Can Arkansas county election commissioners be paid an hourly or salary rate for election work performed outside public meetings, and can the county recover that cost from the State?

Plain-English summary

Lonoke County Election Commission Chair Charles W. Eick asked the AG how county election commissioners get paid for tasks they do outside of formal public meetings during a primary election. The statutes set a per-meeting rate (at least $25 per public meeting under § 7-4-111(b)), but the law was silent on whether commissioners could be paid hourly or by salary for the work they do between meetings (logistics, ballot prep, walking the precincts, training volunteers, and so on).

AG Leslie Rutledge gave a layered answer:

1. State reimbursement is per-meeting only. The State Board of Election Commissioners (SBEC) administers reimbursement to counties for state-funded elections under § 7-7-201(a). The SBEC's published "Rules for Reimbursement of Expenses for State-Funded Elections" tied reimbursement to commissioner participation in public meetings (between $25 and $100 per meeting, capped at ten meetings per commissioner per state-funded election). Outside-of-meeting work, regardless of how the county pays for it, is not reimbursable from the State.

2. A county can still pay commissioners for outside-meeting work using its own funds. The Arkansas Supreme Court in Union County v. Union County Election Commission, 274 Ark. 286, 623 S.W.2d 827 (1981), described a county election commission as a county agency performing specified functions. The county has no choice about whether to fund elections, but does have discretion (within a reasonableness limit) over the amount it allows for those necessary expenses. The AG read that authority as letting the county pay commissioners hourly or by salary for tasks that:

   • are necessary to the conduct of the election, and
   • are impossible or impracticable to perform within a public meeting.

3. Public-meeting work cannot be re-billed at an hourly rate. The AG drew a line: if a task can be done during a public meeting (where multi-member commissioner conduct is governed by the Open Meetings/FOIA framework of § 7-4-105(b)), it should be done there, and the per-meeting rate applies. The hourly/salary route only covers tasks that genuinely cannot be done in the meeting context.

4. The minimum-wage statute does not raise the floor. Ark. Code Ann. § 7-4-112(a) requires "election officials . . . holding an election" to receive at least the prevailing minimum wage. The AG read this not to apply to county board of election commissioner (CBEC) members. The CBEC appoints the "election officials" who run the polls; the CBEC members themselves are not the people the statute covers.

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.

The SBEC has updated its Rules for Reimbursement multiple times since 2015. The per-meeting cap, the list of qualifying meetings, and the rate range may have changed. Anyone budgeting commissioner pay should check the current SBEC rules and the current text of Ark. Code Ann. tit. 7, ch. 4.

Background and statutory framework

The per-meeting statutory pay rate

Section 7-4-111(b) (Repl. 2011) set the floor: each county board of election commissioners member received "not less than twenty-five dollars ($25.00) per public meeting when official business is conducted." That figure was the per-event compensation for being at and conducting business at an official meeting. It was not an hourly rate, a daily rate, or a salary.

SBEC reimbursement and the cap

Under Ark. Code Ann. § 7-4-101(f)(11) (Supp. 2015), the SBEC administered reimbursement of election expenses to counties for primary elections, statewide special elections, and nonpartisan general elections. Section 7-7-201(a) said the State bore the cost of party primaries through an SBEC appropriation. The SBEC's "Rules for Reimbursement of Expenses for State-Funded Elections" (2015 edition) operationalized that authority:

• Counties were eligible for funding commissioner pay at not less than $25 and not more than $100 per public meeting attended when official business was conducted, up to ten meetings per commissioner per state-funded election (§ 506(E) of the Rules).
• Public meetings included drawing of ballot position, certification of ballots, selection or alteration of precinct or polling-site locations, designation of election officials, correction of ballot errors, canvassing and certification of election results, canvassing and certification of recounts, and election day itself.
• Section 507(D) of the Rules stated that the SBEC "will not compensate a county election commissioner for election-related duties, except as provided by law for public meetings."

The AG agreed that this read was consistent with the statutory text. Neither § 7-4-111(b) nor any other Arkansas statute authorized state reimbursement on any basis other than per-meeting.

Union County and county discretion

The Arkansas Supreme Court's 1981 decision in Union County v. Union County Election Commission set up the county-side framework. Counties do not have discretion over whether to fund elections (which are mandatory expenses). They do have discretion over the amount allowed for those necessary expenses, subject to a reasonableness limitation. The case dealt with voting machine preparation, but its principle extended to other necessary county expenses around elections.

The AG used Union County to support the result that a county is not forbidden from paying its commissioners for tasks performed outside meetings. There is no statute prohibiting that. As long as the county exercise of discretion is reasonable, and the task is genuinely outside what a public meeting can accomplish, the county can pay for it.

Why "impossible or impracticable to perform within a meeting" matters

The AG was careful to note (in footnote 14 of the original opinion) that the opinion should not be read as allowing commissioners to perform or be paid for performing any task outside a public meeting if such task is "practicably susceptible of performance within a meeting." The reason: § 7-4-105(b) treated any meeting of two or more commissioners at which official business is conducted as a public meeting subject to FOIA. Letting commissioners do business outside meetings whenever they liked would gut the open-meetings rule. So the hourly route is a narrow carve-out, not a workaround.

Why CBEC members are not "election officials" for minimum-wage purposes

Section 7-4-112(a) requires "election officials . . . holding an election" to receive the prevailing minimum wage. The general definition of "election official" in § 7-1-101(11) does include CBEC members. But the AG argued that the general definition should not control a statute that uses the term in a more specific context. Section 7-4-107 separately required the CBEC to appoint the precinct-level election officials who actually conduct an election. Read in context, § 7-4-112(a) applied to those appointed officials, not to the commissioners who appoint them.

Common questions

Q: Can a county pay its election commissioners an hourly rate for working at the polling site on election day?
A: Election day itself is a "public meeting" under the SBEC Rules, and per-meeting compensation applies for that day. The hourly route only covers tasks that genuinely cannot be done within the meeting context.

Q: Will the State reimburse the county if it pays its commissioners hourly?
A: No. State reimbursement under § 7-4-111(b) and the SBEC Rules is limited to per-meeting payments, between $25 and $100 per meeting, with a 10-meeting cap per commissioner per state-funded election.

Q: Does the county council/quorum court have to authorize the additional outside-meeting compensation?
A: The compensation comes out of county funds, so the quorum court appropriates the line. The reasonableness constraint from Union County applies.

Q: Are CBEC members entitled to the prevailing minimum wage for hours worked?
A: Under this opinion, no. The minimum-wage statute applies to the precinct-level election officials whom the CBEC appoints, not to the CBEC members themselves.

Q: What kinds of outside-meeting tasks did the AG have in mind?
A: Tasks "necessary to the conduct of the election" that cannot practicably be done as a body meeting. The opinion does not give an exhaustive list, but the implication is logistical preparation, individual on-site work, and other tasks that are inherently single-actor or operational rather than deliberative.

Citations and references

Statutes:

• Ark. Code Ann. § 7-1-101(11) (Supp. 2015), definition of "election official"
• Ark. Code Ann. § 7-4-101(f)(11) (Supp. 2015), SBEC authority over reimbursement
• Ark. Code Ann. § 7-4-102(d) (Repl. 2011), CBEC members as county officials
• Ark. Code Ann. § 7-4-105(b) (Supp. 2015), commissioner meetings subject to FOIA
• Ark. Code Ann. § 7-4-107 (Supp. 2015), CBEC duties
• Ark. Code Ann. § 7-4-111(b) (Repl. 2011), per-meeting compensation
• Ark. Code Ann. § 7-4-112(a) (Repl. 2011), minimum-wage requirement for election officials
• Ark. Code Ann. § 7-7-201(a), (b)(1) (Repl. 2011), primary election cost-bearing

Cases:

• Union County v. Union County Election Commission, 274 Ark. 286, 623 S.W.2d 827 (1981) (Ark. Sup. Ct.)

Administrative rules:

• SBEC Rules for Reimbursement of Expenses for State-Funded Elections (2015 ed.), §§ 506(E), 507(D)

Source

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

Original opinion text

Opinion No. 2016-040
August 25, 2016

The Honorable Charles W. Eick, Chair
Lonoke County Election Commission
171 Country CV
Cabot, AR 72023

Dear Mr. Eick:

You have requested my opinion regarding compensation for county election commissioners for performing election-related tasks during primary elections. As background for your questions, you note that the law provides that commissioners are compensated on a per-meeting basis but does not provide that county election commissioners can be compensated for election-related duties performed outside meetings.

Against this background, you ask:

Can election commissioners be compensated for these tasks on an hourly or salary basis by the county (and the county be reimbursed for these expenses by the state)? Or, are election commissions that choose to fulfill responsibilities themselves, rather than by hiring outsiders, limited to doing such work in the context of a meeting and being compensated only by the per-meeting rate set by the county?

RESPONSE

In my opinion, counties can receive reimbursement from the State of Arkansas for payments disbursed to county election commissioners on a per-public-meeting basis only, in accordance with Ark. Code Ann. § 7-4-111(b) and the Rules for Reimbursement adopted by the State Board of Election Commissioners ("SBEC"). To the extent your question is focused on reimbursement by the State, therefore, I believe it is clear that reimbursement is limited to payments made to counties in reimbursement of county payments to county election commissioners for participating in meetings.

Your question also appears to ask whether a county can pay county election commissioners on an hourly or salary basis for performing various election-related tasks outside a public meeting context, notwithstanding that there will be no reimbursement from the State. In my opinion, the answer to this question is "yes" with respect to commissioners' performance of tasks that are necessary to the conduct of the election and are impossible or impracticable to perform within the context of a public meeting.

DISCUSSION

Pursuant to Ark. Code Ann. § 7-4-111(b), "[e]ach member of the county board of election commissioners shall receive for services the sum of not less than twenty-five dollars ($25.00) per public meeting when official business is conducted."

Counties are eligible to receive reimbursement from the State for this expense up to certain maximums set by the SBEC. The SBEC's authority derives from Ark. Code Ann. § 7-4-101(f)(11) (Supp. 2015), which vests the SBEC with the power to "[a]dminister reimbursement of election expenses to counties in accordance with § 7-7-201(a) for primary elections, statewide special elections, and nonpartisan general elections."

The SBEC has published the "Rules for Reimbursement of Expenses for State-Funded Elections" ("Rules for Reimbursement" or "Rules"), which outline the rules for the reimbursement of funds from the State to the counties for election-related expenses during state-funded elections. Under the Rules, counties are "eligible to receive funding for election commissioners pay of not less than $25 nor more than $100 per public meeting attended when official business is conducted, up to a maximum of ten (10) public meetings per commissioner per state-funded election." The Rules for Reimbursement explicitly state that the SBEC "will not compensate a county election commissioner for election-related duties, except as provided by law for public meetings."

Thus, under the Rules, the State's reimbursement to counties for election commissioners' compensation is limited to the per-meeting pay outlined in section 7-4-111(b). I believe this is consistent with the governing statutes and a proper exercise of the SBEC's authority to administer reimbursement of election expenses. Neither section 7-4-111(b) nor any other statute requires or expressly allows compensation for county election commissioners on any basis other than per meeting.

In response to your particular question, therefore, counties will not receive reimbursement from the State for any compensation paid to election commissioners for tasks performed outside the context of a public meeting. I take your question as also asking, however, whether a county can compensate election commissioners for tasks performed outside of public meetings, notwithstanding the fact that there will be no reimbursement from the State.

In this regard, the Arkansas Supreme Court has held that a county board of election commissioners ("CBEC") is an agency of the county government that performs specified functions imposed by law. The CBEC is specifically charged with conducting political party primary elections. Specified CBEC functions include but are not limited to allocating a sufficient number of ballot boxes, appointing the appropriate number of election officials, and certifying the per diem and mileage of election officials on election days.

Neither quorum courts nor county judges have a choice in determining whether or not money shall be allocated for holding elections. But counties are provided ample discretion with respect to the amount allowed for necessary county expenses, including those pertaining to elections. The only limitation on this amount is that it must be reasonable.

There is no prohibition in law on counties providing reasonable compensation to election commissioners for their performance outside a meeting of tasks that cannot, or cannot practicably, be accomplished within a public meeting. In my opinion, therefore, counties may do so.

I have considered Ark. Code Ann. § 7-4-112(a) (Repl. 2011), which requires that "election officials . . . holding an election" receive the "prevailing minimum wage." In my opinion, this requirement does not apply to members of the CBEC. While the general definition of "election officials" includes CBEC members (Ark. Code Ann. § 7-1-101(11) (Supp. 2015)), this general definition is not controlling for purposes of § 7-4-112(a)'s minimum wage requirement. It is well established that statutes must be read in context. When § 7-4-112(a) is read in light of other statutes which govern the holding of elections, I believe it becomes clear that the members of the CBEC appoint the "election officials" who hold the election, and § 7-4-112(a) therefore cannot apply to CBEC members.

Under Ark. Code Ann. § 7-4-105(b) (Supp. 2015), "[a]ny meeting of two (2) or more commissioners when official business is conducted shall be public and held pursuant to the Freedom of Information Act of 1967, § 25-19-101 et seq."

Nothing in this opinion should be interpreted as suggesting that a commissioner or any combination of commissioners may perform or be paid for performing any task outside a public meeting if such task is practicably susceptible of performance within a meeting.

Sincerely,

LESLIE RUTLEDGE
Attorney General