Can an Arkansas school district put separate millage components on the ballot for separate up-or-down votes?

Plain-English summary

Senator Jake Files asked whether an Arkansas school district could split its proposed millage onto separate ballot lines, letting voters approve or reject the maintenance and operation portion separately from the debt-service or new-construction portion. He flagged a 1995 AG opinion that had cautiously suggested separate ballots were probably permissible. He also noted that the underlying statute (§ 6-14-114) had been amended since.

Attorney General Leslie Rutledge said no. She reasoned from the constitutional text in Article 14, Section 3(c)(1), which spoke of "a rate" and "the tax" in the singular. The plain singular language signaled that the school board could only ask voters to approve a single combined rate.

The AG distinguished her conclusion from the 1995 opinion two ways. First, the 1995 opinion had relied heavily on the prior wording of § 6-14-114, which required election officials to report "the number of votes cast for each millage" (suggesting the legislature contemplated separate votes). The legislature deleted that language in 1997, leaving only a requirement to report the "number of mills" for each purpose. Second, the 1995 opinion was itself cautious: the predecessor AG noted "considerable doubt" and warned that the answer was uncertain. Rutledge concluded the change in statutory wording supported reading Article 14, Section 3 as requiring a single rate vote.

Importantly, Rutledge said the ballot could still describe the components of the rate. The Constitution did not bar telling voters how the proposed rate would be split between operations, debt service, and construction. It just barred submitting each component for a separate up-or-down vote.

Currency note

This opinion was issued in 2017. 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

Q: What was the constitutional language the AG relied on?
A: Article 14, Section 3(c)(1) of the Arkansas Constitution authorized school districts to "levy, by a vote of the qualified electors respectively thereof, an annual ad valorem property tax . . . for the maintenance and operation of schools and the retirement of indebtedness." The Board was required to "submit the tax" at the annual school election, and "[i]f a majority of the qualified voters in the school district voting in the school election approve the rate of tax proposed by the Board of Directors, then the tax at the rate approved shall be collected as provided by law." The AG zeroed in on "the tax" and "a rate" being singular.

Q: Why did the AG find the 1997 statutory change relevant?
A: Before 1997, § 6-14-114(4) required election returns to show "the number of votes cast for each millage" for the current operation, building erection and equipment, and retirement of indebtedness. The 1995 opinion had read that as evidence the legislature expected separate votes. After 1997, the statute only required reporting the "number of mills" for each category, not separate vote totals. The AG read the change as the legislature stepping back from the idea of separate component votes, even if it had never directly taken a position.

Q: Could the ballot still tell voters what the rate would be used for?
A: Yes. The AG noted that § 6-14-114(4) still expected returns to show "[t]he number of mills for" each different purpose. So the ballot could describe the breakdown of how the rate would be allocated. What the ballot could not do was let voters split their decision and approve some components while rejecting others. It was a single up-or-down vote on the total package.

Q: Did Johnson v. Gates support the AG's reading?
A: Sort of. Johnson v. Gates (1967) considered a ballot that combined millages for more than one purpose. The court was not directly asked whether separate ballots were required, but suggested in dictum that if the ballot raised two or more independent issues, the argument for separate ballots would be stronger. The AG read Johnson as not actually deciding the issue, leaving the constitutional text as the controlling source.

Q: Why did the 1995 opinion get this differently?
A: The 1995 opinion was openly cautious ("there can be no assurance that a court faced with the question would reach the same conclusion"). It leaned on the pre-1997 statutory language that mentioned separate vote counts, and it acknowledged the constitutional text pointed the other way. By 2017, after the statutory change, AG Rutledge could read both the constitution and the statute as pointing in the same direction, away from separate ballots. The 2017 opinion did not formally overrule the 1995 opinion; it just declined to follow it on the now-changed law.

Background and statutory framework

School millage elections in Arkansas are unusual in that they are essentially the only tax that voters approve directly each year. The school board prepares a proposed budget, calculates the millage rate needed to fund it, and puts that rate to the voters at the annual school election. If voters approve, the rate stays. If they reject, the rate reverts to whatever was previously approved (because of the holdover provisions for property taxes).

The split among the millage components matters internally to the district: operations dollars cannot legally be redirected to debt service, and so on. But for voters, the question the AG decided was whether they could see those components and vote on each separately. The 2017 opinion said no: voters get one yes-or-no on the whole package.

The opinion left intact the practice of describing the components on the ballot, which is what most school districts continued to do. A ballot like "for the rate of X mills, of which X-1 mills are for maintenance and operation, X-2 for debt service, and X-3 for new construction" is fine. A ballot with three separate up-or-down votes on each piece is not.

Citations

• Ark. Const. art. 14, § 3(c)(1)
• Ark. Code Ann. § 6-14-114 (Repl. 2013)
• Ark. Code Ann. § 6-14-114(4) (Repl. 1993, since amended)
• Op. Att'y Gen. 95-225 (the 1995 opinion the request referenced)
• Ragland v. Alpha Aviation, 285 Ark. 182 (1985)
• Hercules, Inc. v. Pledger, 319 Ark. 702 (1995)
• Johnson v. Gates, 242 Ark. 631 (1967)

Source

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

Original opinion text

Opinion No. 2016-132
March 7, 2017
The Honorable Jake Files
State Senator
300 Free Ferry Landing
Fort Smith, AR 72903
Dear Senator Files:

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

This is in response to your request for an opinion on the following questions concerning school district millage elections:

1. May a school district employ a ballot that separates, and therefore permits separate votes upon, proposed millages for maintenance and operation on the one hand, and new construction, dedicated maintenance and operation, or debt service, on the other?

2. May a school district employ a ballot that separates, and therefore permits separate votes upon, proposed millages for new construction of one facility on the one hand, and new construction of another facility on the other?

As background for these questions, you note that a 1995 Arkansas Attorney General Opinion stated that "although considerable doubt remains and there can be no assurance that a court faced with the question would reach the same conclusion," a school district could employ a ballot that "separates, and therefore permits separate votes upon, proposed millages for maintenance and operation on the one hand, and new construction on the other." You further note that the laws discussed in Opinion 95-225 have since been amended.

RESPONSE

It is my opinion that the answer to each of your questions is "no," based on Article 14, Section 3, of the Arkansas Constitution. In my opinion, this constitutional provision does not allow for a ballot that separates, and therefore permits separate votes upon, the component parts of a proposed school millage.

DISCUSSION

Question 1: May a school district employ a ballot that separates, and therefore permits separate votes upon, proposed millages for maintenance and operation on the one hand, and new construction, dedicated maintenance and operation, or debt service, on the other?

Question 2: May a school district employ a ballot that separates, and therefore permits separate votes upon, proposed millages for new construction of one facility on the one hand, and new construction of another facility on the other?

I will address your questions together because, in my opinion, each turns on the proper interpretation of Arkansas Constitution, Article 14, Section 3, which states, in relevant part:

In addition to the uniform rate of tax . . . , school districts are authorized to levy, by a vote of the qualified electors respectively thereof, an annual ad valorem property tax on the assessed value of taxable real, personal, and utility property for the maintenance and operation of schools and the retirement of indebtedness. The Board of Directors of each school district shall prepare, approve, and make public not less than sixty (60) days in advance of the annual school election a proposed budget of expenditures deemed necessary to provide for the foregoing expenses, together with a rate of tax levy sufficient to provide the funds therefor, including the rate under any continuing levy for the retirement of indebtedness. The Board of Directors shall submit the tax at the annual school election or at such other time as may be approved by law. If a majority of the qualified voters in the school district voting in the school election approve the rate of tax proposed by the Board of Directors, then the tax at the rate approved shall be collected as provided by law . . . .

Constitutional and statutory provisions are interpreted in the same manner. The intent of the people is ordinarily determined by reference to the plain meaning of the words used. When the language of a constitutional provision is plain and unambiguous, each word must be given its obvious and common meaning. Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision.

Applying these principles, I note that the above constitutional provision discusses "a rate" of tax and "the tax" in the singular form. It does not refer to multiple individual, separate taxes or rates of tax. The words "the tax" and "a rate" of tax in the singular support the conclusion that the above-quoted language of Article 14, Section 3 contemplates that a school board may only present a single rate of tax on which the electors may vote in a school election. I believe this conclusion follows from the plain language of the Constitution.

It is therefore my opinion that the answer to each of the above questions is "no." A school district, in my opinion, may not employ a ballot that permits separate votes upon, for example, maintenance and operation on the one hand, and new construction, dedicated maintenance and operation, or debt service on the other.

Ark. Code Ann. § 6-14-114 and Attorney General Opinion 95-225

Your request for my opinion indicates a belief that Ark. Code Ann. § 6-14-114 governs whether a school district may employ separate ballots for distinct school millage issues. This belief appears to stem from a 1995 opinion written by my predecessor.

The referenced 1995 opinion addressed a question nearly identical to your own: "[W]hether or not a school district may employ a ballot that separates, and therefore permits separate votes upon, proposed millages for maintenance and operation on the one hand, and new construction on the other." My predecessor relied considerably on section 6-14-114 which, in 1995, required election officials to count the results and make returns to the county clerk at the close of each school election showing "the number of votes cast for each millage":

When the polls of each election are closed, the judges shall immediately proceed to count the votes, ascertain the results, and makes returns thereof to the county clerk showing:

In case of a division of the millage to be levied as school tax, the number of mills and the number of votes cast for each millage for:

(A) The current operation of the schools;
(B) The erection and equipment of school buildings; [and]
(C) The retirement of existing indebtedness . . . .

The 1995 opinion concluded that the above statute "clearly contemplate[d] that the people may vote separately on millages for different purposes." My predecessor cautioned, however, that there was no absolute assurance that separate ballots, and therefore separate votes, were permitted. The 1995 opinion bolstered its cautionary conclusion by referencing Ark. Const. art. 14, § 3, which the opinion noted "consistently refers in the singular to the rate of tax proposed to be levied and approved in the election."

Two years following this 1995 opinion, section 6-14-114 was amended. The language requiring reporting the "number of votes cast for each millage" was deleted. Section 6-14-114 now requires election officials to count the results and make returns to the county clerk at the close of each election showing "the number of mills for" the different purposes:

When the polls of each election are closed, the judges shall immediately proceed to count the votes, ascertain the results, and makes returns thereof to the county clerk showing:

(A) The additional mills for maintenance and operation;
(B) The additional mills for maintenance and operation that have been designated dedicated maintenance and operation mills;
(C) The debt service millage; and
(D) The total millage rate levied for all purposes in the school district in excess of the uniform rate of tax . . . .

Although it is not entirely clear from your correspondence, I gather you may be wondering whether providing for separate votes on the components of a proposed school millage is no longer permissible as a result of this change in statutory language. In my opinion, the statutory change is not determinative. Rather, it is my opinion, as explained above, that Ark. Const. art. 14, § 3 does not allow separate votes on the individual parts of a proposed school millage.

Sincerely,
LESLIE RUTLEDGE
Attorney General