Can an Arkansas county election commission hire its own election coordinator without the county judge's approval?

Plain-English summary

The chairman of the Jefferson County Board of Election Commissioners (CBEC) asked the Arkansas Attorney General whether the board could contract directly for an election coordinator, and separately for seasonal extra help around election time, without going through the county judge. He reasoned that because CBEC members are themselves elected (by their respective party committees under Ark. Code Ann. § 7-4-102), they should fall within the statutory exception that lets "other elected officials of the county" hire their own staff.

In July 2017, AG Leslie Rutledge concluded the answer to both questions was no. Amendment 55 of the Arkansas Constitution and its enabling statute (Ark. Code Ann. § 14-14-1102) place contracting authority squarely in the county judge. The narrow exception for "other elected officials" applies only to the constitutional county officers whose salaries are set by the quorum court within statutory bands, that is, the sheriff, county collector, circuit clerk, county clerk, assessor, treasurer, coroner, and county surveyor (Ark. Code Ann. § 14-14-1204(a)). Election commissioners are not on that list, so they cannot bypass the county judge to hire an election coordinator or to bring on seasonal extra-help election clerks.

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: Why does the county judge, not the election commission, control election hiring under this opinion?
A: Amendment 55, § 3 of the Arkansas Constitution gives the county judge the power to "authorize and approve disbursement of appropriated county funds" and to "hire county employees, except those persons employed by other elected officials of the county." The implementing statute, Ark. Code Ann. § 14-14-1102, locates contracting and labor-purchasing authority in the county judge as the default. Anyone wanting to hire outside that channel needs to fit a specific statutory exception.

Q: Who counts as an "other elected official" who can hire their own staff?
A: The AG read § 14-14-1102's "other elected officials" exception together with Amendment 55, § 5 and Ark. Code Ann. § 14-14-1204, which sets compensation bands for named county officers. The result: only the constitutional officers listed in § 14-14-1204 (county judge, sheriff, county collector, circuit clerk, county clerk, assessor, treasurer, coroner, county surveyor) qualify. Election commissioners are not in that group.

Q: Election commissioners are technically elected. Why doesn't that count?
A: Because § 14-14-1102's exception is narrower than its plain language suggests. The AG read it together with Amendment 55, § 5 and the salary-setting statute (§ 14-14-1204) to cover only the county officers whose pay is fixed by the quorum court within statutory bands. CBEC members do not have their compensation set under that scheme.

Q: Can a county board of election commissioners hire seasonal poll workers?
A: According to the AG, no. The opinion treats hiring seasonal extra help (election clerks, judges, sheriffs at polling sites) as another contract for services that runs through the county judge. § 7-4-107 obligates the CBEC to ensure adequate poll worker staffing, but the AG read it as authorizing only assignment of personnel, not the hiring contract itself.

Q: Does the Union Cty. case let the CBEC contract on its own?
A: The AG specifically rejected that reading. Union Cty. v. Union Cty. Election Comm'n, 274 Ark. 286 (1981), held that the quorum court has authority to allocate money for elections so long as the amount is reasonable. It did not address who has hiring authority within the county. The AG noted that the case "is not dispositive."

Q: What if the quorum court has not yet appropriated election money?
A: The AG flagged this in a footnote: under Beaumont v. Adkisson, 267 Ark. 511 (1980) and Ark. Code Ann. § 14-20-106, a county judge cannot disburse county funds, even via contract, until the quorum court has appropriated them. So the CBEC's question presupposed that an appropriation existed; without it, no contract for an election coordinator could be funded at all.

Background and statutory framework

Amendment 55, ratified in 1974, restructured Arkansas county government. It gave the county judge the executive power over appropriated funds and over county employment, except where a separately elected officer has constitutional or statutory hiring power of their own. The General Assembly fleshed out that division in Ark. Code Ann. § 14-14-1102, locating in the county judge "the authority to enter into necessary contracts or other agreements to obligate county funds" and the "purchase of labor or services performed by individuals or firms by the county or an agency thereof for salaries, wages, insurance, or other forms of compensation." The same statute carved out the "other elected officials" exception that the chairman tried to invoke.

The AG read that exception narrowly, anchored to the salary structure in § 14-14-1204. Several earlier opinions of the office had taken the same position. The result is that even though Arkansas law moved (as of Act 1219 of 2013, codified in Ark. Code Ann. § 7-4-102) to having CBEC members chosen by their county party committees rather than appointed at large, that change in selection method did not alter the contracting hierarchy. CBECs remained dependent on the county judge to actually contract for the staff they manage.

For elected boards in this position, the practical implication was: ask the quorum court to appropriate sufficient funds, then ask the county judge to enter the necessary contracts on the board's behalf. The opinion does not foreclose those negotiations; it just says the CBEC cannot skip them.

Citations and references

Statutes and constitutional provisions:

• Ark. Const. amend. 55, § 3, county judge powers
• Ark. Const. amend. 55, § 5, county officer compensation set by quorum court
• Ark. Code Ann. § 14-14-1102, county judge powers and duties
• Ark. Code Ann. § 14-14-1204, compensation of named county officers
• Ark. Code Ann. § 14-14-907, appropriation ordinance procedure
• Ark. Code Ann. § 14-20-106, appropriation must precede contract
• Ark. Code Ann. § 7-4-102, county election commissioner selection
• Ark. Code Ann. § 7-4-107, election officials at polling sites
• Ark. Code Ann. § 7-1-101(11), definition of election official

Cases:

• Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980), county judge cannot disburse funds absent quorum court appropriation
• Union Cty. v. Union Cty. Election Comm'n, 274 Ark. 286, 623 S.W.2d 827 (1981), quorum court may allocate reasonable funds for elections (not addressing contracting authority)

Source

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

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked landing page is authoritative.

Opinion No. 2017-039
July 7, 2017

Michael J. Adam, Chairman
Jefferson County Board of Election Commissioners
[address redacted]
Pine Bluff, AR

Dear Mr. Adam:

I am writing in response to your request for an opinion concerning preparations for an upcoming school election. In this regard, you have posed the following questions:

1. Can the Jefferson County Board of Election Commissioners (CBEC) contract for an election coordinator to serve as their agent without the approval of the county judge? This will not be a regular county employee with benefits.

2. May a CBEC appoint extra help used only during limited parts of the year for the purpose of "assisting county election commissions in conducting elections" without involvement of a county judge? The person would be an appointed election clerk (official) paid hourly and used on an on-call as needed basis, not salaried, not a county employee.

Response

In my opinion, the answer to both of your questions is "no." The county judge enters contracts on behalf of the county; and the members of a county board of election commissioners do not fall within the exception for contracts of employment that applies to county elected officials.

Discussion

Question 1. Can the CBEC contract for an election coordinator to serve as their agent without the approval of the county judge?

The Arkansas Constitution empowers the county judge to "authorize and approve disbursement of appropriated county funds ...." Consistent with this constitutional provision, the General Assembly has vested the county judge with the authority to contract on behalf of the county:

The county judge shall have the authority to enter into necessary contracts or other agreements to obligate county funds and to approve expenditure of county funds appropriated therefor in the manner provided by law.

The General Assembly has further granted to the county judge the responsibility for "the purchase of labor or services performed by individuals or firms by the county or an agency thereof for salaries, wages, insurance, or other forms of compensation." In my opinion, this authority would also extend to contracting for the services of an election coordinator, assuming funds are appropriated by the Quorum Court for that purpose.

The county judge's exclusive authority to contract is subject, however, to certain statutory exceptions. One of those exceptions relates to employment contracts entered into by "other elected officials of the county":

The jurisdiction to purchase the labor of an individual for salary or wages by other elected officials of the county shall be vested in each respective elected official.

In presenting your question regarding the CBEC's authority to contract for the services of an election coordinator, you express a belief that, because CBEC members are now "elected," they are "other elected officials" under this exception to the county judge's authority to enter contracts of employment. However, CBEC members do not qualify as "other elected officials" for purposes of this exception. The "officials" to whom this exception applies are the county officers whose compensation is "fixed by the Quorum Court" as directed by Section 5 of Amendment 55. This reasonably follows from a reading of Amendment 55 as a whole, along with its enabling legislation.

Amendment 55, section 5, states in relevant part that the "[c]ompensation of each county officer shall be fixed by the Quorum Court within a minimum and maximum to be determined by law." The implementing "law" in this regard is Ark. Code Ann. § 14-14-1204, which establishes a salary range for the following officials: the county judge, the sheriff, the county collector, the circuit clerk; the county clerk; the assessor; the treasurer; the coroner; and the county surveyor.

Reading the two provisions together, it is clear that these are the "other elected officials of the county" that section 14-14-1102 refers to regarding the authority to "purchase the labor of an individual for salary or wages."

CBEC members plainly do not fall within this group, making this exception to the county judge's contracting authority inapplicable. It necessarily follows, in my opinion, that a CBEC cannot contract for an election coordinator without the county judge's approval.

Question 2. May a CBEC appoint extra help used only during limited parts of the year for the purpose of "assisting county election commissions in conducting elections" without involvement of a county judge?

I gather that this question contemplates the CBEC contracting for the services of such "extra help" for the purpose of assisting in conducting elections. Again, the exemption to the county judge's exclusive power to contract for services is inapplicable here.

A CBEC is responsible for ensuring that there are a "sufficient number of election officials" at each polling site:

... The county board [of election commissioners] shall appoint the requisite number of election officials at each [polling] site to ensure that there is a sufficient number of election officials at each site, based upon the votes in the immediately preceding comparable election.

An "election official" is defined as:

[A] person who is a member of the county board of election commissioners, a person who performs election coordinator duties, a person who is a poll worker designated by a county board of election commissioners to be an election clerk, election judge, or election sheriff, or a deputy county clerk or a person assigned by a county clerk to conduct early voting.

While this statute recognizes that there may be "a person who performs election coordinator duties," it merely states that such a person is within the class of "election officials" to be placed at the polling sites by the CBEC. It does not stand as authority for a CBEC to actually contract for such services. That authority, in my opinion, remains within the exclusive purview of the county judge, assuming the necessary funds have been appropriated.

Sincerely,

Leslie Rutledge
Attorney General