Can an Arkansas county lock itself into a 'forever' contract to house city prisoners for free, with no way out unless the city agrees?

Plain-English summary

The Carroll County Sheriff asked whether agreements involving the county and the cities of Green Forest, Eureka Springs, and Berryville prevented charges for municipal prisoners and other services. The question included earlier verbal arrangements, a 2000 jail-tax ballot title, and written 2004 agreements. The AG answered the legal questions while leaving the status of those particular agreements to local counsel or a court.

• Which agreement controls? The AG declined to interpret the local contracts, ordinances, verbal arrangements, or ballot title. He said a finder of fact acquainted with the surrounding circumstances must resolve their relationship and whether actual tax use matched voter intent.
• Does the sheriff have to sign? No. Although the sheriff controls the jail and its operations, he cannot, except for employment contracts within his department, contract for the county on his own authority. The sheriff's absence as a party therefore does not itself invalidate the written agreements. Their validity depends on other facts the AG did not decide.
• Can a county make a contract that runs indefinitely? Generally yes, subject to Ark. Const. art. 12, § 4's fiscal limit. But the written agreements identified themselves as county interlocal agreements under A.C.A. § 14-14-910. Such agreements must state how a party can withdraw, including six months' written notice. The statute uses “permanent or perpetual relationship” to include agreements lasting more than 12 months or intended to be ongoing; that label does not mean a party is bound forever.
• Can withdrawal require the city's consent? For an agreement governed by § 14-14-910, no. The AG said the mutual-consent termination clauses in the submitted agreements conflicted with the required unilateral withdrawal route on six months' written notice.

The opinion mentions A.C.A. § 25-20-104(h), which allows local governments to cooperate informally without certain formal procedures. The AG expressly left to a finder of fact whether that provision applied here or whether the reported verbal agreements were effective. He said the provision concerns procedure and should not authorize a forever arrangement that conflicts with substantive law.

Currency note

This opinion was issued in 2014. Later law or judicial decisions may have changed the analysis. It also did not decide the validity or meaning of Carroll County's specific agreements. Local counsel should review the agreements and current law before anyone relies on them.

Common questions

Did the AG decide whether the 2004 agreements superseded the verbal arrangements or jail-tax ballot title?
No. He declined to construe the local documents or determine voter intent. The opinion directs those factual and interpretive questions to local counsel or the courts.

Are the written agreements invalid because the sheriff did not sign them?
The sheriff's nonparticipation does not itself make them invalid. The AG distinguished the sheriff's operational control of the jail from the county's authority to agree to financial terms. Other questions about validity remained open.

Can the county withdraw from a county interlocal agreement without the city's approval?
The AG said § 14-14-910 requires each party to be able to withdraw on six months' written notice. A clause requiring both parties' consent to terminate conflicts with that requirement.

Were the reported verbal agreements binding?
The opinion does not decide. It says application of § 25-20-104(h) and the effectiveness of those arrangements require fact finding.

What does “perpetual” mean in the interlocal statute?
For purposes of § 14-14-910, the opinion quotes a definition covering agreements with a duration greater than one year or no fixed duration but an apparent intent to establish a permanent relationship. It still requires a withdrawal method, including six months' written notice.

Background and statutory framework

Ark. Const. art. 12, § 4 prevents a county from committing to spend more than its revenues in a given year. The AG described long or indefinite contracts as generally possible subject to that limit.

A.C.A. § 14-14-910 governs county interlocal agreements. The opinion quotes its definition of a “permanent or perpetual relationship” and its termination provision, which includes six months' written notice by a withdrawing public agency. The written agreements submitted with the request purported to be county interlocal agreements.

A.C.A. § 25-20-104(h) permits informal local-government cooperation without the detailed procedure for formal cooperation. The AG declined to determine how, if at all, it applied to the particular verbal arrangements.

Citations

• Ark. Const. art. 12, § 4 (annual revenue limit discussed by the AG)
• A.C.A. § 14-14-910 (county interlocal agreements)
• A.C.A. § 25-20-104(h) (informal cooperation)
• Op. Att'y Gen. 2008-161 (enclosed with this opinion)

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. 2014-081
October 13, 2014

The Honorable Bryan King
State Senator
871 CR 814
Green Forest, Arkansas 72638

Dear Senator King:

I am writing in response to your request for my opinion on four questions you have submitted on behalf of the Carroll County Sheriff, who seeks guidance regarding whether various agreements among the county and three cities preclude him from charging the cities for law enforcement services such as housing prisoners, police dispatch, "free ACIC" and "the transferring of all telephone calls to police dispatch after normal business hours." The sheriff offers the following with regard to the relative priority of various reported agreements he considers pertinent:

> The quorum court and the cities argue that the cities are entitled to these free services because of the language in the 2000 ballot title and/or the verbal agreement the county judge has made with the city officials in 2000. They choose to ignore the written agreements that were signed in 2004 which only refer to the free housing of prisoners and I strongly question the validity of these agreements . . . .

Against this backdrop, you have posed the following questions:

1. Do the 2004 written agreements between Carroll County and the cities of Green Forest, Eureka Springs and Berryville to exempt those cities from paying fees to the county for supervision and care of city prisoners housed in the county detention center and other purposes, supersede previously made verbal agreements and any interpretation of the 2000 ballot title to levy a one half of one percent sales and use tax in Carroll County to construct, equip and operate the county jail?

2. If the sheriff is not a party to the written agreements, are the written agreements and subsequent ordinance valid?

3. Can the county enter into a forever agreement/contract with the above mentioned cities?

4. Can the county enter into an agreement/contract with a city which can only be terminated if the city agrees?

RESPONSE

I must decline to answer your first question because I am neither authorized nor equipped to construe local ordinances, contracts or ballot titles. Only a finder of fact acquainted with all the surrounding circumstances would be situated to address this question. With respect to your second question, in my opinion, the sheriff's failure to execute or endorse an agreement of the sort at issue would not in itself render the agreement void or deficient. In my opinion, the sheriff's concurrence in such an agreement is not necessary to render it effective. The validity of the referenced agreements will consequently turn not upon the sheriff's agreement thereto, but rather upon factual considerations properly addressed by a court. With respect to your third and fourth questions, a county generally may contract for an indefinite term, i.e., a term that might in theory run "forever." Any county interlocal agreement, however, which is what the written agreements appended to your request purport to be, must permit each of the parties to terminate the contract upon six-months' written notice.

Question 1: Do the 2004 written agreements between Carroll County and the cities of Green Forest, Eureka Springs and Berryville to exempt those cities from paying fees to the county for supervision and care of city prisoners housed in the county detention center and other purposes, supersede previously made verbal agreements and any interpretation of the 2000 ballot title to levy a one half of one percent sales and use tax in Carroll County to construct, equip and operate the county jail?

Although I am statutorily directed to render formal opinions on questions of state law submitted by specified officials, I must respectfully decline to answer this question, which seeks my interpretation of various ordinances and agreements whose interrelationship I am neither equipped nor authorized to assess. As I have noted generally with respect to the construction both of contracts and of ordinances:

> [T]his office cannot serve as a finder of fact and cannot construe either municipal [or county] ordinances or contracts. Accordingly, such questions must be left to the city [or county] attorney or, in the event of litigation, the courts.

I am neither authorized nor equipped to construe and, if possible, to reconcile various local agreements, especially verbal agreements of the sort referenced in your question.

I am further uncertain what you mean in inquiring whether the county's entering into various written agreements might "supersede . . . any interpretation of the 2000 ballot title" to levy the county-jail tax here at issue. I can only note that the interpretation of local ballot titles is not a task I am either charged or situated to perform in a formal opinion. To the extent you are asking whether the actual use of tax revenues accords with the voters' intent, I must respectfully decline to answer, given that the resolution of this factual question clearly lies within the province of the courts.

Question 2: If the sheriff is not a party to the written agreements, are the written agreements and subsequent ordinance valid?

In my opinion, with the exception of contracts of employment within the sheriff's department itself, a sheriff cannot on his own authority contract on behalf of the county. His signature is consequently not required to bind the county to a written agreement. Determining the validity of the referenced "written agreements," then, will depend not upon whether the sheriff was "a party" thereto, but rather upon factual considerations properly considered in the first instance by local counsel and, if necessary, the courts.

A sheriff unquestionably has supervisory control of the county jail pursuant to the following provision of the Code:

> The sheriff of each county in this state shall have the custody, rule, and charge of the jail within his or her county and all prisoners committed in his or her county, and he or she may appoint a jailer for whose conduct he or she shall be responsible.

He is further charged with "managing the populations and operations" of the jail "in compliance with the laws and the Arkansas Constitution and within the requirements of the United States Constitution." In my opinion, however, these grants of control do not authorize or require the sheriff to approve the financial terms of an agreement by the county to provide housing and other services to municipal prisoners.

Specifically with respect to expenses charged for holding municipal prisoners in county, the Code provides as follows:

> (a)(1) In the absence of an agreement on jail costs between a county and all municipalities having law enforcement agencies in the county, the quorum court in a county in this state may by ordinance establish a daily fee to be charged municipalities for keeping prisoners of municipalities in the county jail.

This subsection recites two alternative means whereby a county might charge municipalities for their use of county jail facilities: (1) by agreement between the county and "all municipalities having law enforcement agencies in the county"; and (2) by quorum-court ordinance "establish[ing] a daily fee."

The Code elsewhere elaborates on the first of these alternatives as follows:

> When more than one (1) legal jurisdiction, that is, counties or municipalities, share a common jail, the participating jurisdictions may enter into agreements to share the operational costs of the jail.

You report that the verbal agreements referenced in your request were negotiated on behalf of the county by a former county judge. The agreements attached to your request were apparently likewise authorized by the county judge. The county judge's acting with respect to these matters is unsurprising, given that he or she has the power to contract on behalf of the county, a power consistent with his or her responsibility "for the administration and performing the executive functions necessary for the management and conduct of county affairs, as prescribed by ordinance of the quorum court . . . ." As I have noted in a previous opinion:

> Subject to certain statutory exceptions such as the authority of elected officials to hire their own employees, . . . the power to contract for the county . . . resides exclusively in the county judge. See, e.g., Ark. Ops. Att'y Gen. Nos. 2006-124 (opining that a sheriff could not unilaterally contract with a private company to provide inmate telephone services in the county jail); 97-039 (opining that a sheriff could not unilaterally contract with an individual to collect on hot checks); 93-049 (opining that a sheriff could not unilaterally purchase a vehicle for his official use from county tax collector's commissions).

Specifically in response to your question, then, the fact that the sheriff was not "a party to the written agreements" in no way bears upon the question of which, if any, of the agreements is currently in effect.

Finally, with respect to your question regarding the validity of any local ordinances, I can only echo the following:

> The interpretation of local ordinances is an activity this office has consistently declined to undertake because it necessarily involves determining the intent of the city council, a determination far more readily made by local officials than by myself.

This office has made clear that this proscription applies to county as well as to city ordinances.

Question 3: Can the county enter into a forever agreement/contract with the above mentioned cities?

As a general proposition, nothing prevents a county from entering into a contract with a city that runs for a long or indeterminate term, subject to the restrictions of Ark. Const. art. 12, § 4, which precludes a county from committing to spend more than its revenues in any given year. In my opinion, however, if the contract is a "county interlocal agreement" for the provision of services, as each of the agreements attached to your request purports to be, it will be subject to certain crucial conditions, including a prohibition against any commitment to bind the county in perpetuity.

Although the pertinent statute expressly authorizes "perpetual" interlocal agreements, the statute employs this term as one of art that, counterintuitively, cannot be equated with "forever":

> "Permanent or perpetual relationship" means for purposes of this section any agreement exhibiting an effective duration greater than one (1) year, twelve (12) calendar months, or an agreement exhibiting no fixed duration but where the apparent intent of the agreement is to establish a permanent or perpetual relationship.

What renders this definition eccentric for purposes of your question is that, under its terms, a "relationship" might be "perpetual" without being "forever."

The statute further crucially requires that the agreement specify "[t]he permissible methods to be employed in accomplishing the partial or complete termination of an agreement," including "a requirement of six (6) months written notification of the intent to withdraw by the governing body of the public agency wishing to withdraw[.]" This section as well appears to prohibit a county from entering into a "forever" agreement, at least if you intend the quoted term to describe a contract that would bind the county in perpetuity.

Finally, I should note that the Code authorizes counties to contract informally with other political subdivisions without observing all the formalities required of a county interlocal agreement under A.C.A. § 14-14-910 or the Interlocal Cooperation Act, which authorizes joint ventures between or among "public agencies" such as counties and cities. Specifically, A.C.A. § 25-20-104(h) provides as follows:

> In addition to other specific grants of authority as provided in the Arkansas Constitution and statutes and in addition to the formal cooperation authorized by this chapter, cities, towns, counties, and other units of government are authorized to associate and cooperate with one another on an informal basis without complying with the detailed procedure set out in this section.

Determining the application, if any, of this subsection to the issues raised in your request, including the possible effectiveness of the various referenced verbal agreements, is a task properly undertaken only by a finder of fact. I will note, however, that the focus of this statute is on procedure not substance, meaning that it should not, in my estimation, be read as authorizing a "forever" statute that conflicts with other substantive law.

Question 4: Can the county enter into an agreement/contract with a city which can only be terminated if the city agrees?

I assume that your question refers to the written agreements attached to your request, each of which both identifies itself as a county interlocal agreement under A.C.A. § 14-14-910 and contains a provision requiring the consent of both parties to terminate the contract. In my opinion, any provision requiring joint consent to terminate an agreement is inconsistent with the statute. As discussed in my response to your previous question, the statute requires that a county interlocal agreement expressly provide for a participating jurisdiction to withdraw from the agreement, if it chooses to do so, upon giving six-months' written notice.

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

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/JHD:cyh

Enclosure (Op. Att'y Gen. 2008-161)