Can an Arkansas city police department use a 90-day probationary period for new officers despite the state CLEST regulation requiring 12 months?

Plain-English summary

State Representative Dwight Tosh asked whether a city police department could set a 90-day probationary period for new officers when CLEST Regulation 1003 required at least 12 months. AG Leslie Rutledge said no, in two short steps:

1. CLEST has statewide authority over law enforcement standards. The General Assembly created CLEST under Ark. Code Ann. § 12-9-104 and gave it the power to set "minimum selection and training standards" and to "promulgate rules for the administration" of officer training. Under § 12-9-101, training standards for law enforcement officers were state affairs, not municipal affairs.
2. CLEST Regulation 1003 has the force of state law. A duly promulgated administrative regulation has "the same force and effect as a statute enacted by the legislature," citing Rowell v. Austin, 276 Ark. 445, 637 S.W.2d 531 (1982). Regulation 1003 required that every officer (below department-head level) "satisfactorily complete a probationary period of not less than twelve (12) months with the employing department" before being certified.

Because cities can only act on municipal affairs and cannot conflict with state law (Ark. Const. art. 12, § 4; Ark. Code Ann. §§ 14-42-307, 14-54-101, 14-55-101), a city ordinance or civil service rule shortening the probationary period below 12 months would be invalid.

The AG flagged one direction cities could still go: under Ark. Code Ann. § 12-9-106(d), an employing agency could exceed the state minimums, but it could not undercut them. So a 12-month-plus probation was fine; a 90-day probation was not.

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.

CLEST is now the Arkansas Commission on Law Enforcement Standards and Training, and the structure of its regulations may have been renumbered or revised since 2016. Anyone considering current probationary-period policy should check the current CLEST regulation set and the current text of Ark. Code Ann. tit. 12, ch. 9.

Background and statutory framework

The municipal-affairs vs. state-affairs framework

Ark. Const. art. 12, § 4 lets cities enact provisions concerning "municipal affairs," but only if those provisions do not conflict with state law. Statutory backstops in Ark. Code Ann. §§ 14-42-307, 14-54-101, and 14-55-101 restate the rule that municipal powers and ordinances must not be "contrary," "inconsistent," or otherwise out of step with state general laws. Ark. Code Ann. § 14-43-601 (Repl. 2013) defined "municipal affairs" by reference to government matters affecting the municipality, with explicit exceptions for matters the General Assembly has labeled state affairs.

Law enforcement standards as a state affair

Through Ark. Code Ann. § 12-9-101, the General Assembly declared that the administration of criminal justice and the setting of minimum education and training standards for law enforcement officers are state affairs. That declaration removed the topic from "municipal affairs" entirely. Ark. Code Ann. § 12-9-104 then created CLEST and gave it two key powers:

• to "establish minimum selection and training standards for admission to employment as a law enforcement officer," and
• to "promulgate rules for the administration" of those standards.

Why CLEST Regulation 1003 was binding

The Arkansas Supreme Court has long held that a properly promulgated administrative regulation has the same force as a legislative statute. Rowell v. Austin, citing Marion County Rural School District No. 1 v. Polk, was the AG's primary authority. Regulation 1003 was issued pursuant to CLEST's § 12-9-104 rulemaking power and required, for every officer below department-head rank, satisfactory completion of "a probationary period of not less than twelve (12) months with the employing department" as a precondition to certification.

A 90-day municipal probationary period would put the city in a position where its officers could not be certified by CLEST. Either the city policy would frustrate the certification system, or the city would have to allow officers to keep working past 90 days anyway to reach 12 months. The conflict with the state-law regulation was the disqualifying point.

Where cities still had room

Ark. Code Ann. § 12-9-106(d) explicitly preserved an employing agency's authority to "establish qualifications and standards that exceed the minimums set by state law and regulation." So a city could require 18-month probation, additional training hours, or stricter selection criteria. It just could not go below the floor that CLEST had set.

Common questions

Q: Could a city police department shorten the new-officer probationary period below 12 months?
A: No, not in 2016. CLEST Regulation 1003 set a 12-month floor, and the Arkansas Supreme Court has treated a properly promulgated regulation as having the force of statute. A city ordinance or civil service rule conflicting with that regulation would be invalid.

Q: Could a city civil service commission do it by rule even if the city council could not do it by ordinance?
A: No. The AG addressed both routes. Neither the council nor the commission could override the state-level requirement.

Q: Could a city extend probation past 12 months?
A: Yes. Ark. Code Ann. § 12-9-106(d) allowed employers to exceed the state minimums.

Q: What about officers who were not pursuing CLEST certification?
A: The opinion focused on certified law enforcement officers, since the CLEST regulation is a precondition to certification. The AG read the question as concerning newly hired and not-yet-certified officers within municipal police departments.

Citations and references

Constitutional:

• Ark. Const. art. 12, § 4

Statutes:

• Ark. Code Ann. § 14-42-307, municipal powers consistent with state law
• Ark. Code Ann. § 14-54-101, municipal corporation powers
• Ark. Code Ann. § 14-55-101, ordinance-making power
• Ark. Code Ann. § 14-43-601 (Repl. 2013), definition of "municipal affairs"
• Ark. Code Ann. § 12-9-101 (Repl. 2016), law enforcement standards as state affairs
• Ark. Code Ann. § 12-9-104, creation and powers of CLEST
• Ark. Code Ann. § 12-9-106(d), employer authority to exceed state minimums

Regulation:

• CLEST Regulation 1003, 12-month minimum probationary period

Cases:

• Rowell v. Austin, 276 Ark. 445, 637 S.W.2d 531 (1982) (Ark. Sup. Ct.)
• Marion County Rural School District No. 1 v. Polk, 268 Ark. 354, 596 S.W.2d 700 (1980) (Ark. Sup. Ct.)

Source

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

Original opinion text

Opinion No. 2016-069
August 12, 2016

The Honorable Dwight Tosh
State Representative
4513 Butler Road
Jonesboro, AR 72404-8829

Dear Representative Tosh:

This is in response to your request for an opinion on the following question:

May a police department implement a policy of a 90-day probation period for all new employees in light of Regulation 1003 of the Arkansas Office of Law Enforcement Standards, which requires a probationary period of not less than 12-months?

RESPONSE

I take your question to be asking whether municipal police departments may establish a 90-day probationary period for all newly hired and not-yet-certified law enforcement officers. In this light, the answer to your question is "no," in my opinion. It is my understanding that the Arkansas Commission on Law Enforcement Standards and Training (CLEST) will not certify a law enforcement officer who has not served a full 12-month probationary period. The General Assembly has granted CLEST statewide authority to regulate in this area, and that authority is superior to that of a municipality's.

DISCUSSION

Cities are empowered to enact provisions concerning municipal affairs, provided that they do not conflict with state law. "Municipal affairs" are defined as "all matters and affairs of government germane to, affecting, or concerning the municipality or its government," except certain matters that are state affairs.

The General Assembly has determined that the administration of criminal justice and setting the minimum standards of education and training for law enforcement officers are state affairs. To that end, the legislature created CLEST and granted it the power to "[e]stablish minimum selection and training standards for admission to employment as a law enforcement officer . . ." and to "[p]romulgate rules for the administration" of the officer training and standards statutes.

"[A] proper administrative regulation has the same force and effect as a statute enacted by the legislature and is considered valid." CLEST promulgated Regulation 1003, which requires that every law enforcement officer employed or appointed below the level of a department head "satisfactorily complete a probationary period of not less than twelve (12) months with the employing department" before the officer can be certified. Because of CLEST's statewide jurisdiction over law enforcement training and standards, a city, in my opinion, could not adopt an ordinance (nor could its civil service commission promulgate a rule) that would shorten that probationary period.

Law enforcement employing agencies may, however, establish qualifications and standards that exceed the minimums set by state law and regulation. See Ark. Code Ann. § 12-9-106(d).

Sincerely,

LESLIE RUTLEDGE
Attorney General