Can someone serve on an Arkansas school board if her community college salary is partly paid by a grant from the same school district?

Plain-English summary

Representative David Hillman described a situation in the Stuttgart School District. A woman ran unopposed for the school board in September 2017. She held a position at Phillips Community College that was funded by a two-year matching grant. The Stuttgart School District paid half her salary through that grant. The district said she was not a district employee; the community college said she was its employee.

Three questions: was she eligible to run, can she serve once elected, and can she keep the grant-funded salary while sitting on the board?

The AG addressed all three together. The bottom line: it was not necessarily improper to serve, but eligibility depended on facts the AG could not develop in an opinion. Two doctrines mattered.

First, Ark. Code Ann. § 6-13-616(b) bars an elected school board member from "employment in that same school district." The question was whether grant funding made her a district employee. The Arkansas Supreme Court has long used the right-of-control test for who is an employee. Just paying part of a salary is not enough on its own. S. Cent. Arkansas Drug Task Force v. Ray held that a task-force member whose position was federally grant-funded was a state employee, not a federal one, because he worked in a state-operated program. By analogy, a community college employee whose salary partly came from a school district grant might not be a district employee for school-board purposes. But the AG could not decide that; only a fact-finder could weigh the right-of-control factors.

Second, even if she was not technically a district employee, Arkansas's common-law incompatibility doctrine might still bar dual service. The doctrine prevents holding two offices when one is "subordinate to the other" or one office's holder has supervisory or audit authority over the other. The AG could not say without more facts whether the school board's authority over the community college position created such a conflict. Whether a district school board has any authority over a community college position is itself a statutory question; the AG noted nothing obvious in the statutes, but practice could create such a relationship.

The AG also pointed to the ethics rule against board members "contract[ing] with the public educational entity the member serves" if they have a direct or indirect interest, Ark. Code Ann. § 6-24-105. The grant didn't appear to be a contract with the board member, but if it were structured that way the rule could trigger.

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

Two state-law doctrines control school-board eligibility in this kind of case.

The first is statutory. Ark. Code Ann. § 6-13-616(b) bars an elected board member from employment in the same district. A more general statute, Ark. Code Ann. § 21-1-207, allows school district employees to run for elective office, but the Arkansas Supreme Court applies the more specific § 6-13-616 over the general rule when the office is the school board itself. Benton v. Gunter, 342 Ark. 543 (2000).

The second is the common-law incompatibility doctrine, recognized in Arkansas and applied to school-board cases. The classic statement is in Thompson v. Roberts, 333 Ark. 544 (1998): two offices are incompatible when one is "subordinate to the other" 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." Byrd v. State ex rel. Att'y Gen., 240 Ark. 743 (1966), held that the school board of one district and the county board of education are incompatible because the county board has supervisory authority over the district board.

For the employee question, the right-of-control test sets the framework. ConAgra Foods, Inc. v. Draper explained: "It is the right to control, not the actual control, that determines the relationship." Riddell Flying Service v. Callahan lists the relevant factors: a fixed-amount payment (rather than per-job), provision of space, tools, or staff, integration into the putative employer's regular business, and length of the relationship. Funding alone is not dispositive. The drug task-force case, S. Cent. Arkansas Drug Task Force v. Ray, made that point: the federal government bankrolled most of the cost, but the worker was a state employee because he worked in a state-run program.

The Arkansas court has, in different employment-classification cases (Steinert, Webb), held that the parties' own labels do not control. So the district saying "she's not our employee" was relevant evidence but not conclusive.

Common questions

Did Arkansas law allow a person whose salary partly came from a school-district grant to serve on that board? Probably, but it depended on whether the right-of-control test made her a district employee. If she was, § 6-13-616(b) would have barred her service. If she wasn't, she could potentially serve.

What's the right-of-control test?
A multi-factor test from Arkansas Supreme Court precedent: how the worker is paid, whether tools and space are provided, whether the work is integrated into the putative employer's regular business, and how long the relationship has lasted. The right to control matters more than actual day-to-day control.

Why didn't grant funding alone make her a district employee? Because Arkansas courts have repeatedly held that paying part of someone's salary doesn't automatically create an employment relationship. The drug task-force case is the clearest example: federal grant money paid most of the cost, but the worker remained a state employee.

What is the common-law incompatibility doctrine?
A judicial rule that bars one person from holding two government offices simultaneously when one is subordinate to or supervised by the other, or when one has audit authority over the other. The leading case for school-board incompatibility is Byrd v. State ex rel. Att'y Gen.

Could her election be challenged after the fact?
The opinion noted that Ark. Code Ann. § 7-5-207(b) authorizes voters and election commissioners to challenge a candidate's eligibility before the election. After the September 2017 election was over, those pre-election challenges were moot. But the substantive eligibility analysis still applies once she's serving.

Source

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

Original opinion text

STAT E O F ARKAN SAS
ATTORN EY G EN ERAL
LES LI E IZUTL EDGE

Opinion No. 2017-092

November 15, 2017

The Honorable David Hillman
State Representative
403 Essex Road
Almyra, AR 72003-8109

Dear Representative Hillman:

This is in response to your request for an opinion regarding a person's eligibility to serve on the Stuttgart School Board. You explain that in September of 2017, this person ran for the School Board unopposed. Before, during, and after the election, she held a position with Phillips Community College. The Community College position is "paid by a two year matching grant funded by the Stuttgart School District," such that the School District pays half of the person's salary. But you indicate the person is "employed by Phillips Community College," and that the School District does not consider her a "district employee."

You ask three questions, which I have slightly paraphrased:

1) Was the person eligible under Ark. Code Ann. § 6-13-616 to run for
membership on the School Board, given that half of her salary is paid from
a grant funded by the School District?

2) Can this person serve on the School Board once elected?

3) If this person can serve on the School Board, can she continue to be paid
half of her salary from the grant funded by the School District?

RESPONSE

Because each of your questions concerns the eligibility of a person to serve on the Stuttgart School Board, I can address them with a single response. In my opinion,

323 C ENTER STREET. SUI TE 200 · LIT TL E ROC K. ARKAN SAS 7220 1 TELE PH ONE (501) 682-200 7 · FAX (501) 682-8084 ARKAN SA SAG .GO V
The Honorable David Hillman
State Representative
Opinion No. 2017-092
Page 2

it i3 not necessarily improper for a member of (or a candidate for) a school district's governing board to hold a position funded by a grant from the district. In part, this is because school-board members are barr~d from being employed by the district they serve, and a position's source of funding is not always indicative of an employer-employee relationship. Instead, whether someone is an employee depends on a number of factors that must be investigated on a case-by-case basis. And the common-law doctrine of incompatibility, which bears on whether a person is eligible for service on a school board, likewise requires fact-intensive investigation. But I do not believe the incompatibility doctrine is violated simply because a school-board member holds a position partly funded by a grant originating with the district.

DISCUSSION

A conflict of interest can arise when a school-board candidate, or an elected board member, works in a separate capacity for the district that the board govems. 1 Arkansas statute makes clear that "[ n]o person who is elected to a school district board of directors shall be eligible for employment in that same school district." 2 And Arbmsas recognizes the common-law doctrine of incompatibility, developed 3 t.o prevent the ''attempt by one person to discharge the duties of [two] offices," \vhcre the fir3t office is subordinate to the second. The incompatibility doctrine has been applied to issues of school-board membership; in particular. 4

I will first analyze the statutory bar on "employment in that same school district." As a general matter, individuals employed by school districts arc eligible to run for

! See generally 78 C.J.S. Schools and School Districts § 130, Westlaw (database updated September 2017) ("[A] person may be ineligible to serve as a member of a county board of education by virtue of employment by that hoard, or another board, based on a potential conflict of interest."). 2 Ark. Code Ann.§ 6-13-616(b) (Rep!. 2013).
3
Thompson v. J<oherts, 333 Ark. 544, 549, 970 S.W.2d 239, 241 (1998) (internal cilation
omitted).
·
4
See Byrd v. State ex rel. Att'y Gen., 240 Ark. 743, 745, 402 S.W.2d 121, 123 (1966) ("It is obvious that a county board of education has a great deal of supervisory responsibility over a district school board, and these offices an.· clearly incompatib!c."); see ulso Op. Att'y Gen. 88- 178 (considering the potential conflict raised by an individual .:mployed as a teacher, who also attempted to serve as school-board director). The Honorable David Hillman State Representative Opinion No. 2017-092 Page 3

elective office. 5 But when the office in question is membership on a school board, the more specific statute barring school-district employment applies. 6 Thus, the question is whether the School District's grant, as a portion of the person's salary for her position at Phillips Community College,7 constitutes "employment" by the District that would affect her eligibility for the School Board. 8

The Arkansas Supreme Court has long recognized that a putative employer's ability to control a worker is the crucial element of the employment relationship. 9 Control may exist if the putative employer pays the worker a fixed amount, as opposed to paying by the job; if it furnishes the space and whatever tools or staff may be necessary for the work; if the work is an integral part of the putative employer's regular business; or if the putative employee has done the same work for a relatively long period of time. 10

3
See Ark. Code Ann. § 21-1-207 (Rep!. 2016) ("lN]o employee of the state, a county, a rnuni..::ipality, a school district, or any other political subdivision of this state shall be deprived of his or her right to run as a candidate for an elective office.").

C>See generally Benton v. Gunter, 342 Ark. 543, 546, 29 S.W.3d 719, 720-21 (2000) ("We have Jong held that a general statute must yield \Vhen there is a specific statute involving the particular subject matter.") (internal r,itations omitted). 7 Phillips Community College of the University of Arkansas is a two-year institution of higher learning with campuses in Stuttgart and DeWitt. See Ark. Code Ann. § J 9-5-303(p) (Rep!. 2016) (establishing the "Phillips Community College of the University of Arkansas Fund."). 8 You direct one of your questions to the person's eligibility as a candidate for Board. And in fact, "[n]o person's name shall be placed upon the ballot ... at any election unless the person is qualified and eligible at the time of filing .... " Ark. Code Ann.§ 7-5-207(b) (Supp. 2015). This subsection authorizes individuai voters, as well as the county hoard of election commissioners, to challenge a candidate's eligibility in court. See Clement v. Daniels, 366 Ark. 352, 235 S.W.3d 521 (2006); Jacobs v. Yates, 342 Ark. 243, 27 S.WJd 734 (2000). However, it appears the election for the Stuttgart School Board .took place in September of 2017, making any such pre- election challenge moot. And in all events, the standard for d('~ermining the eligibility of a school-board candidate is essentially the standard applied tJ that person once elected Th·-1t is, the issue is whether the person's district-fonded salary creates an impermissible confl:ct of interest with her service as ci board member. 9 See, e.g., ConAgru Foods, Inc. v. Draper, 372 Ark. 361, 366, 276 S.W.3d 244, 249 (2008) ("It is the right to control, not the actual control, that determines the rellltionship.") (internal citation omitted).
0
' See Riddell Flying Service v. Callahan, 90 Ark. App. 388, 392, 206 S.W.3J 284, 287-88 (2005) (listing these and .other common-law factors). The Honorable David Hillman State Representative Opinion No. 2017-092 Page 4

Payment of the worker's salary may be enough to establish an employment 11 relationship, although this too is a factor that must be evaluated in the overarching framework of control. 12 Arkansas courts have therefore hesitated to designate someone the employee of an entity that contributes a grant toward the person's salary. For example, despite evidence that·"most of the financing [for a position] comes from federal sources," the Arkansas Court of Appeals held that a member of a drug task force was not a federal employee. 13 The member was instead an employee of the state, since he "work[ ed] in a program operated by a state officer." 14

Here, the fact that the Stuttgart School District fonds part of the Board member's salary does not, in and of itself, mean she is employed by the District for purposes of school-board eligibility. 15 The source of funding for her salary must be
·weighed against other factors, most importantly whether the District has the right to control the Board member in her day-to-day capacity at the Community College. It may be that the District lacks this right of control. You indicate that the District does not consider the Board member its employee and that she is
;'employed by Phillips Community College." Although the District's designation of the Board mcmbe1· as a non-employee is not conclusive, 16 it may well be

11
See Op. Att'y Gen. 2016-125 (opining th·-it "[b]e.:::ause Poinsett County seems to compensate the library ~mployees, I beiieve they are. 'county employees' for purposes of AFERS b'-~nefits."). 12 Corter v. Ca.'.:.h, 312 Mk. 41, 847 S.W.2d 18 (1993); accord Op. Att'y Gen. 2001-202 ("Even if tlte city or c:ounty er some combination thereof pay[s]'the municipal comt clerk's salary, that fact does not condusively establish the clerk as an 'employe,~' of that entity."). 13 S. Cent. Arkansas Drug Task Force v. Ray, 56 Ark. App. 30, 937 S.W.2d 682, 683-84 (1997) (explaining that the task-force program was "funded by grant money ... provided hy the federal go'1ernmeat through a federal grant program," for which the state provided matching fond~). 14 Id. at 30, 937 S.W.2d at 684 (noting also that "the state provided health ar.d retirement benefits" to the task-force member, who wa3 "a police officer certified by the state."). 15 See Op. Att'y Gen. 2006-153 (considering the employment status of a school resource officer who was ostensibly an employee of the Mountain Home Police Department, but whose salary was paid in part by the Mountain Home School District). 16 See, e.g., Steinert v. Arkansas Workers' Comp. Comm'n, 2(109 Ark. App. 719 at 8, 361 S.W.3d ~58, 864 ('"The Commission considered the relevant factors ... and found that, despite the bbels £;iven by the parties, the truck drivers were employees ... .''). The Honorable David Hillman State Representative Opinion No. 2017-092 Page 5

reasonable, given that partial grant funding appears to be the sok connection betweetrthe District and the person's position at the Community College. 17

Ultimately, however, an in.dividual's status as an employee is a fact-intensive and circum~>tance-specific matter. And because I cannot act as a fact-finder in 18

response to an opinion request; 19 I cannot definitively opine as to whether the person you reference is ineligible, under section 6-13-616(b ), from serving on the School Board.

Likewise, the person's eligibility for school-board membership under· the common-law doctrine of incompatibility will de_rend on the "nature of the duties" 20 of her service on the School Board versus her work at Phillips Community College. The incompatibility doctrine prevents the conflicts of interest that arise "where one [position] is subordinate to the other, and subject in some dcgrF.:e 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.'' 21 The doctrine applies whether the holder of the positions "acts alon0 ... or as a member of a board or council," 22 so long as the "functions of the two (positions] arc inherently inconsistent or repugnant .... " 23 The Arkansas

Se~ text acc01npanying notes 10-13, supra. With respect to the School District's grant, I would 17

also note the ethical rule against board members "contract[ing] with the public educational entity the m~mber serves[,] if the board member has knowledge that he or she is directly or indirectly interested in the contract." Ark. Code Ann. § 6-24-105(a) (Supp. 2015). But based on the backgrc11nd information you supplied, I have no reason to believe the grant is representative of a contract between the School District and the School Board mem!Jer.

18
Webb v. Hot Springs Packing Co., 2013 Ark. App. 526, * 4 ("[D]etermining whether a person is an employee ... must be based on the particular facts of each case.") (internal citation omitted).

19
See, e.g., Op. Att'y Gen. 2016-073 (''[Y]our questions ... require factual determinations th~t are outside the scope of an Attorney General's opinion.").

w Thompson v. Roberts, 333 Ark. 544, 549, 970 S.W.2d 239, 241' (1998) (internal citation omitted).

21
Tappan v. Helena Fed. Sai•ings & Loan Ass'n, 193 Ark. 107,3, 1023, 104 S.W.2d 458, 459 (1917).

21
Rogers v. Sangster, 180 Ark. 907, 907, 23 S.W.2d 613, 614 (1930).
23
Thompson. 333 Ar~. at 549, 970 S.W.2d at 241 (internal ci.tc'tion om:tt~d).
The Honcrable David Hiilman
State Repr-:sentative
Opinion No. 2017-092
Page 6

Supreme Court has held that the incompatibility doctrine bars a person from simultaneously holding positions on the "School Board of Cotter School District
... and ... the Baxter County Board of Education." 24 And the Court found a "common sense" violation of the doctrine when a "bookkeeper for the city would to some degree be subject to the supervisory power of the mayor. " 25

However, I cannot analogize between these cases and the person' s eligibility for the Stuttgart School Board. The exact nature of the offices in question--school- board member and salaried community-college position-arc not definitively detailed, nor art:· the ways in which they might internet and overlap. It is unclear if the Community College position is somehow subordmate to the Stuttgart School Board, or if, on the other hand, the two are unrelated hut for the grant that partially funds the salary. Of course, shouid the School District exercise control of the Community College position sufficient to make the School Board m~mber a School District employee, then that control might equate to "supervisory power" impermissible under the incompatibility doctrine. And if the School Board member does not qua \i fy as an employee of the School District, the School Roard might nevertheless be authorized to set policy that affects Phillips Community College to such a degree as to make the positions "inherently inconsistent." That a district s~hool board would have this authority over a community college is questk)nable as s matter of statute. 26 Even so, a relationship involving this authority could conceivably exist in practice, which precludes me from offering a definitive response. 1 must therefore limit my . opinion to stating that the circumstances you describe do not necessarily indicate a violation of the incompatihilhy doctrine in such a way as tc make the person ind.ig ible for memb~rsb ip on the School Board.

S!ncerely, .

~ ·~
L ESLIE RUl 'LEDGE
Attorney General

24
Byrd v. State ex rel. A t(v Gen., 240 Ark. 743, 744, 402 S. W.2d 121, 122 (1966).
25
Thompson, JJ3 Ark. at 549, 970 S.W.2d &t 241.
16
E. g., Ark . Code Ann . § 16- 13-620(4) (Rcpt. 2013) ("The board of directors of each school di strict in the state is charged with the following powers .. . in order to provide no less than a general , suitable, and efficient system of free public schools: .. . Enact, enforce, and obey school district p olicies .. . .") (emphasis added}.