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

In November 2016, Arkansas voters approved Amendment 95, which (among other things) added Article 7, Section 53 to the state constitution. The new section says a person elected or appointed to certain county offices (county judge, JP, sheriff, circuit clerk, county clerk, assessor, coroner, treasurer, county surveyor, tax collector) "shall not, during the term for which he or she has been elected, be appointed or elected to any civil office in this state."

Senator Bryan King asked the AG for a ruling on whether each of 23 specific boards or commissions is a "civil office" subject to the prohibition. The AG declined to issue itemized rulings, explaining that whether a given position is a civil office is a fact-intensive question that depends on each board's actual duties, structure, and authority. But the AG provided the framework Arkansas courts apply.

The civil-office test has several elements drawn from a long line of cases interpreting the parallel Article 5, Section 10 prohibition on legislators holding civil offices:

1. Sovereign power. Citing Wood v. Miller, 154 Ark. 318 (1922), and State Board of Workforce Education v. King, 336 Ark. 409 (1999): a civil office is "a grant and possession of the sovereign power" of the state. This is the most important factor.
2. Created by law. The position must be established by statute, ordinance, or other legal authority, not just by contract.
3. Continuing duties prescribed by government. The duties are continuing and defined by rules prescribed by the government, not by an employment contract (Lucas v. Futrall, 84 Ark. 540 (1907)).
4. Fixed tenure, compensation, and duties. Tenure, salary, and responsibilities are usually set by law.
5. Other indicia. Receipt of a formal commission, taking an oath of office, or giving a bond all weigh toward office. No single factor is conclusive.

The "additional duty" exception. Citing Sparling v. Refunding Board, 189 Ark. 189 (1934), the AG noted that when the legislature simply layers more responsibilities onto an existing officeholder (rather than creating a new office), the new responsibility is not a "civil office." The county clerk's role as secretary of the county equalization board (under § 26-27-307) was the AG's lead example. The clerk's duties there are statutorily added to the existing clerkship, not a free-standing office.

Why Article 5 § 10 cases govern. Article 5, Section 10 has long barred sitting legislators from "be[ing] appointed or elected to any civil office under this State." The new Section 53 says nearly the same thing about county officials. The AG held the same definition should apply (Vance v. Austell, 45 Ark. 400 (1885)). The footnote acknowledges a textual difference (Section 10 says "under this State," Section 53 says "in this state") but treats this as "a distinction without a difference" given the substantive overlap.

Examples from prior case law. Positions held to be civil offices: deputy prosecuting attorney (Martindale), school director (Williams v. Douglas), member of the state board of pardons and paroles (Starnes v. Sadler), county election commissioner (Jones v. Duckett), member of state sovereignty commission (Smith v. Faubus), mayor (Collins v. McClendon), drainage improvement district commissioner (Op. Att'y Gen. 2015-142). Position held not to be a civil office: delegate to constitutional convention (Harvey v. Ridgeway; not a member of one of the three branches), auditor for burial association board (Haynes v. Riales).

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.

Background and statutory framework

Amendment 95. Arkansas voters approved this multi-subject amendment in November 2016. Section 6 added Article 7, Section 53 to the state constitution:

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.

The list mirrors the long-standing Article 5, Section 10 prohibition on sitting legislators holding "any civil office under this State."

The civil-office test in Arkansas. The Arkansas Supreme Court's leading articulation is in State Board of Workforce Education v. King, 336 Ark. 409 (1999):

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. 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.

Other indicia: continuing duties prescribed by government rather than contract (Lucas v. Futrall); fixed tenure, compensation, and duties (Maddox v. State; Martindale); commission, oath, or bond.

The AG's reasoning

Why the AG declined to rule on all 23 entities. Senator King's list included a mix of governmental, quasi-governmental, and arguably non-governmental boards. To assess each one would require fact-finding the AG's office is not equipped to do in an opinion: how the board is composed, what powers it actually exercises, whether its members take oaths, whether it has independent contracting authority, and so on. The AG limited the response to the legal framework and one worked example.

The county clerk equalization-board example. Under Ark. Code Ann. § 26-27-307(a), the county clerk "shall serve as secretary of the county equalization board" of the clerk's county. The clerk takes and files board members' oaths and keeps the Assessment Coordination Department informed of names and addresses. None of this gives the clerk independent sovereign authority. The AG concluded these duties "appear[] more likely to be duties [the legislature has] simply added ... along with those already prescribed by law" rather than a separate civil office.

Sparling and the additional-duties doctrine. Sparling v. Refunding Board, 189 Ark. 189 (1934), is the controlling precedent for distinguishing additional duties from new offices. The Sparling Court rejected a constitutional challenge to a tax Refunding Board composed of constitutional officers. Membership on the Board was not "an additional office," but merely "additional duties ... by the [legislature] on the holders of the respective offices." The same logic shields many secretary-by-statute and ex-officio appointments from triggering Section 53.

The "civil office in this state" vs. "civil office under this State" textual difference. Section 53 uses "in this state"; Section 10 uses "under this State." The AG read these as substantively equivalent. Wood v. Miller defined a civil officer as one "who holds his appointment under the laws of the State," and the AG concluded that a civil office in Arkansas would also be one under Arkansas, regardless of the preposition.

Practical guidance. The AG suggested that for boards "created pursuant to and under the direction of state law," the framework provided would aid analysis. Specifically:

• Public facilities boards (Ark. Code Ann. § 14-137-101 et seq.)
• Soil conservation districts (§ 14-125-101 et seq.)
• County airport commissions (§ 14-357-101 et seq.)
• County health boards (§ 14-262-101 et seq.)
• Levee improvement districts (§ 14-123-201 et seq.)

For private or strictly local entities on King's list, the AG noted that fact-finding is "beyond the scope of an Attorney General's opinion" and recommended consulting the county's attorney.

Common questions

Why was Amendment 95 added?
The amendment was a multi-issue ballot measure. Its supporters argued that county officials should focus on their elected duties and not stack themselves on multiple boards. Opponents argued the change would limit legitimate local-government efficiency. The AG opinion does not weigh those policy questions.

Does this opinion mean a county judge can serve on his county's solid-waste district board?
The AG did not directly answer that. Regional solid waste management districts (§ 8-6-701 et seq.) appeared on King's list. The AG's framework would ask whether the board exercises sovereign power, has continuing statutory duties, and was created as an office (rather than as additional duties for existing officeholders). Most regional solid-waste boards exercise rule-making, fee-setting, and contracting authority, which look like sovereign power. But the answer requires fact-specific review.

What is the consequence of violating Section 53?
The opinion does not address consequences. Generally under Arkansas law, an officeholder who accepts an incompatible second office vacates the first (Byrd v. State, 240 Ark. 743 (1966)). For Section 53, that would imply the county elected position is forfeited. Other remedies may be available depending on the specific facts.

Are there federal offices that might be civil offices "in this state"?
The opinion does not analyze the federal/state question. By textual implication, Section 53 covers offices in Arkansas, not federal offices. But a federal position with state-law duties might warrant a fact-specific look.

Is this opinion binding on courts?
No. AG opinions are persuasive authority. They are advisory and not legally binding precedent (Op. Att'y Gen. disclaimer language). Courts apply the same legal framework but reach their own conclusions.

Source

• Landing page: 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