Can a departing Arkansas constitutional officer sign a multi-year contract that binds the next person to hold that office?

Plain-English summary

State Auditor Andrea Lea asked whether a constitutional officer could enter into a five-year service contract in his last year of office that would bind his successor. The AG declined to give a yes-or-no answer because the question was posed in the abstract and contract validity is fact-dependent.

The AG quoted a legal encyclopedia's general framework. A public officer can make only contracts expressly or impliedly authorized, and people contracting with the officer must take notice of that authority. Contracting power ordinarily lasts only through the officer's term. A contract for “the doing of a particular and specified act” may extend beyond the term if made in good faith and in the public interest. A contract for personal or professional services for the officer cannot force the successor to use the predecessor's chosen provider. The AG said Arkansas law was generally consistent with this framework to the extent the Arkansas Supreme Court had addressed these issues.

The AG added that even a request describing a particular contract would not let her decide its validity: the opinion process does not make her a finder of fact, and she could not be sure she had every relevant fact.

Currency note

This opinion was issued in 2015 and provides general guidance rather than a decision about a particular contract. Check current law and the actual contract terms before relying on its framework.

Background and statutory framework

The quoted framework distinguishes a unitary contract for a particular specified act from a contract for personal or professional services for the employing officer. The first may survive a change in office if it was authorized, made in good faith, and served the public interest. For the second, the quote says the successor must choose the people on whose “honesty, skill, and ability” the successor relies. Its validity thus turns on more than the number of years stated in the contract.

The AG did not assess an actual five-year contract or set a maximum duration. She said each contract's validity generally depends on the facts and circumstances of its execution and performance, including whether entering it was within the officer's express or implied authority.

Common questions

Does a state contract automatically expire when the officer who signed it leaves office?

The opinion does not say every contract expires at that point. It says an authorized, good-faith contract for a particular specified act in the public interest is not void merely because performance extends past the officer's term.

What types of contracts probably survive a change in officer?

The quoted framework identifies a unitary contract for a particular specified act, made in good faith and in the public interest. The opinion supplies no list of approved contract types.

What types of contracts probably do not survive?

The quoted framework says a successor must be allowed to choose providers of personal or professional services for the employing officer. The opinion does not classify the hypothetical vendor contract as one of these.

Did the AG decide whether a five-year vendor contract binds the successor?

No. The five-year contract was a hypothetical example in the question. The AG said the description lacked the facts needed to decide validity.

Why didn't the AG just give a clear answer?

Because the questions were general and did not fully describe a contract or the circumstances of its execution and performance. The AG said she could not establish all relevant facts even if asked about a specific contract.

Source

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

Original opinion text

Opinion No. 2015-048
September 4, 2015
The Honorable Andrea Lea
State Auditor
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
500 Woodlane Street, Suite 230
Little Rock, Arkansas 72201
Dear Auditor Lea:

This is my response to your request for an opinion on the following questions about a constitutional officer's power to contractually bind his or her successor in office:

1. Is there any legal limitation on a constitutional officer's ability to contractually bind his successors? For example, during the last year of his last term, a constitutional officer enters into a five year contract with a service provider or vendor. Is his immediate successor bound by that contract for the full duration of his first term?

2. If his successor is bound by the contract, are there any legal limitations on the length of time a constitutional officer may contract for?

RESPONSE

Your questions are general and do not fully describe any contract or the facts and circumstances of its execution and performance. As briefly set forth below, each such contract's validity generally depends on the prevailing facts and circumstances. As a result, I am unable to give an opinion of universal applicability on the questions. I do, however, briefly set forth governing law in general.

DISCUSSION

A legal encyclopedia describes applicable law in general:

> A public officer can make only such contracts or agreements as are expressly or impliedly authorized. Persons contracting with a public officer must take notice of the extent of his authority.
>
> Ordinarily, the power to make a contract is limited in time to the term of the officer who makes it. Where, however, the extent of an officer's power is not expressly limited, the facts and circumstances of each case must be considered in determining whether the officer may make a contract extending beyond his term.
>
> Where the contract in question is a unitary one for the doing of a particular and specified act, but its performance may extend beyond the term of the officer making it, if it appears that the contract was made in good faith and in the public interest, it is not void because it will not be completed during the term of the officer. On the other hand, if the contract is for the performance of personal or professional services for the employing officer, his successor must be allowed to choose for himself those persons on whose honesty, skill, and ability he must rely so that such a contract, extending beyond the term of the officer making it, is ultra vires.

Arkansas law is generally consistent with the foregoing to the extent the issues have been addressed by the Arkansas Supreme Court.

Unless entering into a particular contract is beyond an officer's express or implied authority, its validity will depend on all the relevant facts and circumstances. I thus cannot give an opinion in response to your general questions. Even were I to receive a request for an opinion that stated relevant facts and circumstances, I still would be unable to render an opinion on that contract. Not being a finder of fact in connection with giving opinions, there could be no assurance that I would be completely informed of all relevant facts and circumstances.

I regret I cannot be of more assistance in this matter. The foregoing should, however, offer some general guidance on the questions you have posed.

Sincerely,
LESLIE RUTLEDGE
Attorney General