Can an Arkansas school district let voters cast separate votes on parts of a proposed school millage?

Plain-English summary

Senator Jake Files asked whether a school district could let voters decide separately on maintenance and operation millage and millage for new construction, dedicated maintenance and operation, or debt service. He also asked whether voters could cast separate votes on millages for construction of two different facilities. Attorney General Leslie Rutledge answered no to both questions.

The opinion rests on Article 14, Section 3 of the Arkansas Constitution. It refers to "a rate" and "the tax" in the singular. Rutledge read those words to mean that a school board may present only one proposed rate for the electors to vote on, rather than separate votes on its component parts.

A 1995 AG opinion had cautiously reached a different answer based considerably on an earlier version of Ark. Code Ann. § 6-14-114, which required election returns to report votes cast for each millage. That reporting language was later deleted. Rutledge called the statutory change "not determinative" and based her answer on the Constitution. This opinion addresses separate votes on millage components; it does not decide how a ballot may describe the proposed rate.

Currency note

This opinion was issued in 2017. Check current law and later decisions before relying on its conclusions for an election today.

Common questions

Q: Can voters vote separately on school operations and debt service millages?
A: According to this opinion, no. Rutledge concluded that a ballot may not permit separate votes on maintenance and operation on one hand and debt service, dedicated maintenance and operation, or new construction on the other.

Q: Can voters choose separately between construction millages for two facilities?
A: No. The request expressly asked about separate votes for construction of one facility and another, and Rutledge answered no to both questions.

Q: Why did the Attorney General reject separate votes?
A: She pointed to the singular wording of Article 14, Section 3: "a rate" of tax and "the tax." In her reading, the school board presents a single rate for the voters' approval.

Q: Did the amendment to § 6-14-114 decide the issue?
A: No. The statute once required reporting "the number of votes cast for each millage," language on which the 1995 opinion relied. That language was removed, but Rutledge said the change was "not determinative" because Article 14, Section 3 controlled her answer.

Q: Does this opinion prescribe a particular ballot layout or forbid showing the components of the rate?
A: It does not decide either question. Its conclusion concerns a ballot that permits separate votes on the components of a proposed school millage.

Background and statutory framework

Article 14, Section 3 requires a school district's board to prepare and publicize a proposed budget and a sufficient tax rate before the annual school election. The provision says the board shall submit "the tax" and describes voter approval of "the rate of tax proposed by the Board of Directors." Rutledge relied on that singular language to answer both questions.

The request pointed to Opinion 95-225. That earlier opinion had read § 6-14-114's former instruction to report votes cast for each millage as support for separate votes, while acknowledging "considerable doubt" and the Constitution's singular wording. The later statute requires reporting mills for various purposes and a total rate instead. Rutledge did not treat that statutory amendment as the basis for her conclusion.

For a district considering a school millage election, the opinion's practical rule is to avoid asking voters for separate approval of component millages. It leaves the wording of a ballot that presents a single vote unresolved.

Citations

• Ark. Const. art. 14, § 3
• Ark. Code Ann. § 6-14-114
• Op. Att'y Gen. 95-225 (discussed in the opinion)

Source

• Arkansas Attorney General opinions search: 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