Can an Arkansas city council member also serve as the city's volunteer fire chief?

Plain-English summary

State Senator Bryan King asked whether a city council member could simultaneously serve as fire chief for the city's volunteer fire department. The AG could not give a clean yes or no, because the answer turned on a factual question about how the fire chief is compensated.

The framework:

Statutory permission (§ 14-42-115). The statute expressly allows a "volunteer firefighter" to seek election to and serve on the city council or other governing body in any city of the first class, second class, or incorporated town. The service is not deemed a conflict of interest, and a person can simultaneously serve and receive compensation as both a council member and a volunteer firefighter.

Ambiguity about who counts as a "volunteer firefighter." The statute does not define "volunteer firefighter" or "compensation," and there is no obvious meaning of "volunteer" who receives "compensation." The AG turned to the emergency clause of Act 124 of 1981 (the original enactment), which explained that the General Assembly's intent was to cover firefighters who receive "a small amount of pay" only when "called upon to render fire service duties." That implicitly excludes firefighters with regular salaries.

Result of the framework. If the fire chief is unpaid or receives only small per-call payments, § 14-42-115 sanctions dual service. If the fire chief is on a regular salary or otherwise more substantially compensated, the statute does not apply.

Common-law doctrine of incompatibility. The Arkansas Supreme Court has long held that two offices are incompatible if one is subordinate to the other, or if one has supervisory or audit power over the other (Tappan v. Helena Federal Sav. & Loan Ass'n). The fire chief and the city council have exactly that relationship: § 14-53-101 gives city councils the power to establish fire departments, equip them, and govern them. So at common law the two offices are incompatible.

The statute trumps the common law (when it applies). Common-law rules can be abrogated by statute (Southwestern Bell). So when § 14-42-115 applies (because the fire chief is a true volunteer with small per-call pay), it supersedes the incompatibility doctrine. When § 14-42-115 does not apply, the common-law bar reactivates and dual service is forbidden.

Even when dual service is allowed, recusal is sometimes required. If a particular council decision would directly impact the fire department in a way that creates divided loyalties, prudence dictates abstention. The opinion cites prior AG opinions for this principle (2012-018, 2004-249, 2001-042).

Additional bar. If § 14-42-115 does not apply, the AG also believed the dual service would be prohibited by § 14-42-107(a)(2), which generally forbids appointing aldermen to any municipal office during their elected term (and the fire chief is a municipal office). The fire chief role being a "municipal office" follows the position taken in prior AG opinions (2002-023, 2001-296).

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.

Background and statutory framework

Arkansas's general rule against dual office-holding is rooted in two sources:

1. The common-law doctrine of incompatibility, which forbids one person from holding two offices when there is conflict of interest because one is subordinate to the other or one has supervisory or audit power over the other. The classic Arkansas formulation is in Tappan (1937), reaffirmed in Thompson v. Roberts (1998) and Byrd v. State (1966).

2. The statutory bar in § 14-42-107(a)(2), which states that no alderman or council member shall be appointed to any municipal office during the elected term, except as otherwise provided in the municipal code.

Section 14-42-115 is an express exception to both of these for "volunteer firefighters" in cities of the first or second class or incorporated towns. The statute was enacted as Act 124 of 1981. Its emergency clause (which becomes important when the statute is ambiguous) explains:

[I]t is the consensus of the General Assembly that the small amount of pay received by volunteer firemen only when they are called upon to render fire service duties does not constitute a conflict of interest within any statutory or constitutional limitation, and that the immediate passage of this Act is necessary to clarify the authority of volunteer firemen to serve on the governing body of the municipality wherein the firemen serve.

The legislative purpose was specifically to authorize true volunteers (with token per-call compensation) to serve on city councils. The AG, applying Heath v. Westark Poultry Processing (1976), turned to the emergency clause to resolve the ambiguity in "volunteer firefighter."

Section 14-42-115 does not apply to cities with the city administrator form of government (subsection (c)).

The recusal point is well-settled Arkansas law. Even when statutory dual-service is allowed, a council member with divided loyalties on a specific matter must abstain. The AG cited Op. Att'y Gen. 2012-018, 2004-249, and 2001-042 as prior office authority on the recusal requirement.

Common questions

Can the chief of a paid fire department also serve on the city council?

No. A regularly-compensated fire chief is not a "volunteer firefighter" under § 14-42-115. The common-law incompatibility doctrine and § 14-42-107(a)(2) would forbid dual service.

What about a fire chief who gets a small monthly stipend instead of per-call pay?

The opinion's emergency-clause reasoning focused on small pay "only when called upon to render fire service duties." A regular monthly stipend that is not tied to specific duty calls is in the gray zone. The safer reading is that § 14-42-115 contemplates per-call compensation, not stipend-based pay, but the question is fact-specific.

Can a council member who is also fire chief vote on the fire department's budget?

Probably not. The opinion was clear that when a council decision would directly impact the fire department in a way that creates divided loyalties, the council member should recuse. A budget vote is the textbook example.

Does this rule apply to other dual roles, like council member and police chief?

The reasoning would extend. The common-law incompatibility doctrine applies anytime one office has supervisory or audit power over the other. There is no statutory analogue to § 14-42-115 for police chiefs, so a council member could not also serve as paid police chief.

Does this affect smaller towns with all-volunteer departments?

Yes, but the answer is generally "permitted with recusal." All-volunteer departments fit cleanly within § 14-42-115. The AG has long opined that small-town council member/volunteer firefighter combinations are lawful, subject to the recusal requirement.

What changed with Act 476 of 1993?

Act 476 amended § 14-42-115(c) to make it inapplicable to cities with the city administrator form of government after August 13, 1993. Cities with that form of government are governed by their own rules.

Citations

• Ark. Code Ann. § 14-42-115 (Repl. 2013) (volunteer firefighter exception)
• Ark. Code Ann. § 14-42-107(a)(2) (Repl. 2013) (council member appointment bar)
• Ark. Code Ann. § 14-53-101 (Repl. 2013) (city council fire department authority)
• Acts 1981, No. 124, § 3 (emergency clause defining intent)
• Tappan v. Helena Federal Sav. & Loan Ass'n of Helena, 193 Ark. 1023, 104 S.W.2d 458 (1937) (common-law incompatibility)
• Thompson v. Roberts, 333 Ark. 544, 970 S.W.2d 239 (1998)
• Byrd v. State, 240 Ark. 743, 402 S.W.2d 121 (1966)
• Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W.2d 953 (1976) (using emergency clause to resolve ambiguity)
• Southwestern Bell Tel. Co. v. City of Fayetteville, 271 Ark. 630, 609 S.W.2d 914 (1980) (statutes can abrogate common law)
• Op. Att'y Gen. Nos. 2008-184, 2002-023, 95-178 (prior council member/fire chief opinions)
• Op. Att'y Gen. Nos. 2012-018, 2004-249, 2001-042 (recusal requirement)

Source

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

Original opinion text

Opinion No. 2015-074
August 28, 2015
The Honorable Bryan B. King
State Senator
871 County Road 814
Green Forest, AR 72638-2657
Dear Senator King:

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

This is in response to your request for an opinion on the following questions concerning a city council member's simultaneous service as fire chief for the city's volunteer fire department:

1. Can a city council member simultaneously serve in the position of fire chief?
   a. If the answer is "yes," are there any circumstances in which that member would have to recuse himself from city council proceedings or matters?
2. Would the common law doctrine of incompatibility forbid one from serving as both a city council member and the fire chief?
3. Does it matter if the fire chief role is a paid or unpaid position?

RESPONSE

With the exception of Question 1(a), it is my opinion as explained below that the answers to these questions depend upon whether the particular fire chief position at issue is a "volunteer firefighter" position as contemplated by Ark. Code Ann. § 14-42-115. With regard to Question 1(a), the circumstances would be those isolated situations in which decision making might divide the individual's allegiance between the interests at stake. Prudence would dictate abstention in those circumstances.

DISCUSSION

Question 1 - Can a city council member simultaneously serve in the position of fire chief? (a) If the answer is "yes," are there any circumstances in which that member would have to recuse himself from city council proceedings or matters?

The answer to the question whether a city council member can also serve as fire chief is governed by Ark. Code Ann. § 14-42-115, which expressly sanctions a city council member's service as a "volunteer fire fighter":

(a)(1) It is lawful for a volunteer firefighter ... in any city of the first class, city of the second class, or incorporated town in this state to seek election to, and if elected, to serve as a member of the city council or other governing body of the city or town.

(2) This service shall not be deemed a conflict of interest and shall not be prohibited by the civil service regulations of any city or town.

(b) A person may serve and receive compensation as a member of the governing body of any city of the first class, city of the second class, or incorporated town and simultaneously serve as a volunteer firefighter ... and receive compensation as a firefighter ....

The statute does not define "volunteer firefighter" or "compensation," or otherwise explain what is meant by "compensation" in the context of a "volunteer" firefighter. The statute is consequently ambiguous as to its intended application, given that there is no certain manner of compensation accorded to "volunteer" firefighters. When a statute is ambiguous, it is appropriate to consider the emergency clause in order to determine the legislative intent. The emergency clause in this case indicates that the statute is intended to apply to firefighters who receive a "small amount of pay" only when "called upon to render fire service duties":

[I]t is the consensus of the General Assembly that the small amount of pay received by volunteer firemen only when they are called upon to render fire service duties does not constitute a conflict of interest within any statutory or constitutional limitation, and that the immediate passage of this Act is necessary to clarify the authority of volunteer firemen to serve on the governing body of the municipality wherein the firemen serve.

This emergency clause indicates that the question whether § 14-42-115 sanctions one's simultaneous service as city council member and fire chief for the city's volunteer fire department depends upon whether the fire chief is either unpaid or receives "compensation" within the intended meaning of the statute, i.e., a small amount when rendering fire service duties. If the fire chief is either unpaid or receives the small amount of "compensation" within the intended meaning of the statute, then § 14-42-115 sanctions simultaneous service.

I consequently cannot provide a clear "yes" or "no" answer to Question 1 above. I will nevertheless address Question 1(a) regarding a possible need to recuse under some circumstances, in the event § 14-42-115 sanctions the dual service as city council member and fire chief under the particular facts.

The fire chief, in his position as city council member, might occasionally face situations in which he is required to participate in decisions that will directly impact the fire department. If the particular facts of a situation indicate that any decision making might divide his allegiance between the interests that are at stake, then prudence dictates that he abstain from participating in the particular matter based upon the fact or the reasonable perception of his having divided loyalties.

Question 2 - Would the common law doctrine of incompatibility forbid one from serving as both a city council member and the fire chief?

The Supreme Court has defined this doctrine as follows:

"The inconsistency, which at common law makes offices incompatible, ... lies ... in the conflict of interest, as where one is subordinate to the other, and subject in some degree to the supervisory power of its incumbent, or where the incumbent of one office has the power to remove the incumbent of the other or to audit the accounts of the other."

In my opinion, the positions of city council member and fire chief are incompatible because the position of city council member exercises some degree of authority over the fire chief. This authority arises out of Ark. Code Ann. § 14-53-101 (Repl. 2013), which grants city councils the power and duty to establish fire departments, to provide them with equipment, and to promulgate rules and regulations for their governance.

However, simply knowing that the positions of city council member and fire chief are incompatible does not decide the question whether the doctrine forbids one's dual service in these positions. A common-law rule can be abrogated by statute. As explained above, Ark. Code Ann. § 14-42-115 might expressly sanction such dual service, in which case the common law "incompatibility" doctrine would be superseded.

It is therefore my opinion that the answer to Question 2 depends upon whether the particular fire chief position at issue is a volunteer fire fighter within the intended scope of § 14-42-115, discussed above. If that statute applies, then the answer to Question 2 is "no." The common law doctrine of incompatibility would not forbid one from serving as both a city council member and fire chief, as long as the fire chief position is a volunteer fire fighter position under § 14-42-115. If § 14-42-115 does not apply, however, then I believe the doctrine of incompatibility would forbid the dual service.

Question 3 - Does it matter if the fire chief role is a paid or unpaid position?

See response to Question 1 above.

Sincerely,
LESLIE RUTLEDGE
Attorney General

LR:cyh