Does Arkansas's new Amendment 95 (Article 7, Section 53) bar a county judge or sheriff from serving on regional boards, county equalization boards, or workforce councils?

Plain-English summary

Senator Bryan King asked whether serving on a list of Arkansas boards and commissions would count as holding a "civil office" under Article 7, Section 53 of the state constitution. That provision, added by Amendment 95, bars specified county officials from being appointed or elected to another civil office during their term. Attorney General Leslie Rutledge declined to classify the listed positions one by one because their actual powers and duties required fact-finding.

Rutledge described the governing test. A civil office involves a grant of sovereign power. Courts also consider whether the position and its continuing duties are established by law rather than contract, whether law fixes its tenure and compensation, and whether it calls for an oath, commission, or bond. No single indicator is conclusive. She expected the test developed for the similar bar on legislators in Article 5, Section 10 to apply to county officials under Section 53.

For one example, Rutledge said a county clerk's statutory service as secretary of the county equalization board appeared more likely to be additional duties of the existing clerkship than a separate civil office. She did not make a final ruling for the other appointments or a broad rule exempting ex officio positions.

Currency note

This opinion was issued in 2017. Check current constitutional law and the actual powers of a position before assessing a proposed appointment.

Common questions

Q: Did the AG decide whether all the listed board seats were civil offices?
A: No. Rutledge said each position required facts about its duties and authority, many of which were beyond the scope of an AG opinion. She offered the legal test and one tentative example.

Q: What matters most in the civil-office test?
A: The opinion quotes the definition of a civil office as a "grant and possession of the sovereign power." It also describes a position's legal creation, continuing duties, tenure, compensation, oath, commission, and bond as relevant indicators, with none conclusive alone.

Q: Is the county clerk's role as equalization-board secretary a second civil office?
A: Rutledge said it "appears more likely" that the legislature simply added duties to the existing county-clerk office. She did not state a categorical rule for other secretaries or board appointments.

Q: Where should an official seek a position-specific assessment?
A: The opinion recommends consulting the county's attorney or other local counsel for appointments that require factual investigation, particularly positions with private or strictly local entities.

Background and statutory framework

Article 7, Section 53 lists county offices whose holders may not be appointed or elected to another civil office during their elected term. Rutledge looked to the cases interpreting Article 5, Section 10's similar restriction on legislators. She also distinguished a new office from additional statutory duties imposed on a person who already holds an office. The classification depends on the particular position and its real authority.

Citations

• Ark. Const. art. 7, § 53
• Ark. Const. art. 5, § 10
• Wood v. Miller
• Lucas v. Futrall
• Harvey v. Ridgeway

Source

• Arkansas Attorney General opinions search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2017-028
August 10, 2017

The Honorable Bryan King
State Senator
871 CR 814
Green Forest, AR 72638

Dear Senator King:

This is in response to your request for an opinion on whether 23 boards or commissions within this state — some governmental in nature, others seemingly non-governmental or at least quasi-governmental — would be considered civil offices, and whether Article 7, section 53 of the Arkansas Constitution precludes county elected officials from being appointed to serve on such boards and commissions.

SUMMARY RESPONSE

I must respectfully decline to opine on the questions of (1) whether each of the numerous boards, commissions, or other entities you have listed in your request for my opinion constitutes a "civil office" for the purposes of the recently adopted Article 7, section 53, and (2) whether that same constitutional provision thus prohibits county elected officials from serving on them. As the discussion below illustrates, the application of the governing legal test requires discovery and analysis of numerous and varied facts concerning each entity. The fact finding required to address many of the entities you have listed is beyond the scope of an Attorney General's opinion.

I will nonetheless lay out below the prevailing law on what constitutes a "civil office" in the context of a similar and long-standing constitutional prohibition placed on sitting legislators. This corpus of law, in my opinion, should be equally applicable to the provisions of Article 7, section 53. This should be of significant help to you as you apply the law to the individual facts in each case.

BACKGROUND

In November 2016, Arkansas voters adopted Amendment 95, which amended several articles of the state constitution. Of relevance to this opinion, Amendment 95 amended Article 7 to add a new section — section 53 — concerning county elected officials, which reads:

> A person elected or appointed to any of the following county offices shall not, during the term for which he or she has been elected, be appointed or elected to any civil office in this state:
>
> (1) County judge;
> (2) Justice of the peace;
> (3) Sheriff;
> (4) Circuit clerk;
> (5) County clerk;
> (6) Assessor;
> (7) Coroner;
> (8) Treasurer;
> (9) County surveyor; or
> (10) Collector of taxes.

This amendment is very similar in language to a long-existing constitutional provision regarding sitting members of the General Assembly:

> No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State.

In light of this new constitutional provision, you have sought my opinion regarding whether county elected officials' service on 23 boards or commissions of various types would be considered civil offices under Article 7, section 53, and thus prohibited.

DISCUSSION

In order to determine whether a particular position like the ones you mention falls within Article 7, section 53's proscription for elected county officials, one must first determine whether the position is considered a "civil office." The Arkansas Supreme Court has stated the following in defining the term "civil office" in the context of Article 5, section 10's similar prohibition against such simultaneous service by sitting legislators:

> Early on, we cited with approval a definition of "civil office" offered by the Iowa Supreme Court: "A civil office is a grant and possession of the sovereign power." Wood v. Miller, 154 Ark. at 322-323, 242 S.W. at 575, citing State v. Spauling, 102 Iowa 639, 72 N.W. 288 (1897). Sovereign power is the authority of the State to act. BLACK'S LAW DICTIONARY 1396 (6th ed. 1990). Later, we wrote that a civil office is "an office created by civil law within one of the only three branches of government provided for under the present Constitution of this state." Harvey v. Ridgeway, 248 Ark. at 46, 450 S.W.2d at 287.

In Wood v. Miller, quoted in the above excerpt, the Court also quoted with approval one treatise's statement that "[a]ny officer who holds his appointment under the government * * * is a civil officer."

The Court has declined to set forth any hard and fast rules with regard to the nature of a "civil office," but it has observed that in any public office the "duty [is] a continuing one, which is defined by rules prescribed by the government and not by contract, which an individual is appointed by government to perform...." The Court has also consistently adhered to the view that an "office" is created by law, with the tenure, compensation, and duties of the position also usually fixed by law. Other typical factors signifying a public office include the taking of an oath of office, the receipt of a formal commission, and the giving of a bond, although the Court has consistently maintained that no single factor is ever conclusive.

In the time period since Wood and Lucas v. Futrall, the Court has consistently applied the principles set forth in those cases so as either to prohibit or to allow dual service insofar as it applies to members of the General Assembly pursuant to Article 5, section 10.

I have had occasion to apply the above precepts and precedents to opine that the position of a commissioner for a drainage improvement district is a civil office. In that opinion, I noted that a commissioner's position is created by law, and the law — not a contract of employment — expressly establishes the commissioners' duties ("assess all benefits ... and all damages...."). Furthermore, I noted that the duties are continuing, not occasional or intermittent; and that other indicia of a civil office, including the receipt of compensation and expenses and the taking of an oath of office, were present. Finally, and perhaps most significantly for the purposes of that opinion, it was clear that the position of an improvement district commissioner involved the exercise of sovereign power as agents of the State both by statutory authority and "by legislative delegation through the taxing power of the [S]tate...."

Thus, we can see what the Court generally looks for in determining whether a given position is a "civil office," at least for the purposes of Article 5, section 10. I have no reason to doubt that the Court would apply the same definition and consider the same factors in determining a "civil office" in the context of Article 7, section 53. Accordingly, in my opinion, the above principles should be applied to a given office or position, taking into consideration the facts of each specific case.

In your request for my opinion, you note that some state statutes require at least one of the elected county officials named in Article 7, section 53 to serve on a specific board or commission. This raises another aspect that must be considered when looking at a specific appointment, that is, whether the statute is truly creating a "civil office" or is merely imposing additional duties on the elected official in question.

One of the appointments you asked about — a county clerk's service as secretary of his or her county's property tax assessment equalization board — is exemplary of this distinction. According to state law, "[t]he county clerk or his or her designee shall serve as secretary of the county equalization board of his or her county and shall keep a complete and accurate journal of its proceedings and perform such other duties as may be by law required by the county equalization board." Other responsibilities of the clerk to a county equalization board include the taking and filing of oaths by the board members and keeping the Assessment Coordination Department apprised of the names and addresses of the board members.

From this description of what the county clerk is charged with by statute, we can see that serving as the secretary of the county equalization board has few, if any, of the indicia described above to be a "civil office" for the clerk. Instead, it appears more likely that the legislature has simply added duties for the county clerk along with those already prescribed by law.

With respect to the list of 18 other boards or commissions you have asked about, I must respectfully decline to address each one of those individually. However, the foregoing discussion should greatly assist in the analysis of many of the boards and commissions you have inquired about and that are created pursuant to and under the direction of state law. Some of the boards or commissions you mention, though, appear to be for private or strictly local entities. I am unable to opine on these appointments, as the level of fact-finding necessary to determine their duties and authority is beyond the scope of an Attorney General's opinion. A county's attorney or other local counsel should be consulted in such cases.

Sincerely,

LESLIE RUTLEDGE
Attorney General