Are fire-protection services provided to an Arkansas city automatically 'in kind,' and can the city charge the fire station rent?

Plain-English summary

Representative Jack Fortner asked two related questions about a fire station in the City of Omaha (Boone County, Arkansas) that provided fire services to the city. First, were those services "in kind"? Second, could the city charge the fire station rent?

Attorney General Leslie Rutledge declined to dig into the specific arrangement because she had not been told what it was. She offered general legal background instead. Under Ark. Code Ann. § 14-53-101, an Arkansas city has two options for fire protection: establish its own fire department, or contract with an existing certified fire department for "city fire protection." When a city goes the contract route, the services delivered are not "in kind" as a matter of law. Whether they happen to be characterized as in-kind under a particular contractual arrangement is a question for local counsel reviewing that contract.

On the rent question, the AG noted that Arkansas cities are statutorily declared "bodies politic and corporate" with explicit authority to contract, acquire and hold real estate, and "sell, convey, lease, rent, or let any real estate or personal property owned or controlled by the municipal corporation." That broad authority generally supports a city charging rent for use of its property. But, again, the legality of any specific rental arrangement depends on its terms.

The opinion was deliberately a general framework. The AG made clear she could not opine on the specific Omaha situation without more facts, and the analysis would belong to local counsel.

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 Arkansas law say a city must do for fire protection?
A: Section 14-53-101 starts with a default rule: the city council "shall establish fire departments and provide them with proper engines and such other equipment as shall be necessary to extinguish fires and preserve the property of the city and of the inhabitants from conflagration." The city must provide for fire protection.

Q: What is the alternative to running a city fire department?
A: The same statute, in subsection (a)(2), allows a city council to enter into "a contract or interlocal agreement for city fire protection with an existing fire department certified by the Arkansas Fire Protection Services Board." Since 2015, that has included nonprofit fire departments, certified volunteer departments, and even fee-based private departments.

Q: Why does it matter whether the services are "in kind"?
A: "In kind" is a contracting and accounting term. In-kind services are typically counted as a non-cash contribution toward an obligation or matched against a grant requirement. If a city's fire arrangement counts as in-kind, that affects bookkeeping, federal grant compliance, and intergovernmental match calculations. The AG's answer that a § 14-53-101 contract is not in-kind "as a matter of law" means that simply having the arrangement does not automatically classify it that way; the contract terms would have to specifically designate the contribution as in-kind.

Q: Can the city charge the fire department rent for the building?
A: Generally yes. Cities have broad statutory authority over their own real estate. Ark. Code Ann. § 14-54-302(a)(1) authorizes cities to "sell, convey, lease, rent, or let any real estate or personal property owned or controlled by the municipal corporation." So if the building belongs to the city, charging rent is within the city's authority.

Q: Could rent and the fire-protection contract be intertwined?
A: That is the practical concern the AG was tiptoeing around. A city cannot contractually reduce a fire-protection contractor's compensation to nothing or otherwise misuse public assets. If a city is paying a fire department for services and simultaneously charging rent for the building, the net economics still need to comply with public-purpose requirements and any constitutional constraints (Article 12 § 5, for example, can be triggered if the recipient is a private corporation receiving a benefit). That cross-cutting analysis was not in scope for the AG's general response.

Q: What kinds of fire departments can be "certified"?
A: Per Ark. Code Ann. § 20-22-802(4), the definition includes both "membership fee-based private fire departments" and "the entire range of volunteer fire departments." That broad definition is what makes the contract option workable for small cities like Omaha that cannot or do not want to staff a full-time department.

Background and statutory framework

Arkansas's fire-protection regime gives cities flexibility. Some cities staff their own departments; many smaller cities contract with regional, volunteer, or nonprofit departments under § 14-53-101. The certification framework in § 20-22-802 ensures that contracted departments meet basic standards.

The city-property statutes (§§ 14-54-101, 14-54-301, 14-54-302) reflect a baseline rule: cities own their property, can use it for any lawful municipal purpose, and can lease or rent it. That power is not unlimited (specific federal grant covenants, deed restrictions, or constitutional constraints can apply), but the default is broad.

The AG's reluctance to opine on Omaha's specific arrangement is consistent with longstanding office practice. AG opinions interpret legal authority; they do not analyze the contractual particulars of one city's deal with one fire department. Those are for the city attorney or contracted local counsel.

Citations and references

Statutes:

• Ark. Code Ann. § 14-53-101 (city fire protection options)
• Ark. Code Ann. § 14-54-101 (cities as bodies politic)
• Ark. Code Ann. § 14-54-301 (acquisition of real estate)
• Ark. Code Ann. § 14-54-302(a)(1) (lease and rental authority)
• Ark. Code Ann. § 20-22-802(4) (definition of certified fire department)

Prior opinion:

• Op. Att'y Gen. 2015-047 (history of § 14-53-101 and the 2015 expansion to nonprofit certified fire departments)

Source

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

Original opinion text

Opinion No. 2017-008
April 25, 2017

The Honorable Jack Fortner
State Representative
343 MC 4016
Yellville, AR 72687-9030

Dear Representative Fortner:

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

You have requested my opinion on the following:

There is a fire station in the City of Omaha. They provide fire services to the city. Are these considered "in kind" services? Can a city charge a fire station rent?

RESPONSE

I must note at the outset that I lack sufficient information from you to provide a thorough response. Your correspondence included no specific information about the relevant fire services or the pertinent circumstances giving rise to whatever dispute or concern has prompted these questions. I am consequently limited in my ability to identify the controlling principles of law. Without knowing the precise context of your questions, my opinion must of necessity be limited to a general discussion of what I presume is the relevant state law concerning city fire protection services.

DISCUSSION

I gather from the wording of your questions that the city at issue has not established its own fire department. It appears, instead, that some entity other than a city fire department is providing fire protection for the city. I have no information regarding the particular arrangement, but I will note that pursuant to Ark. Code Ann. § 14-53-101, a city may either "establish fire departments" or contract for "city fire protection":

(a)(1) Except as provided in subdivision (a)(2) of this section, the city council shall establish fire departments and provide them with proper engines and such other equipment as shall be necessary to extinguish fires and preserve the property of the city and of the inhabitants from conflagration.

(2) In lieu of establishing its own fire department under this section, the city council by ordinance may enter into a contract or interlocal agreement for city fire protection with an existing fire department certified by the Arkansas Fire Protection Services Board.

Section 14-53-101 does not prescribe or otherwise address the terms of any such contract or agreement for "city fire protection." With regard, therefore, to your question concerning "in kind" services, it seems clear that services provided under a contract or agreement entered pursuant to section 14-53-101 are not considered "in kind" as a matter of law. Whether or not they are considered "in kind" under the terms of a particular contractual arrangement is a separate inquiry that falls outside the scope of an opinion from this office. That question is better directed to local counsel, who could presumably address the issues with full knowledge of the pertinent circumstances.

In response to the question whether a city can "charge a fire station rent," cities are declared "bodies politic and corporate" with express authority to "contract and be contracted with." They are also expressly authorized to "acquire and hold real estate" and to "sell, convey, lease, rent, or let any real estate or personal property owned or controlled by the municipal corporation[.]" This broad statutory authority would generally support a city charging rent for the use of its property. I cannot opine, however, regarding any rental issue that might arise under a particular agreement involving fire services. Again, that is a matter that must be addressed by local counsel.

Sincerely,

LESLIE RUTLEDGE
Attorney General