Who appoints the Director of the Arkansas Department of Parks and Tourism: the State Parks Commission or the Governor?

Plain-English summary

The Executive Director of the Department of Parks and Tourism asked the AG to resolve what looked like a conflict among three statutes about who appoints the department's director:

• Ark. Code Ann. § 15-11-205(a) (1955 origin) gave the State Parks, Recreation and Travel Commission authority to "employ" the director with the Governor's approval.
• Ark. Code Ann. § 25-2-107(a)(2) (a 1971 reorganization provision governing "type 4" transfers) said the transferred agency's governing body nominates its director, subject to confirmation by the Governor, and the director serves at the Governor's pleasure.
• Ark. Code Ann. § 25-13-101(b) (also from the 1971 reorganization) was the specific provision creating the Department of Parks and Tourism, and it said the Governor appoints the director with the consent of the Senate, with the director serving at the Governor's pleasure.

The AG declined to pick one over the others. Applying the in pari materia canon (statutes on the same subject must be read together and harmonized when possible, citing City of Fort Smith v. Tate), the opinion suggested a reading that gave each statute work to do: the Commission nominates a person (or submits a list of candidates) to the Governor; the Governor either confirms the nominee or selects from the list; the Governor's chosen person then becomes the Governor's nominee, whose name is sent to the Senate for consent.

The opinion treated the words "approve" and "confirm" as synonymous, and the words "employ" and "nominate" as materially the same in context, because none of those acts becomes final without the Governor's later step. The opinion did flag one potential conflict it did not fully resolve: section 15-11-205(a)'s use of "employ" arguably implies authority to terminate the director, while the 1971 statutes expressly say the director serves at the pleasure of the Governor. The opinion concluded, citing Daniels v. City of Fort Smith, that a court would likely treat any implied termination power in the older statute as repealed by implication by the more specific 1971 provisions.

Currency note

This opinion was issued in 2015. 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 was there a conflict in the first place?

Because three statutes from different eras described the same appointment differently. In 1955 the Parks Commission was given authority to employ a director with the Governor's approval. In 1971 the legislature reorganized state government and gave the Governor a stronger role, including Senate consent in the specific section creating the new Department of Parks and Tourism. The 1955 and 1971 provisions were left on the books together. The 1971 reorganization act used a different mechanism (type 4 transfer of the Commission's functions to the new department) for many other agencies, and that mechanism in § 25-2-107(a)(2) added its own twist about governing-body nomination.

How did the AG read them together?

By giving each statute a role in one chain of events: (1) the Commission nominates someone to the Governor (or sends a list), (2) the Governor confirms or selects, (3) the Governor's nominee goes to the Senate for consent. That reading lets the Commission play the role the 1955 act assigned, lets the type 4 transfer rule operate as a general matter, and satisfies the specific Senate-consent requirement for Parks and Tourism in § 25-13-101(b).

Who can fire the director?

Both 1971 statutes say the director serves at the pleasure of the Governor, so the Governor can terminate at will. The 1955 statute says the Commission "shall employ" the director, which arguably implies a Commission firing power. The opinion thought a court would treat that implied power, if it existed, as repealed by implication by the later, more specific 1971 statutes, citing Daniels v. City of Fort Smith.

What is a type 4 transfer?

Under Acts 1971, No. 38, § 2, the legislature defined four kinds of transfers of pre-existing state agencies into the new principal departments. A type 4 transfer (codified at Ark. Code Ann. § 25-2-107(a)) covered agencies governed by a board, commission, or other governing body. The governing body retained its statutory duties and powers, but the new department had a director nominated by the governing body and confirmed by the Governor.

Why did Parks and Tourism end up with an additional Senate-consent step?

Because § 7(1) of Act 38 of 1971 (codified at § 25-13-101(b)) specifically created the Department of Parks and Tourism and added the Senate-consent layer. The AG read the specific Parks-and-Tourism provision as adding to, not replacing, the general type 4 mechanism.

Background and statutory framework

The Parks Commission was created in 1955 by Acts 1955, No. 330 (codified at Ark. Code Ann. § 15-11-201 et seq.). It had statutory authority to employ a director with the Governor's approval under § 15-11-205(a).

Acts 1971, No. 38 reorganized the executive branch of state government and created the Department of Parks and Tourism. Section 2 of that act established four transfer types, codified at §§ 25-2-104 through -107. Section 7 specifically created Parks and Tourism. Section 7(1), codified at § 25-13-101(b), provided that the director "shall be appointed by the Governor with the consent of the Senate and shall serve at the pleasure of the Governor." Section 7(2) transferred the Commission's functions, powers, and duties to the new department by a type 4 transfer.

The opinion applied the in pari materia canon from City of Fort Smith v. Tate to harmonize the three statutes. It cited 82 C.J.S. Statutes § 477 (2015) for the principle that statutes in pari materia must be read together even if enacted at different times, even if they don't cross-reference, and even if they sit in different chapters of the code. The repeal-by-implication discussion drew on Daniels v. City of Fort Smith.

The opinion's secondary observation about the synonymy of "approve" and "confirm" cited Black's Law Dictionary (10th ed., West 2014).

Citations

• Ark. Code Ann. § 15-11-201 et seq. (Repl. 2009 and Supp. 2013)
• Ark. Code Ann. § 15-11-205(a) (Repl. 2009)
• Ark. Code Ann. §§ 25-2-104 through -107 (Repl. 2014)
• Ark. Code Ann. § 25-2-107(a) (Repl. 2014)
• Ark. Code Ann. § 25-2-107(a)(2)
• Ark. Code Ann. § 25-13-101(b) (Repl. 2014)
• Ark. Code Ann. § 25-13-101(c)
• Acts 1955, No. 330
• Acts 1971, No. 38, §§ 2 and 7
• City of Fort Smith v. Tate, 311 Ark. 405, 410, 844 S.W.2d 356, 359 (1993)
• Daniels v. City of Fort Smith, 268 Ark. 157, 164, 594 S.W.2d 238, 242 (1980)

Source

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

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