Who appoints the Director of the Arkansas Department of Parks and Tourism: the State Parks Commission or the Governor?
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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
The Director of the Arkansas Department of Parks and Tourism asked which of two appointment statutes controlled. One says a commission nominates a director for the Governor to confirm. The other says the Governor appoints the director with the Senate's consent. The Attorney General said a third statute also mattered: it gives the State Parks, Recreation and Travel Commission authority to employ a director with the Governor's approval.
The AG concluded that all three statutes could operate together. In her proposed reading, the Commission nominates one person or sends the Governor a roster. The Governor confirms the nominee or selects a person from the roster. That person becomes the Governor's nominee, whose name goes to the Senate for consent. This gives a role to the Commission, Governor, and Senate without disregarding any of the provisions.
The opinion addresses the hiring process. It quotes provisions saying the director serves at the Governor's pleasure, but it does not separately decide who may terminate a director or analyze repeal of an earlier power.
Currency note
This opinion was issued in 2015. Check current appointment statutes and agency structure before using its proposed process for an appointment.
Background and statutory framework
The opinion identifies three provisions. Ark. Code Ann. § 15-11-205 grants the Commission authority to employ a director with the Governor's approval. Ark. Code Ann. § 25-2-107(a)(2), concerning a type 4 transfer, provides for nomination by the transferred agency's governing body and confirmation by the Governor. Ark. Code Ann. § 25-13-101(b) provides for appointment of the Parks and Tourism director by the Governor with Senate consent.
The AG explained that a type 4 transfer retains the governing body's statutory duties and authority. She said statutes on the same subject should be read together when they can be reconciled, and predicted a court would harmonize these three provisions for the director's hiring. The opinion does not decide a dispute over an actual nomination.
Common questions
Can the Governor appoint a director without the Commission's participation under this opinion?
The AG's proposed process begins with a Commission nominee or roster. The Governor then confirms or selects from what the Commission submitted and sends that person's name to the Senate.
Does the Senate have a role?
Yes. The AG's reading preserves the Senate consent required by the provision specific to the Department of Parks and Tourism.
Does the opinion decide who can fire the director?
No. It addresses how the director is hired. The quoted appointment statutes say the director serves at the Governor's pleasure, but the AG did not analyze a termination dispute.
Why did the AG consider a third statute?
The Commission's separate authority to “employ” a director with the Governor's approval had to be reconciled with the type 4 nomination rule and the department-specific appointment rule.
Source
Original opinion text
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2015-050
July 17, 2015
Richard W. Davies, Executive Director
Arkansas Department of Parks & Tourism
#1 Capitol Mall, Room 4A-900
Little Rock, AR 72201
Dear Mr. Davies:
This is in response to your request for my opinion regarding what appears to be conflicting language in the statutes concerning the appointment process for the Director of the Arkansas Department of Parks and Tourism.
As background for your questions you state:
[Section 7(2) of] Act 38 of 1971, which reorganized state government, transferred, by a type 4 transfer, all functions, powers and duties of the State Parks, Recreation and Travel Commission to the Department of Parks and Tourism.
[Ark. Code Ann.] § 25-2-107(a)(2), concerning type 4 transfers, provides that "The Director of the department, institution, or other agency shall be nominated by the board or commission or governing body of the transferred department, institution, or other agency subject to confirmation by the Governor. The director shall serve at the pleasure of the Governor;" and
[Ark. Code Ann.] § 25-13-101(b) and (c) state that "The executive head of the department shall be the Director of the Department of Parks and Tourism. The Director shall be appointed by the Governor with the consent of the Senate and shall serve at the pleasure of the Governor. The department shall consist of those divisions which constituted the State Parks, Recreation and Travel Commission as of July 1, 1971, and any other divisions which may be created by law and placed under the department."
In light of the foregoing, you ask which statute should be followed — Ark. Code Ann. § 25-2-107, requiring the State Parks, Recreation and Travel Commission to nominate the director of the department subject to approval by the Governor, or Ark. Code Ann. § 25-13-101, which requires the Governor to appoint the director with the consent of the Senate.
RESPONSE
In my opinion, pursuant to established rules of statutory construction, all the relevant statutes regarding the hiring of a director of the Department of Parks and Tourism can be read together in a harmonious way, and none of the statutes at issue need take precedence over the others.
DISCUSSION
In addition to the two statutes you mentioned in your question, we must also consider a third statute: Ark. Code Ann. § 15-11-205 (Repl. 2009), which grants the State Parks, Recreation and Travel Commission ("the Commission") the authority, with the approval of the Governor, to "employ" a director of the Department of Parks and Tourism. In my opinion, a court would read the three statutes harmoniously so that no statute need take precedence over the others.
The General Assembly created the State Parks, Recreation and Travel Commission in 1955 and granted it certain powers. Those powers included the authority to "employ" a director of what is now called the Department of Parks and Tourism, with the approval of the Governor. In 1971, the legislature enacted Act 38, which reorganized the executive department of state government. As part of this reorganization, section 2 of that act established four types of transfers of then-existing state agencies or their duties into other existing or newly created principal departments.
A type 4 transfer, now codified at Ark. Code Ann. § 25-2-107(a), applies to a department or agency that is governed by a board, commission, or other governing body. Under a type 4 transfer, the transferred agency's governing body retains all of the statutory duties and authority it had prior to transfer. In addition, under a type 4 transfer, such governing body nominates its own department director, who must be confirmed by the Governor and who serves at the pleasure of the Governor.
In section 7 of Act 38, however, the General Assembly specifically created the Department of Parks and Tourism. Section 7(2) of the act transferred "the functions, powers and duties" of the State Parks, Recreation and Travel Commission to the new Department of Parks and Tourism by a type 4 transfer. But, section 7(1) of the act, now codified at Ark. Code Ann. § 25-13-101(b), states that the director of the Department of Parks and Tourism is to be appointed by the Governor with the consent of the Senate and serves at the pleasure of the Governor.
Thus, we have an apparent statutory conflict regarding the director's hiring. On the one hand, Ark. Code Ann. § 15-11-205(a) grants the Commission the authority to employ a director, with the Governor's approval; and those powers were retained when the Commission was transferred by a type 4 transfer to the Department of Parks and Tourism. Moreover, Ark. Code Ann. § 25-2-107(a)(2), regarding type 4 transfers in general, states that a governing body of a transferred agency nominates its department director, subject to confirmation by the Governor. On the other hand, Ark. Code Ann. § 25-13-101(b) is specific with respect to the Department of Parks and Tourism. That statute authorizes the Governor to appoint the director, with the consent of the Senate.
Established principles of statutory construction help resolve this apparent conflict. Those principles require that all statutes involving the same subject matter be construed together and made to stand if capable of being reconciled. Applying these precepts to this situation, I believe a court likely would decide that the three statutes are in pari materia and can be read in a harmonious fashion with respect to the hiring of a director for the Department of Parks and Tourism.
In looking at all three statutes, we find a commonality in each — the Governor has a role, either as the final authority in approving or confirming the Commission's employment or nomination of a director, or as the person responsible for appointing a director of the Department of Parks and Tourism, subject to the consent of the Senate. This last scenario, under Ark. Code Ann. § 25-13-101(b), is the only one of the three that eliminates the Commission's role in the selection of a director and gives a role to the Senate.
To achieve a harmonious reading of the three statutes at issue, in my opinion, the Commission may nominate a person to be director or submit a roster of potential candidates to the Governor. The Governor in turn would then either confirm (or not) the Commission's nominee or approve one of the nominees the Commission submitted. This series of events would accomplish to the extent practicable both the Commission's and the Governor's roles under Ark. Code Ann. §§ 15-11-205(a) and 25-2-107(a)(2). This person approved or selected by the Governor would then become the Governor's nominee, whose name would then be sent to the Senate for its consent, thereby fulfilling the requirements of Ark. Code Ann. § 25-13-101(b).
Assistant Attorney General Ray Pierce prepared this opinion, which I hereby approve.
Sincerely,
LESLIE RUTLEDGE
Attorney General
LR/RP:cyh
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