Can a sitting Arkansas state legislator also serve on a drainage improvement district board of commissioners?

Plain-English summary

State Representative Camille Bennett asked whether a sitting Arkansas legislator could also serve on the Board of Commissioners of the Old River Drainage District, a drainage improvement district established under Act 353 of 1921. Ark. Const. art. 5, § 10 forbids any sitting Senator or Representative from being appointed or elected "to any civil office under this State" during the term for which the legislator was elected.

Attorney General Leslie Rutledge concluded the answer was no. Service on a drainage improvement district board is a "civil office," and an Arkansas drainage improvement district commissioner is serving "under this State." Both prerequisites for the constitutional prohibition were met. The legislator could not accept the board position during his or her current term.

Currency note

This opinion was issued in 2016. 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.

What makes a position a "civil office"

The Arkansas Supreme Court has built up a working definition of "civil office" through a long line of cases starting with Wood v. Miller (1922) (citing the Iowa Supreme Court's classic "a civil office is a grant and possession of the sovereign power"). The Court has not committed to a single rigid test but applies several common factors:

• The position is created by law (often statute or constitution).
• The duty is continuing, not occasional or contractual.
• The tenure, compensation, and duties are fixed by law rather than negotiated.
• The officeholder takes an oath.
• The officeholder may receive a formal commission and/or post a bond.
• The position exercises some portion of sovereign power.

Applying those factors to the drainage commissioner role:

• Created by law. Act 353 of 1921 (now codified at Ark. Code Ann. § 14-121-301 et seq.) creates the position. Section 14-121-303 directs the county court to appoint three property-owner commissioners.
• Statutory duties. Section 14-121-301 specifies the commissioners' duties (assessing benefits and damages from the improvement).
• Continuing duty. Improvement district administration runs as long as the district exists.
• Oath required. Each commissioner takes the constitutional oath of office under Ark. Const. art. 19, § 20.
• Compensation by statute. Commissioners receive $25 per day for board meetings plus necessary expenses.
• Sovereign power. The Arkansas Supreme Court in Quapaw Central Business Improvement District v. Bond-Kinman held that improvement districts are "agents of the state" exercising "limited powers and duties of a public nature by legislative delegation through the taxing power of the state." Drainage commissioners are vested with a portion of the State's taxing power. The Court also flagged that improvement-district assessments, while technically distinct from "taxes" (Rainwater v. Hayes), are still "referable to the sovereign power of taxation."

The combination of these factors satisfies the "civil office" element.

Why a local office is still "under this State"

The AG cited Wood v. Miller for the proposition that "under this State" means "under the laws of this State or by virtue of or in conformity with the authority conferred by the State as sovereign." That definition includes local offices, since they too derive their authority from the State.

The AG cited a string of Arkansas Supreme Court cases applying art. 5, § 10 to a variety of local positions: deputy prosecuting attorney (Martindale v. Honey, 1977); school director (Williams v. Douglas); state pardons and paroles board member (Starnes v. Sadler); county election commissioner (Jones v. Duckett); state sovereignty commission member (Smith v. Faubus); mayor (Collins v. McClendon). She also cited prior AG opinions reaching the same conclusion for various other local offices: county parks and recreation commissioner (2014-064); alderman (2006-078); city attorney (2002-209); and others (2002-073, 2002-039, 97-025, 96-147, 91-314).

The pattern is consistent: when the position involves exercising sovereign power and was created by Arkansas law, it qualifies as a "civil office under this State."

What art. 5, § 10 is designed to prevent

The provision dates to the 1874 Constitution and reflects the framers' concern with self-dealing: a sitting legislator should not be in a position to create offices, set their salaries, or otherwise legislate benefits for himself. The bar is automatic; it does not require a showing that the legislator actually voted on anything related to the office in question.

Common questions

Could the legislator take the position after his or her term ends? The constitutional prohibition runs "during the term for which he shall have been elected." Once that term ends, the bar lifts. A former legislator could accept the drainage board appointment after the end of the legislative term.

What if the legislator resigned from the General Assembly? The text of art. 5, § 10 ties the bar to "the term for which he shall have been elected," which Arkansas courts have generally read to last for the full original term regardless of mid-term resignation. The opinion did not address resignation specifically, but the pattern of the case law suggests resignation may not lift the bar before the end of the elected term.

Does this apply to federal offices too?
No. Art. 5, § 10 reaches only "civil office under this State." A federal office is governed by federal incompatibility doctrines and is a separate analysis.

Could the legislator serve on a private nonprofit board? Probably yes. A purely private organization that does not exercise sovereign power and was not created by Arkansas law would not qualify as a "civil office under this State." But the specific facts would matter.

Source

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

Subject

In light of provisions of Ark. Const. art. 5, section 10, may a member of the General Assembly accept a position on the Board of Commissioners of a drainage improvement district? The specific distric

Source

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

Official summary

In light of provisions of Ark. Const. art. 5, section 10, may a member of the General Assembly accept a position on the Board of Commissioners of a drainage improvement district? The specific district at issue is the Old River Drainage District, which was established under Act 353 of 1921. RESPONSE: "No," in my opinion. I believe service as an appointee to the board of commissioners of the drainage improvement district would constitute holding a "civil office under this State" and would hence be foreclosed to a sitting legislator by Ark. Const. art. 5, section 10. See opinion for analysis.

Original opinion text

Opinion No. 2015-142
January 21, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable Camille Bennett
State Representative
P. 0. Box 414
Lonoke, AR 72086-0414
Dear Representative Bennett:
This is in response to your request for my opinion on the following question: May a member of the General Assembly accept a position on the Board of Commissioners of a drainage improvement district? You have asked this question in light of Article 5, Section 10 of the Arkansas Constitution, which provides: No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State. You state that the specific district at issue is the Old River Drainage District, which was established under Act 353of1921. RESPONSE In my opinion, the answer to your question is "no." I believe service as an appointee to the board of commissioners of the drainage improvement district would constitute holding a "civil office under this State" and would hence be foreclosed to a sitting legislator by Ark. Const. art. 5, § 10. 323 CENTER STREET, SUITE 200 · LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV The Honorable Camille Bennett State Representative Opinion No. 2015-142 Page 2 DISCUSSION "Civil office" Your question and the constitutional provision it implicates 1 require that I address initially whether a position on the drainage improvement district board of commissioners is a "civil office." The Arkansas Supreme Court has stated the following in defining the term "civil office": Early on, we cited with approval a definition of "civil office" offered by the Iowa Supreme Court: "A civil office is a grant and possession of the sovereign power." Wood v. Miller, 154 Ark. at 322-323, 242 S.W. at 575, citing State v. Spauling, 102 Iowa 639, 72 N.W. 288 (1897). Sovereign power is the authority of the State to act. BLACK'S LAW DICTIONARY 1396 (6th ed.1990). Later, we wrote that a civil office is "an office created by civil law within one of the only three branches of government provided for under the present Constitution of this state." Harvey v. Ridgeway, 248 Ark. at 46, 450 S.W.2d at 287.2 In Wood v. Miller, quoted in the above excerpt, the Court also quoted with approval one treatise's statement that "[a]ny officer who holds his appointment under the government * * * is a civil officer."3 The Court has declined to set forth any hard and fast rules with regard to the nature of a "civil office," but it has observed that in any public office the "duty [is] a continuing one, which is defined by rules prescribed by the government and not by contract, which an individual is appointed by government to perform .... "4 The Court has also consistently adhered to the view that an "office" is created by law, with the tenure, compensation, and duties of the position also usually fixed by law.5 Other typical factors signifying a public office include the taking of an oath 1 Ark. Const., art. 5, § I 0. 2 State Board of Workforce Education v. King, 336 Ark. 409, 416, 985 S.W.2d 731, 734 (1999). 3 154 Ark. at 323, 242 S.W. at 575 (quoting Mecham, Public Offices and Officers,§ 24 (1890)). 4 Lucas v. Futral/, 84 Ark. 540, 547, 106 S.W. 667, 669 (1907). 5 E.g., Martindale v. Honey, 259 Ark. 416, 533 S.W.2d 198 (1976); Haynes v. Ria/es, 226 Ark. 370, 290 S.W.2d 7 (1956). The Honorable Camille Bennett State Representative Opinion No. 201S-142 Page 3 of office, the receipt of a formal commission, and the giving of a bond, although the court has consistently maintained that no single factor is ever conclusive. 6 In the time period since Wood and Lucas v. Futral! (note 3, supra), the Court has consistently applied the principles set forth in those cases so as either to prohibit or to allow dual service by General Assembly members.7 In the present case, the position of drainage improvement district commissioner ("Commissioner") was indeed "created by law" under Act 353 of 1921, and the incidents of civil office recited above are included. Act 353 is codified in part at Ark. Code Ann. § 14-121-303, which provides for the appointment of commissioners as follows: 6 Id. (a) When the county court has established any such drainage district, it shall appoint three (3) owners of real property within the county to act as commissioners. (b) Each of these commissioners shall take the oath of office required by Arkansas Constitution, Article 19, § 20, and shall also swear that he will not directly or indirectly be interested in any contract made by the board and that he will well and truly assess all benefits resulting from the improvement and all damages caused thereby.8 7 See Martindale v. Honey, 261 Ark. 708, SS 1 S.W.2d 202 ( 1977) (deputy prosecuting attorney is civil officer within art. S, § 10 prohibition); Williams v. Douglas, 251 Ark. 555, 473 S.W.2d 896 (1971) (school director is civil officer within art. 5, § 10 prohibition); Harvey v. Ridgeway, 248 Ark. 35, 4SO S.W.2d 281 (1970) (delegate to constitutional convention is not civil officer within art. 5, § 10 prohibition because not serving within one of three branches of state government); Starnes v. Sadler, 237 Ark. 325, 372 S.W.2d 585 (1963) (member of state board of pardons and paroles is civil officer within art. 5, § 10 prohibition); Jones v. Duckett, 234 Ark. 990, 356 S.W.2d 5 (1962) (county election commissioner is civil officer within art. 5, § 10 prohibition); Smith v. Faubus, 230 Ark. 831, 327 S.W.2d 562 (1959) (member of state sovereignty commission is civil officer within art. 5, § 10 prohibition); Haynes v. Ria/es, 226 Ark. 370, 290 S.W.2d 7 (1956) (auditor for burial association board is not civil officer within art. 5, § 10 prohibition); Collins v. McClendon, 177 Ark. 44, 5 S.W.2d 734 (1928) (mayor is civil officer within art. 5, § 10 prohibition). 8 Ark. Code Ann.§ 14-121-301 (Rep!. 1998). The Honorable Camille Bennett State Representative Opinion No. 2015-142 Page 4 The position of Commissioner is thus created by law, and the law-not a contract-expressly establishes the Commissioners' duties ("assess all benefits ... and all damages .... "). The duties are continuing, not occasional or intermittent. Other incidents of civil office include the receipt of compensation and expenses9 and the taking of "the oath of office. "10 Perhaps most significantly, as reflected by the following passage in a case involving a municipal improvement district, the position of Commissioner plainly involves the exercise of sovereign power: In determining the status of improvement districts, particularly in Arkansas, a historical review is helpful and is discussed by Horace Sloan in A Treatise on the Law of Improvement Districts in Arkansas (1928). The power of taxation, whether by general taxation or by local assessment, is legislative and cannot be exercised in absence of statutory authority. Additionally, no improvement district may be created or local assessment imposed unless statutorily authorized .... [I]mprovement districts are agents of the state and derive their limited powers and duties of a public nature by legislative delegation through the taxing power of the state .... Further, there is a wealth of case law acknowledging the agency status of improvement districts as governmental in nature. 11 Commissioners of a drainage imgrovement district are thus vested with a portion of the State's power of taxation. 2 In my opinion, the office of Commissioner of 9 Id. at § 14-121-301 (f) ("The commissioners provided for in this subchapter shall receive as compensation the sum of twenty-five dollars ($25.00) each day for attending meetings of the board, together with their necessary expenses."). 10 Id. at§ 14-121-30l(b). 11 Quapaw Cent. Bus. Imp. Dist. v. Bond-Kinman, Inc., 315 Ark. 703, 706, 870 S.W.2d 390, 392 (1994) (emphasis added). 12 It should be noted, however, that improvement district assessments are distinct from "taxes." As explained by the Court in Rainwater v. Hayes, 244 Ark. 1191, 1193-94, 428 S.W.2d 254, 256 (1968):
[S]pecial assessments are not really 'taxes' in the usual and ordinary meaning of the word. While both are referable to the sovereign power of taxation, the words 'taxes' on the one hand and 'assessment', 'special assessments' or 'local assessments' on the other, ordinarily have distinct legal meanings. The word 'taxes' refers to exactions laid by the government for purposes of general The Honorable Camille Bennett State Representative Opinion No. 2015-142 Page 5 the drainage improvement district involves a legislatively sanctioned exercise of state sovereignty and would hence be deemed a "civil office" for purposes of applying the proscription set forth in Ark. Const. art. 5, § 10.13 "Under this State" In my opinion, a Commissioner would further be deemed to hold a position "under this State." The court in Wood offered the following definition of this phrase: The words "under this State," as used in the Constitution, mean under the laws of this State or by virtue of or in conformity with the authority conferred by the State as sovereign. It embraces all offices created by the laws of the State as contradistinguished from other authority. 14 To the extent, then, that the holding of a "civil office" involves the exercise of sovereign authority conferred by the State, a "civil officer" would necessarily appear to be serving "under this State"-a conclusion that would apply to local as revenue. The word 'assessments' refers to exactions laid for making local improvements for the benefit of property owners. 13 This is consistent with the Supreme Court of Mississippi's decision, cited in Wood, that a legislator could not serve as a levee inspector: The Supreme Court of Mississippi, in the case of Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169, held that, under a provision of the Constitution identical with our constitutional provision on that subject [referring to Ark. Const. art. 5, § 1 O], a member of the Legislature could not, during his term, hold the office of levee inspector, and in the opinion said: "It follows, hence, that whether an office has been created by the Constitution itself, or by statute enacted pursuant to its provisions, the incumbent, as a component member of one of the bodies of the magistracy, is vested with a portion of the power of the government, whether the portion of the power of the government which he is thus entitled to exercise is legislative, judicial, or executive in its character." 154 Ark. at 323, 242 S.W. at 575. 14 Id. The Honorable Camille Bennett State Representative Opinion No. 2015-142 Page 6 well as to state civil officers. And indeed, the case law reflects that local offices do constitute civil offices under this State. 15 It is therefore my opinion that Ark. Const. art. 5, § 10 bars a member of the General Assembly from simultaneously serving on the Board of Commissioners of a drainage improvement district. Sincerely,
~ ~· //~k ~-- /"'
LESLIE RUTLEDGE
Attorney General
15 Williams v. Douglas, 251 Ark. 555, 473 S.W.2d 896 (1971) (school director is civil officer within art. 5, § 10 prohibition); Collins v. Mclendon, 177 Ark. 44, 5 S.W.2d 734 (1928) (legislator elected mayor would be subject to challenge under art. 5, § 1 O); Wood, supra, 154 Ark. at 323, 242 S.W. at 575 (state representative barred by art. 5, § IO from serving as a municipal judge, the Court expressly finding that "[m]unicipal offices are created by the statutes of the state and are therefore civil offices 'under this state.'"). Accord Op. Att'y Gen. Nos. 2014-064 (opining that it would be a violation of art. 5, § 10 for a legislator to be appointed during his term to a county parks and recreation commission); 2006-078 (opining that art. 5, § 10 bars a legislator from simultaneously serving as an alderman); 2002-209 (opining that sitting legislator cannot serve simultaneously as a city attorney); 2002-328 (citing Wood and noting: "[m]y predecessors and I have previously concluded that various local offices do constitute civil offices under this State. See Ops. Att'y Gen. Nos. 2002-073 ... ; 2002-039; 97-025; 96-147; 91-314.").