Could the State of Arkansas pay travel costs for Medical Marijuana Commission members to tour an out-of-state cultivation facility despite Amendment 98's no-reimbursement clause?

Plain-English summary

The Arkansas Medical Marijuana Commission (AMMC), facing a brand-new licensing job under Amendment 98 of the Arkansas Constitution, asked whether the State could pay for commissioners to tour a cultivation facility in another state. Amendment 98 limited commissioner pay to a per-diem of up to $85 and expressly forbade "other compensation, expense reimbursement, or in-lieu-of payments."

Attorney General Leslie Rutledge concluded that Amendment 98 did not categorically prohibit the State from paying for the travel. The constitutional language barred three things: extra compensation, reimbursements, and in-lieu-of payments. Travel paid for directly by the State on State business was none of those, in the AG's reading. The key word was "reimbursement," which means repayment of an expense already incurred. If a commissioner paid for a flight personally and then submitted receipts, that would be reimbursement and is barred. If the State purchased the flight directly, that was not reimbursement and was permissible.

The AG also warned that section 19(d)(2) cannot be read to forbid the State from incurring any expense at all in support of Commission business. That reading would render the word "reimbursement" mere surplusage, contrary to the rule that constitutional language be given effect. So a clean structure (State purchases travel directly, no commissioner out-of-pocket spending) was acceptable.

The opinion left open the operational details. Exactly how to arrange and pay for travel without crossing the reimbursement line was a fact-intensive question the AG could not answer definitively.

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 does Amendment 98 § 19(d)(2) actually say?
A: It says commissioners "shall receive no other compensation, expense reimbursement, or in-lieu-of payments." That language sits next to § 19(d)(1), which authorizes a per-diem of up to $85 per meeting day or per day of Commission business.

Q: Why isn't directly purchased travel "compensation"?
A: The AG read "compensation" in light of the surrounding text and Black's Law Dictionary's definition: "remuneration and other benefits received in return for services rendered, especially salary or wages." Travel paid by the State for State business is not a personal benefit in return for services, so it is not "other compensation."

Q: Why isn't direct travel payment "reimbursement"?
A: "Reimbursement" means repayment for expenditures one has already incurred. If the commissioner never incurs the expense personally, there is nothing to reimburse. The State is just paying its own bill.

Q: Why isn't it an "in-lieu-of payment"?
A: "In lieu of" means "instead of." The constitutional ban targets payments substituted for the per-diem. State business travel is not a substitute for the per-diem; it is not even paid to the commissioner.

Q: What about commissioners using their personal credit cards on the trip?
A: That was the practical risk the AG flagged. If a commissioner paid for hotels or meals personally and then sent the State an expense report, the State would be making "reimbursement," which is forbidden. The arrangement would need to keep all expenses off the commissioner's personal account.

Q: What kinds of arrangements would likely satisfy the AG's reading?
A: The opinion did not prescribe specifics, but the safe pattern is direct State payment: the State books the airline tickets, the State pays the hotel directly, the State arranges meals or per-diem-funded meals, and the commissioner never pays out of pocket. The opinion left implementation to the State's procurement processes.

Q: How does this compare to other Arkansas state officials?
A: Members of the Executive Department and the General Assembly can be reimbursed for documented expenses related to their public duties (Ark. Const. amend. 70). Members of the Independent Citizens Commission, like AMMC commissioners, are barred by parallel "no reimbursement" language (Ark. Const. art. 19, § 31). The AMMC restriction is therefore unusually tight.

Background and statutory framework

Voters approved Amendment 98 (the Arkansas Medical Marijuana Amendment of 2016) to legalize medical marijuana and create the Medical Marijuana Commission to license dispensaries and cultivation facilities. The amendment included a strict compensation cap intended to limit conflicts of interest: a small per-diem and nothing else, no salary, no reimbursements, no substitute payments.

The Arkansas Constitution operates as a limit on state power, not a grant. Where the constitution does not prohibit something, the State may act. The AG used that framing to interpret the no-reimbursement clause narrowly: it bars exactly what it lists, no more.

Two textual canons drove the analysis. Expressio unius est exclusio alterius (the expression of one thing is the exclusion of another): the amendment listed three specific prohibitions, so other forms of expense handling are not implicitly forbidden. Noscitur a sociis (a word is known by its company): "other compensation" follows the per-diem provision and refers back to it, meaning compensation for services rendered, not all forms of state expenditure on Commission activities.

The opinion also relied on the rule that constitutional language must be given effect: every word matters, and "reimbursement" cannot be expanded into a categorical ban on all State spending or it becomes mere surplusage.

Citations and references

Constitution and statutes:

• Ark. Const. amend. 98 (Arkansas Medical Marijuana Amendment of 2016), §§ 8, 19
• Ark. Const. amend. 70, § 1 (Executive Department documented expense reimbursement)
• Ark. Const. art. 19, § 31 (Independent Citizens Commission, parallel "no reimbursement" language)

Cases (interpretive canons):

• Gazaway v. Greene County Equalization Bd., 314 Ark. 569, 864 S.W.2d 233 (1993) (Ark. Supreme Court)
• Kervin v. Hillman, 226 Ark. 708, 292 S.W.2d 559 (1956) (Ark. Supreme Court)
• City of Fayetteville v. Washington County, 369 Ark. 455, 255 S.W.3d 844 (2007) (Ark. Supreme Court)
• State v. Oldner, 361 Ark. 316, 206 S.W.3d 818 (2005) (Ark. Supreme Court)
• Stephens v. Arkansas School for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000) (Ark. Supreme Court)
• Ozark Gas Pipeline Corp. v. Arkansas Pub. Serv. Comm'n, 342 Ark. 591, 29 S.W.3d 730 (2000) (Ark. Supreme Court)
• Weldon v. Southwestern Bell Telephone Co., 271 Ark. 145, 607 S.W.2d 395 (1980) (Ark. Supreme Court, noscitur a sociis)
• State v. Ashley, 1 Ark. 513 (1839) (Ark. Supreme Court, constitution as a limit on state power)

Source

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

Original opinion text

Opinion No. 2017-007
April 26, 2017

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Dr. Ronda Henry-Tillman, Chair
Arkansas Medical Marijuana Commission
1515 West 7th Street, Suite 503
Little Rock, AR 72201

Dear Dr. Henry-Tillman:

I am writing in response to your request for my opinion concerning the duty of the Arkansas Medical Marijuana Commission ("AMMC" or "the Commission") to license medical marijuana dispensaries and cultivation facilities in the State under the Arkansas Medical Marijuana Amendment of 2016 ("Amendment 98"). You state that the AMMC is interested in touring a marijuana cultivation facility in another state with experience in medicinal marijuana cultivation to try to assist the Commission in the discharge of its duties. To this end, you have posed a question, which I have paraphrased as follows:

In light of Section 19(d)(2) of the Arkansas Medical Marijuana Amendment of 2016, can the State of Arkansas provide travel, accommodation, and other related expenses for a member of the AMMC to tour an out-of-state marijuana cultivation facility?

RESPONSE

In my opinion, Amendment 98 does not prevent the State from providing for the travel envisioned by your question as long as the travel is arranged and paid for without violating Amendment 98's clear prohibition against Commission members receiving "expense reimbursement." You have provided no information concerning how such travel expenses would be provided by the State. Fact questions could arise in this regard, precluding a definitive answer in the limited context of an Attorney General opinion.

DISCUSSION

Amendment 98 establishes a Medical Marijuana Commission with the primary duty to license medicinal marijuana cultivation facilities and dispensaries in the State. The Commission is charged with "determin[ing] the qualifications for receiving a license to operate a dispensary or a license to operate a cultivation facility and the awarding of licenses." In exchange for such service, the amendment permits the Medical Marijuana Commission to annually authorize a per-diem payment to its members in an amount not to exceed $85 for each meeting the members attend or for any day the members are performing "any proper business of the [C]ommission." The amendment further states that the commissioners "shall receive no other compensation, expense reimbursement, or in-lieu-of payments."

The same rules used to interpret statutes are used to interpret the constitution. The common aim of the rules of interpretation is to find and give effect to the intent of those who drafted and enacted the provision at issue. Plain and unambiguous language is generally given its obvious meaning in common language. Moreover, it is an established rule that language in a statute will not be given a construction that renders it mere surplusage. Constitutional provisions, like statutes, are construed so that no word is left void, superfluous, or insignificant; and where meaning and effect are given to every word in the statute if possible.

Additionally, two other rules of construction may be useful in this matter. First, the maxim expressio unius est exclusio alterius means that the expression of one thing may be interpreted to be the exclusion of another thing. Second, the statutory construction doctrine of noscitur a sociis ("it is known from its associates") means that a term may be defined by an accompanying word.

I am also guided by the fact that the Arkansas Constitution is a limitation on, not a grant of, the power of the State. While the United States Constitution is a grant of governmental powers, beyond the scope of which the federal government has no power to act, the Arkansas Constitution acts to limit what the State may do. Its provisions set forth what the State cannot do and, in the absence of such limiting language (and within the confines of any conflicting federal law), the government may act.

With these precepts in mind, we can address the relevant language in Amendment 98 regarding Commission members' compensation and expenses.

Section 19(d) gives the Commission the power to authorize per-diem payments to the commissioners for each meeting the members attend or for any day the members are performing Commission business. This section also prohibits the commissioners from receiving "other compensation, expense reimbursement, or in-lieu-of payments." These words and phrases were expressly and exclusively used. Under the expressio unius doctrine, that is all that section 19(d)(2) was meant to prohibit. Moreover, these words and phrases have easily ascertained meanings.

Section 19(d)(2) states that the commissioners "shall receive no other compensation . . . ." Amendment 98 does not define the word "compensation." But the word is generally defined as "[r]emuneration and other benefits received in return for services rendered; [especially], salary or wages." Additionally, the amendment specifically bars the commissioners from receiving "other compensation" (emphasis added). Applying the "it is known by its associates" doctrine of statutory construction, it seems clear that the "other compensation" listed in section 19(d)(2) is meant to refer back to the $85 per diem authorized in section 19(d)(1). Thus, it is reasonable to interpret the phrase "shall receive no other compensation" as precluding the commissioners from receiving any additional remuneration beyond the per diem they receive in consideration for services rendered to the Commission.

In this light, and in my opinion, the commissioners' travel, paid for by the State while on State business, would not be viewed as an additional benefit for services rendered, and thus would not be "other compensation" as prohibited by Amendment 98.

Section 19(d)(2) also prohibits the commissioners from receiving any "expense reimbursement." The word "reimbursement" is critical here. "Reimbursement" is synonymous with "repayment." In common understanding, an expense reimbursement is a repayment for expenditures one has incurred out of pocket. The phrase "shall receive no . . . expense reimbursement" thus makes clear that the commissioners could not incur travel expenses as contemplated in your letter using their personal money, document such expenses, and be repaid by the State.

Importantly, however, section 19(d)(2) does not, in my opinion, foreclose the State from incurring any expenses at all in furtherance of Commission business. To interpret that language otherwise would render the word "reimbursement" meaningless and as mere surplusage. As noted above, courts will read a statute or constitutional provision in a way, if possible, so that no word is left "void, superfluous, or insignificant."

Accordingly, in my opinion, while there is a clear prohibition against the State reimbursing, or repaying, the commissioners for any out-of-pocket expenses they incur, section 19(d)(2) is not a limitation on the State's ability to pay for commissioners' travel while on State business. The limitation is that the State's paying for such expenses cannot be in the form of a reimbursement to commissioners for expenses they have paid for personally and documented.

Finally, under section 19(d)(2), the commissioners are prohibited from receiving "in-lieu-of payments." "In lieu of" means "[i]nstead of or in place of." This means that the commissioners could not accept anything else of value in consideration for their services other than the authorized per diem allowed by section 19(d)(1). In my opinion, it cannot be gainsaid that permitting the State to pay for travel while on legitimate State business, as opposed to a commissioner's personal travel, could be viewed as an in-lieu-of payment.

In sum, it is my opinion that Amendment 98 does not preclude the State from paying for commissioners' out-of-state travel to tour a marijuana cultivation facility as long as the travel is arranged and paid for without violating Amendment 98's clear prohibition against Commission members receiving "expense reimbursement." It is not difficult to see how such travel could be beneficial to the Commission in the exercise of its duties. How such travel could be arranged and paid for so that it would not violate the clear terms of section 19(d)(2), however, would be a fact-intensive issue that is beyond the scope of an Attorney General's opinion.

Sincerely,

LESLIE RUTLEDGE
Attorney General