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 asked whether the State could pay for commissioners to visit an out-of-state cultivation facility. Amendment 98 allowed a per diem of up to $85 for meetings or Commission business, but barred commissioners from receiving other compensation, expense reimbursement or in-lieu-of payments.

AG Leslie Rutledge concluded that Amendment 98 did not categorically bar State payment for the proposed travel. She distinguished State spending on Commission business from repayment to a commissioner who had already used personal funds. Repaying a commissioner for documented out-of-pocket travel expenses would be prohibited reimbursement.

The opinion also treated the in-lieu-of clause as a real limit: commissioners could receive nothing else of value in consideration for their services beyond the authorized per diem. Rutledge wrote that State-paid travel on legitimate State business could be viewed as an in-lieu-of payment. She nevertheless concluded that State payment for the trip was possible if arranged without prohibited expense reimbursement. Because the request gave no payment details, she did not approve any particular booking or payment method. How to arrange compliant travel was a fact-intensive question outside the opinion's scope.

Currency note

This opinion was issued in 2017. Later law may affect the analysis. Check current rules and the particular payment arrangement before relying on it.

Common questions

Could a commissioner buy a ticket personally and ask the State to repay the cost?
No. The AG said that repayment of documented personal travel expenses is the expense reimbursement Amendment 98 forbids.

Did the AG approve direct State purchase of flights or lodging?
She concluded that State payment for legitimate Commission travel was not categorically barred. She did not review a particular purchase arrangement, so the opinion does not certify a specific method as compliant.

What does the in-lieu-of restriction cover?
The AG read it to prohibit anything else of value received for a commissioner's services in place of the authorized per diem. She also said State-paid travel could be viewed as such a payment. The opinion gives no final classification of a proposed travel arrangement because the payment facts were missing.

Why did the AG distinguish travel expenses from compensation?
She reasoned that travel paid by the State for State business would not be an added benefit in return for a commissioner's services. The opinion separately analyzes reimbursement and in-lieu-of payments.

What information would be needed for a definite answer?
The AG said the question of how the trip would be arranged and paid for required facts that the request did not provide. The opinion therefore leaves any particular payment plan unresolved.

Background and statutory framework

Amendment 98 established the Commission and gave it licensing duties for cultivation facilities and dispensaries. Section 19(d) authorized a limited per diem and barred other compensation, expense reimbursement and in-lieu-of payments. The AG read each term separately, applying rules that give effect to every word and treating the Arkansas Constitution as a limit on State power. Her conclusion addressed the possibility of State-paid travel for Commission business, subject to the express reimbursement prohibition and the unresolved facts of implementation.

Citations

• Arkansas Medical Marijuana Amendment of 2016, § 19(d) (per diem and payment restrictions)

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