Was the Arkansas Lottery Commission exempt from the statewide mileage reimbursement cap before it was abolished in 2015, and could it claw back over-cap amounts it had already paid employees?
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This page answers the general question as of 2015. Ask about yours and see what current Arkansas law means for your facts, with citations you can check.
Plain-English summary
Arkansas Lottery Commission director Bishop Woosley asked whether the Commission was exempt from a state travel regulation and, if not, whether it should seek repayment from employees. The regulation permitted $0.42 per mile for employees using personal cars on state business. After January 15, 2014, the Commission reimbursed employees at $0.56 per mile.
Attorney General Leslie Rutledge concluded the Commission was subject to the regulation. She said the Chief Fiscal Officer's travel rules applied on their face to all state officers and employees except those exempt by law. Although a statute expressly exempted the Commission from certain other laws governing state agencies, the travel-regulation law was not among them. An exemption from some Department of Finance and Administration authority did not imply a travel exemption.
The AG gave two further reasons. Commission members received expense reimbursement under a law for state board and commission members that capped their reimbursement at the state travel-regulation rate. The AG found it unlikely the legislature meant Commission employees, but not members, to escape that limit. Also, a law from which the Commission was expressly exempt and the travel-regulation law both originated in Act 876. The legislature's choice to exempt the Commission from one provision but not the other weighed against an implied exemption.
The AG declined the repayment question. Deciding whether to make a claim would require advice on particular facts, including differences in employees' circumstances and possible defenses. She noted that the Commission was no longer in existence, but did not decide whether anyone should pursue recovery or assign that decision to a successor office.
Currency note
This opinion was issued in 2015 and addresses a commission the AG said no longer existed. Verify current travel rules and the present agency structure before applying its legal analysis. The repayment question was left open.
Common questions
Was the Commission exempt from the $0.42 mileage limit? The AG said no. She found no express exemption in the relevant law or regulations and rejected an exemption inferred from the Commission's exemptions under other laws.
Did the AG order employees to repay the difference? No. She declined to answer whether a claim for repayment should be pursued. That required fact-specific legal advice beyond the ordinary scope of an official opinion.
Who should decide whether to pursue repayment?
This opinion does not answer. It mentions that the Commission had ceased to exist but identifies no successor decision maker and gives no direction on recovery.
Why did the rule for Commission members matter? The AG noted that board and commission members' expense reimbursements were capped at the state employee travel rate. She regarded an interpretation exempting employees but not members as unlikely.
Background and statutory framework
The stored opinion quotes the Chief Fiscal Officer's authority to issue travel and travel-allowance rules for state government officers and employees and the regulation's broad scope. It describes express exemptions for constitutional and elective officials, their employees, and official state guests. It also describes, without reproducing statute numbers, the Commission's separate statutory exemptions and the board-member reimbursement cap.
The AG says Act 876 originated both the travel-regulation law and a provision from which the Commission was expressly exempt. She used that legislative comparison as evidence against implying another exemption. No statute number or year for that act is supplied in the stored opinion text.
Source
Original opinion text
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2015-015
March 26, 2015
Bishop Woosley, Director
Arkansas Lottery Commission
Post Office Box 3238
Little Rock, Arkansas 72203-3238
Dear Mr. Woosley:
You asked my opinion whether the Arkansas Lottery Commission is exempt from a state travel regulation and, if not, whether it should seek the return of money it paid its employees over what the regulation permits.
The regulation provides that state employees may be reimbursed $0.42 a mile for using their own cars for state business travel. After January 15, 2014, the Commission reimbursed its employees $0.56 a mile.
RESPONSE
In my opinion, the Commission was subject to the regulation. I respectfully decline to state an opinion on your second question.
DISCUSSION
A statute requires the state's Chief Fiscal Officer to "promulgate . . . regulations with respect to travel and travel allowances . . . for all officers and employees of the state government. . . ." The law generally exempts constitutional and elective officials, their employees, and official state guests, but does not expressly exempt anyone else.
The CFO's regulations apply on their face to "all officers and employees of state government" except those, mentioned above, who are exempt by law.
It is not clear precisely how the Commission might have been exempt. It is true that a statute exempted the Commission from certain laws, including several that make state agencies subject in certain respects to the authority of the Department of Finance and Administration. But the law relating to travel regulations was not among those; and express Commission exemption from some laws giving DF&A authority over state agencies does not, in my view, imply the Commission was exempt from similar laws notwithstanding the absence of express exemption.
At least two aspects of law suggest that the Commission was indeed subject to the regulation.
First, Commission members were authorized to receive expense reimbursement under a separate law applying generally to members of state boards and commissions. The latter provides that expense reimbursement to state board members "shall not exceed the rate established for state employees by state travel regulations." It seems unlikely that the General Assembly intended only Commission employees, not Commission members, to be exempt from the reimbursement limit.
Second, both a law from which the Commission was expressly exempt and the law providing for travel regulations originated in the same legislative act. That the General Assembly expressly exempted the Commission from one provision of Act 876 but not another suggests it did not intend such an exemption from the other.
There is nothing at all in the travel regulations themselves implying that the CFO intended to exempt the Commission.
I conclude that the Commission was subject to the travel regulation at issue.
The second question you have raised, whether the Commission should seek return of money it paid, requires the giving of legal advice based on particular factual circumstances, and as such falls outside the ordinary scope of an official opinion from this office. Even were the Commission still in existence, deciding whether to make any particular claim may involve factors other than simply the claim's legal validity. Prospective defendants' circumstances will differ, as may their potential defenses. The opinions process is ill-suited to giving advice on such matters. I consequently must respectfully decline to opine on your second question.
Assistant Attorney General J.M. Barker prepared this opinion, which I approve.
Sincerely,
Attorney General
LR/JMB:cyh
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