question was the judiciary's job, and an AG opinion entering the field would have risked encroaching on judicial authority.

This is what is sometimes called a "decline-to-opine" or "pending-litigation" disposition. The opinion has no substantive holding. Its value as precedent is limited to documenting the office's restraint policy. For the underlying merits, the eventual ruling in the Fort Smith case (or any later appellate decision) is the authoritative source.

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

Why didn't the Arkansas AG answer the substantive question?
The same issues were actively being litigated in Pulaski County Circuit Court in Fort Smith School District v. Beebe. The AG follows a long-standing executive-branch practice of not opining on matters in pending litigation, to avoid encroaching on the judicial role of deciding contested legal questions.

What is A.C.A. § 20-78-227(b)?
At the time of this opinion, A.C.A. § 20-78-227(b) was the section of the Child Care Facility Licensing Act dealing with general liability insurance coverage required of licensed child care centers. The text of the statute may have been amended since 2014. Check the current code for the present language.

Where can I find out how Fort Smith School District v. Beebe was resolved?
Check the Pulaski County Circuit Court docket for Case No. 60CV-14-718, then trace any appellate history through the Arkansas Court of Appeals and Supreme Court electronic case dockets. A later AG opinion or a published Arkansas appellate opinion citing the case may also summarize the outcome.

Does the AG ever opine on pending litigation?
Rarely. The Arkansas AG's office has consistently declined to opine on questions that are the subject of active litigation. The rationale is constitutional separation of powers: the courts decide contested legal questions, and an AG opinion landing in the middle of the controversy can pressure or prejudge the litigation.

Was this a decision on the merits?
No. The 2014 opinion has no holding on whether school districts are exempt or whether DHS can exempt them. It is a procedural decision to defer to the courts.

Background and statutory framework

A.C.A. § 20-78-227 sits within the Arkansas Child Care Facility Licensing Act (Title 20, Chapter 78, Subchapter 2). The act regulates licensure, inspection, and operating standards for child care facilities, and subsection (b) addresses general liability insurance requirements.

The disputed question in 2014 was whether the statute's insurance requirement applied to a public school district that operated a child care center, given that school districts have their own sovereign immunity defenses and statutory protections. The Fort Smith School District case put that issue squarely before the Pulaski County Circuit Court.

The AG's decline-to-opine practice has been consistent across administrations. The opinion does not formally cite the policy by name, but the substance is the executive branch's deference to "exclusively judicial prerogatives" on matters in active litigation. AG opinions are persuasive authority, not binding precedent, and the office's restraint preserves judicial primacy on contested questions.

Citations

• A.C.A. § 20-78-227(b) (general liability insurance requirement for licensed child care centers)
• Fort Smith School District, et al. v. Beebe et al., Case No. 60CV-14-718 (Pulaski County Circuit Court) (pending litigation on the two questions submitted)

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. 2014-035

June 2, 2014

The Honorable Bill Gossage
State Representative
Post Office Box 221
Ozark, Arkansas 72949-0221

Dear Representative Gossage:

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

1. Pursuant to A.C.A. § 20-78-227(b), where a public school district
   operates a licensed child care center, is the public school district
   exempt from the requirement of general liability insurance
   coverage?

2. Is it permissible for the Arkansas Department of Human Services
   to exempt public school districts from the general liability
   insurance coverage requirement under the above mentioned
   statute?

RESPONSE

I must respectfully decline to answer your questions, which are the subject of
current litigation in the Pulaski County Circuit Court under the style Fort Smith
School District, et al. v. Beebe et al., Case No. 60CV-14-718. The referenced case
involves the precise issues you have raised in your questions. Resolving such
disputes is a task traditionally left to the courts. In order to avoid encroaching
upon exclusively judicial prerogatives, it has long been the policy of this
executive-branch office to avoid rendering opinions on matters that are pending in
the courts.

I regret I could not be of assistance in this matter.

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

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/JHD:cyh