Can a county civil attorney in Arkansas serve simultaneously as an elected member of the Arkansas House of Representatives?

Plain-English summary

Representative Stephen Magie asked the AG whether a Faulkner County civil attorney could simultaneously serve as a state representative. The answer turned on a distinction that recurs throughout Arkansas dual-service law: is the county civil attorney an "office" or a job?

The AG concluded it was a job. The county civil attorney handles civil litigation for the county, advises county officials, and performs civil duties assigned by state law or local ordinance. None of those tasks involves the exercise of independent sovereign power. The position has no fixed term, no oath, no bond, no commission. It looks much more like public employment than a public office.

That distinction matters because Arkansas Constitution Article 5, § 7 bars anyone holding a "lucrative office under ... this State" from sitting in the General Assembly (with limited exceptions for militia officers, justices of the peace, postmasters, school officials, and notaries). If the county civil attorney is not an "office under this State," § 7 does not apply.

Three doctrines could have stood in the way:

1. Article 5, § 7's lucrative-office bar. No: not an office.
2. Article 4, §§ 1–2 separation of powers. No: that doctrine governs office-holding across legislative/executive/judicial branches, and a non-office is outside its reach. The Arkansas Supreme Court has also held the doctrine does not apply to offices held at different levels of government (Murphy v. Townsend, 72 Ark. 180 (1904)), so even if the position were an office, county-level employment would not collide with state legislative service.
3. Common-law incompatibility. No: there is no inherent oversight or supervisory conflict between drafting county pleadings and voting on state legislation.

The AG also noted: under Ark. Const. art. 5, § 11, each chamber of the General Assembly is the "sole judge" of the qualifications of its members. The AG's analysis was persuasive but not the final word.

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

Arkansas counties have two prosecutorial structures. Some counties rely on the elected prosecuting attorney (and deputy prosecutors) for both criminal and civil matters. Others have created a separate "office of civil attorney" under Ark. Code Ann. § 16-21-114, who handles civil work and advises county officials. Faulkner County had created such an office by ordinance.

Section 16-21-114(b)–(d) describes the duties: handle the county's civil actions, advise county officials on questions of civil law, and perform civil duties assigned to the prosecuting attorney by state law or local ordinance.

Section 16-21-114(f)(2) refers to "salaries and fringe benefits of a full-time county civil attorney," establishing that the position is salaried and therefore "lucrative" in the constitutional sense.

But the constitution's bar applies only if the role is also an "office under ... this State." That phrase has a specific meaning in Arkansas case law.

The AG's reasoning

The office-vs-employment distinction. The Arkansas Supreme Court has refused to draw a "precise line" between office and employment, but the relevant factors are well established (Martindale v. Honey, 259 Ark. 416 (1976)):

• Public office requires "sovereign powers [as] a necessary requisite" (Bean v. Humphrey, 223 Ark. 118 (1954)).
• Public employment is defined primarily by the "contract of hire."
• Officers usually have a fixed tenure, fixed compensation, and fixed duties prescribed by law (Maddox v. State, 220 Ark. 762 (1952)).
• Officers often take an oath, post a bond, or receive a formal commission.
• Officers exercise "decision-making power" (State Bd. of Workforce Educ. v. King, 336 Ark. 409 (1999)), not just advisory authority.

The AG ran each factor against § 16-21-114 and found the position falling short:

• The statute fixes neither tenure nor duration.
• It requires no commission, oath, or bond.
• The duties are advisory, not sovereign. The county attorney advises officials and litigates on the county's behalf; he does not, like a deputy prosecutor under § 16-21-113, file informations or prosecute on behalf of the State.
• The position has none of the indicia courts have used to identify offices like school director, deputy prosecuting attorney, election commissioner, mayor, or member of the parole board.

"Under this State." Even where a position is an office, it must be "under this State" to trigger § 7. The Court defined that phrase in Wood v. Miller, 154 Ark. 318 (1922): "under the laws of this State or by virtue of or in conformity with the authority conferred by the State as sovereign." Because the AG concluded the county civil attorney role was not an office at all, this part of the analysis was not dispositive, but the AG noted the Court has separately held that office-holding at different levels of government (e.g., county vs. state) does not trigger separation-of-powers concerns (Murphy v. Townsend, 72 Ark. 180 (1904)).

Statutory bars. Ark. Code Ann. §§ 21-1-402 and -403 prohibit state elected constitutional officers from accepting state employment or contracting with state agencies. But "state agency" under § 21-1-401(2) covers state government entities, not county government, so neither statute reaches the county civil attorney role.

Common-law incompatibility. Drawing on Tappan v. Helena Fed. Savings & Loan Assn., 193 Ark. 1023 (1937), and Thompson v. Roberts, 333 Ark. 544 (1998), the AG asked whether the two roles created the kind of structural conflict that no recusal can fix: "where the antagonism would result in the attempt by one person to discharge the duties of both offices, or where the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both." The AG found no such conflict between county civil work and state legislative service.

The General Assembly is the final judge. Ark. Const. art. 5, § 11 makes each chamber the "sole judge" of its members' qualifications, and State ex rel. Evans v. Wheatley, 197 Ark. 997 (1939), holds that "qualifications" includes "eligibility." Courts generally lack jurisdiction over these disputes. So the AG's analysis carries weight but cannot override a chamber's own determination if challenged on the floor.

Common questions

What was the difference between the county civil attorney and the deputy prosecuting attorney for this analysis?
Martindale v. Honey held that a deputy prosecuting attorney holds an office under Article 5 because deputy prosecutors can file informations and prosecute on behalf of the State, exercising sovereign power independent of the elected prosecutor. The county civil attorney has no such independent sovereign authority. He advises and litigates for the county.

Did the AG actually answer the second question (contract basis)? No. The AG concluded the dual service was permissible as employment, so the second question (whether converting to a contract basis would solve the problem) was moot.

Could the analysis differ in another county?
The AG's reasoning was tied to the duties prescribed by § 16-21-114 and the absence of commission/oath/bond. If a county's ordinance creating its civil attorney's office added formal indicia of office (a fixed term, an oath, a bond, sovereign-power duties), the analysis could come out differently. The AG examined the statute, not the Faulkner County ordinance specifically.

What does "lucrative" mean in Article 5, § 7?
The AG cited Op. Att'y Gen. 2002-328: "lucrative" refers to "compensation that goes beyond the mere recovery of expenses." A salaried role is lucrative. Per diem or expense-only roles generally are not.

Why mention Article 5, § 10?
Section 10 bars a sitting legislator from being appointed or elected to "any civil office under this State" during the term to which he was elected. The AG noted the test for "civil office under this State" in § 10 is essentially the same as the test for "office under ... this State" in § 7. Because the county civil attorney was not such an office, neither provision blocked dual service.

Source

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

Original opinion text

STATE O F ARKAN SAS
ATTORN EY G EN ERAL
LES Ll E RUTLED GE

Opinion No. 2017-077

September 25, 2017

The Honorable Stephen Magie
State Representative
P. 0. Box 1506
Conway, AR 72033-1506

Dear Representative Magie:

I am writing in response to your request for my opinion on the following questions concerning a county civil attorney:

1) Is a County Civil Attorney eligible to hold the office of State Representative simultaneously with his present office?

2) If the answer to the above question is negative, would the problem be solved by changing the County Attorney to a contract basis rather than holding the office?

Correspondence related to your request reports that the "Office of Faulkner County Civil Attorney" was created by ordinance pursuant to Ark. Code Ann. § 16-21-114, and that the issue at hand "is a matter of qualification and propriety of a county employee seeking election to the Arkansas House of Representatives, to potentially serve in that role simultaneously with his role as County Attorney."

RESPONSE

It is my opinion that a reviewing court would likely find no impediment to this dual service. The answer to your first question is therefore "yes," in my opinion, making a response to your second question unnecessary.

323 CENTER STREET. SU ITE 200 · LI TTLE RO C K. ARKAN SAS 7220 1 TELEPHONE (501) 682-2007 · FAX (50 1) 682-8084 ARKANSASAG .GOV
The Honorable Stephen Magie
State Representative
Opinion No. 2017-077
Page 2

DISCUSSION

Question 1: Is a county civil attorney eligible to hold the office of State Representative simultaneously with his present office?

At issue is whether the dual service you describe (county civil attorney and State Representative) is prohibited under a constitutional, statutory or common-law proscription (i.e., the common-law "doctrine of incompatibility" 1). There are three 2 categories of unlawful conflicts of interest that render dual service impermissible.

I. Constitutional Conflict

With respect to the constitutional inquiry, because the issue involves seeking election to the General Assembly, the provision most directly implicated is Article 5, section 7 of the Arkansas Constitution. With certain exceptions, this provision renders persons holding any "lucrative office under ... this State" ineligible to a seat in the General Assembly:

No ... person holding any lucrative office under the United States or this State (militia officers, justices of the peace, postmaster, officers of public schools and notaries excepted), shall be eligible to a seat in either house of the General Assembly. 3

On its face, this provision bars an individual from running for the legislature if he holds another position that is (1) "lucrative," (2) an "office under ... this State," and (3) that does not fall within the listed exceptions.

The position of county civil attorney is not one of the enumerated, excluded positions in Article 5, section 7. The question thus becomes whether it falls within the definition of a "lucrative office" under the general language of the provision. It is clear from a review of the relevant statute addressing the "office of civil attorney" 4 that the position of county attorney in a county that has established such

1
See Byrdv. State, 240 Ark. 743, 402 S.W.2d 121 (1966).
2
Id.
3
Ark. Const. art. 5, § 7 (Repl. 2004).
4
Ark. Code Ann.§ 16-21-114(d) (Repl. 1999) (addressing the duties of the county attorney "in those counties which have established the office of civil attorney."). The Honorable Stephen Magie State Representative Opinion No. 2017-077 Page 3

an office is lucrative, as it is salaried. 5 The question therefore turns to whether the county attorney in a county that has established a "full-time office of county civil attorney" holds an "office under ... this State." (Emphasis added).

The Arkansas Supreme Court applies a multi-factored test to evaluate whether an individual holds a public office. This task tends to be fact-dependent, and the Court has "refrained from framing an inflexible definition or drawing a precise line" with respect to which positions qualify as public offices. 7 The general governing principles are nevertheless well established. Essentially, Arkansas law contrasts public office with public employment. The former includes "sovereign powers [as] a necessary requisite," 8 whereas the latter is defined primarily by the "contract[] of hire." 9 In addition to exercising the sovereign power, a public officer's "tenure of office, his compensation, and his duties are usually fixed by law." 10 Other properties tipping the balance toward public office are "receipt of a formal commission and the giving of a bond" in connection with assuming the duties of the position. 11 "[N]o single factor is ever conclusive" when determining whether a position qualifies as a public office, but public emplolment is notable "in that some or all of these characteristics are lacking." 1 Additionally, "investment of sovereign powers in the incumbent is one of the more important, if not the most important, criteria of public office." 13 Case law has also recognized

5
Id. at § 16-21-114(f)(2) (requiring taxing units in a county with a "full-time office of county civil attorney" to reimburse the county for legal costs, including "[a] percentage of the salaries and fringe benefits of a full-time county civil attorney .... "). Accord Op. Att'y Gen. 2002-328 (noting that the term "lucrative," based on its plain meaning, refers to "compensation that goes beyond the mere recovery of expenses."). See also Ops. Att'y Gen. 93-432 (noting that a position was lucrative because it was salaried), 91-314 (same). 6 See generally Martindale v. Honey, 259 Ark. 416, 533 S.W.2d 198 (1976).
7
Id. at 418, 533 S.W.2d at 199 (citations omitted).
8
Bean v. Humphrey, 223 Ark. 118, 124, 264 S.W.2d 607, 610 (1954).
9
Martindale, 259 Ark. at 419, 533 S.W.2d at 199.
10
Maddox v. State, 220 Ark. 762, 763, 249 S.W.2d 972, 972 (1952).
11
Id. at 763-64, 249 S.W.2d at 972-73.
12
Id. at 763, 249 S.W.2d at 974.
13
Martindale, 259 Ark. at 422, 533 S.W.2d at 201 (internal citation omitted).
The Honorable Stephen Magie
State Representative
Opinion No. 2017-077
Page 4

that public officers are imbued with decision-making power, and not simply the ability to advise. 14

Positions that are considered public offices, according to case law, include deputy prosecuting attorney, 15 school director, 16 member of state board of pardons and paroles, 17 county election commissioner, 18 member of state sovereignty ° commission, 19 and mayor. 2 Cases addressing these examples were decided under Article 5, section 10 of the Arkansas Constitution, which, like Article 5, section 7, refers to "offices," but which applies to persons who are already members of the General Assembly and who are later appointed or elected to another office "under this State." 21

With regard to the words "under this State," the Court has offered the following definition:

14
See State Bd. of Workforce Educ. & Career Opportunities v. King, 336 Ark. 409, 418, 985 S.W.2d 731, 735 (1999). 15 Martindale, supra.
16
Williams v. Douglas, 251 Ark. 555, 473 S.W.2d 896 (1971).
17
Starnes v. Sadler, 237 Ark. 325, 372 S.W.2d 585 (1963).
18
Jones v. Duckett, 234 Ark. 990, 356 S.W.2d 5 (1962).
19
Smith v. Faubus, 230 Ark. 831, 327 S.W.2d 562 (1959).
2
°Collins v. McClendon, 177 Ark. 44, 5 S. W.2d 734 (1928). 21 Article 5, section 10 states: "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." I believe the test for an "office under ... this State" (Article 5, section 7) is essentially the same as the test for a "civil office under this State" (Article 5, section 10). In Williams v. Douglas, supra note 16, the Arkansas Supreme Court described the difference between Article 5, section 7 and Article 5, section 10, explaining that Article 5, section 10 addresses the eligibility of persons already seated as state legislators to be elected (or appointed) to other civil offices, whereas Article 5, section 7 addresses the eligibility of persons previously holding other lucrative offices to be seated in the state legislature. The Court noted that there is no apparent conflict between these constitutional provisions "when Art. 5 § 7 is read with reference to the eligibility of persons entitled to a seat in the General Assembly and ... Art. 5 § 10 is read as a prohibition upon a member after he is seated .... "). Douglas, 251 Ark. at 558, 473 S.W.2d at 898. The Honorable Stephen Magie State Representative Opinion No. 2017-077 Page 5

The words "under this State," as used in the Constitution, mean under the laws of this State or by virtue of or in conformity with the authority conferred by the State as sovereign. It embraces all offices created by the laws of the State as contradistinguished from other authority. 22

On the basis of the above explanation of the phrase "office under ... this State" in Article 5, section 7, it is my conclusion that the position of county attorney (in a county that has established the "office of civil attorney" pursuant to Ark. Code Ann. § 16-21-114) does not qualify as an "office." Although section 16-21-114 refers in varying terminology to the "office" of county attorney, it does not prescribe the necessary conditions of office-holding identified above. It does not fix a tenure or duration of office for the county attorney position. Nor does it require any commission or oath of office or bond. And perhaps most importantly, it does not invest the county attorney with any independent sovereign authority. 23 The "civil duties" assigned to the county attorney appear instead to be advisory in nature. 24

Because the position lacks some of the essential characteristics of a public office, it is my opinion that a county attorney in a county that has established the office of county civil attorney is not constitutionally prohibited from seeking or holding office as a member of the General Assembly. 2

22
Wood v. Miller, 154 Ark. 318, 322-23, 242 S. W. 573, 575 (1922) (citations omitted).
23
Cf Ark. Code Ann. § 16-21-113(c), (d) (authorizing deputy prosecuting attorney to "file an information . . . in the name of the prosecutor" and "prosecute on behalf of the state . . . when so requested .... "). See Martindale, supra note 6 (concluding that a legislator held the office of deputy prosecuting attorney in violation of Ark. Const. art. 5, § 10, emphasizing the deputy prosecutor's ability to exercise power independent of the principal). 24 The county attorney handles the county's "civil actions," advises county officials on "any question of civil law concerning the county," and performs civil duties assigned to the prosecuting attorney by either state law or local ordinance. Ark. Code Ann. § 16-21-114(b)-(d). There is no indication that any of these duties invo Ive the exercise of sovereign power. 25 As noted above, Article 5, section 7 addresses the eligibility to a seat in the General Assembly of one who holds a "lucrative office" and Article 5, section 10 addresses the eligibility of a member (after he is seated) to hold another "civil office." See note 21, supra. In my opinion, the county attorney position in question is not a "civil office" in much the same way as it is not a "lucrative office." Accordingly, it is my opinion that Article 5, section 10 would not prohibit the county attorney's reappointment while continuing to serve as a legislator. The Honorable Stephen Magie State Representative Opinion No. 2017-077 Page 6

Finally, in addressing a possible constitutional conflict, some consideration must be given to the "separation-of-powers doctrine" embodied at Article 4, sections 1 and 2 of the Arkansas Constitution:

The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another. 26

No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted. 27

These provisions have been construed as a prohibition against certain types of dual office holding, including dual office holding by legislators. 28 I believe the doctrine is restricted to the holding of two "offices." 29 Having concluded that the position of county attorney at issue under your question is not an office, it is my opinion that the separation-of-powers doctrine does not prohibit one's dual service as county attorney and legislator. 30

As a final note regarding Article 5, section 7, it must be recognized that the eligibility of anyone to take a seat in the General Assembly is ultimately a matter for the General Assembly itself. Ark. Const. art. 5, § 11 (making each house of the General Assembly the "sole judge" of the qualifications of its members). See Irby v. Barrett, 204 Ark. 682, 163 S.W.2d 512 (1942) (state senate is the sole judge of eligibility of state senate candidate to take a seat if elected); State ex rel. Evans v. Wheatley, 197 Ark. 997, 1001, 125 S.W.2d 101, 102 (1939) (the word "qualifications" in Ark. Const. art. 5, § 11 held to embrace the word "eligibility"). Accord Op. Att'y Gen. 97-364 (the relevant house of the General Assembly is the sole judge of a person's eligibility under Ark. Const. art. 5, § 7). And the courts generally do not have jurisdiction of such controversies. See Wheatley, supra. 26 Ark. Const. art. 4, § 1.
27
Id at§ 2.
28
See, e.g., State Bd of Workforce Educ. v. King, supra note 14, and Starnes v. Sadler, supra note 17. 29 Accord Ops. Att'y Gen. 2009-101, 2003-13 8, 92-050. 30 It may also bear noting that the Arkansas Supreme Court has made it clear that the separation- of-powers doctrine does not apply to offices held at different levels of government. Murphy v. Townsend, 72 Ark. 180, 79 S. W. 782 (1904). Thus, even if the county attorney is deemed an The Honorable Stephen Magie State Representative Opinion No. 2017-077 Page 7

II. Statutory Conflict

With respect to any possible statutory proscription against the proposed dual service, I am unaware of any legislative act precluding one's simultaneous service as county attorney and state legislator. One statute, with certain exceptions, prohibits state elected constitutional officers from accepting state employment after election and during their terms of office. 31 And another constrains or prohibits these elected officers from contracting with state government offices. 32 But these proscriptions apply to employment by, or contracts with, "state agencies," defined as "every board, commission, department, division, institution, and other office of state government. ... " 33 They do not extend to employment by, or contracts with, county government.

III. Common-Law Doctrine of Incompatibility

The common-law doctrine of incompatibility applies when the holding of two occupations simultaneously would generate an inherent conflict that necessarily precludes one person serving in both capacities. As described by the Arkansas Supreme Court, the "inconsistency, which at common law makes offices incompatible" exists in situations when "one is subordinate to the other, and subject in some degree to the supervisory power of its incumbent, or where the incumbent of one office has the power to remove the incumbent of the other or to audit the accounts of the other." 34 The Court has further expounded upon the incompatibility doctrine by observing:

One commentator has explained, "Incompatibility arises, therefore, from the nature of the duties of the offices, when there is an inconsistency in the functions of the two, where the functions of the two are inherently inconsistent or repugnant, as where the

office-holder, separation of powers cannot serve as a basis to challenge one's dual service in that county position and as state legislator. 31 Ark. Code Ann.§ 21-1-402(a)(l) (Rep!. 2016).
32
Ark. Code Ann. § 21-1-403 (Rep!. 2016).
33
Ark. Code Ann. § 21-1-401 (2) (Rep!. 2016) (defining "state agency").
34
Tappan v. Helena Fed. Savings & Loan Assn., 193 Ark. 1023, 1024, 103 S.W.2d 458, 459 (1937). The Honorable Stephen Magie State Representative Opinion No. 2017-077 Page 8

antagonism would result in the attempt by one person to discharge the duties of both offices, or where the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both." 35

Notwithstanding the term "offices" in these excerpts, the Court in Thompson held that the dual service of a mayor as part-time bookkeeper for a city of the second class violates the doctrine of incompatibility. 36 Thus, while it is probably accurate to say the doctrine ordinarily applies to the concurrent holding of two offices, I have previously opined that it can apply as well to the simultaneous holding of an office and a public employment. 37

In my opinion, there is no inherent conflict under this standard between the county attorney position at issue and service in the General Assembly. There is neither any apparent oversight nor any other apparent conflict between fulfilling the two positions. It is therefore my opinion that one person's dual service as county attorney and state legislator would not be barred by the common-law incompatibility doctrine.

CONCLUSION

It is my conclusion, based on the foregoing analysis, that a county attorney in a county with an office of county civil attorney is not prohibited from seeking or holding the office of State Representative. The answer to your first question is therefore "yes," in my opinion. Your second question is moot in light of this response.

Sincerely,
~ /ft--
LESLIE RUTLED~
Attorney General

35
Thompson v. Roberts, 333 Ark. 544, 549, 970 S.W.2d 239, 241 (1998) (quoting Eugene McQuillin, 3 The Law of Municipal Corporations, § 12.67 (3d ed. 1990)). 36 Id; see also Davis v. Doyle, 230 Ark. 421, 434 S.W.2d 202 (1959) (mayor also serving as manager of the municipal water and sewer system). 37 Ops. Att'y Gen. 2016-106, 2015-076.