Do Arkansas housing authority and urban renewal agency commissioners have to live in the area their agency serves?

Plain-English summary

State Representative Vivian L. Flowers asked the AG whether commissioners of Arkansas housing authorities and urban renewal agencies have to live in the area their agency serves. AG Leslie Rutledge said yes.

The reasoning has two steps. First, these commissioners hold a "civil office" under Arkansas constitutional law: their tenure, powers, and duties are fixed by statute, they exercise sovereign powers (including eminent domain), and they receive at least nominal compensation. Second, Article 19, section 3 of the Arkansas Constitution provides that no one may be appointed to fill an office unless they possess the qualifications of an elector, which the Arkansas Supreme Court has interpreted to require residence in the political subdivision served by the office.

That left a question: what is the "political subdivision to be served"? The city or county that authorized the agency, or the agency itself? AG Rutledge concluded the agency itself is the relevant political subdivision, because housing authorities and urban renewal agencies operate "separately and apart" from the cities or counties that approve their formation. The Arkansas Supreme Court has treated housing authorities as agents of the state with their own corporate identity (City of Ft. Smith v. Hous. Auth. of City of Ft. Smith, 256 Ark. 254). So the residency requirement is keyed to the agency's area of operation, not the host city or county.

For housing authority commissioners, that means residence in the housing authority's defined area of operation (Ark. Code Ann. § 14-169-203(8)) or any additional area where the authority is authorized to undertake a project. For urban renewal commissioners, it means residence in the city or town for which the agency was created.

Currency note

This opinion was issued in 2018 (covering a 2017 opinion request). 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

What is a housing authority's "area of operation"?

It is statutorily defined in Ark. Code Ann. § 14-169-203(8) based on the city's population and territorial boundaries (for city housing authorities) or the county's territorial boundaries (for county housing authorities). A housing authority may also operate in additional areas (other counties, multiple cities) where authorized.

Why is a housing authority commissioner an "officer" rather than just an employee?

Because they exercise sovereign power. Housing authority commissioners can issue bonds, exercise eminent domain, conduct hearings, make regulations, and acquire property. The Arkansas Supreme Court has held that "a grant and possession of the sovereign power" is a key factor signifying a civil office. Authority commissioners qualify.

Why is the residency rule different for urban renewal agencies?

Urban renewal agencies in Arkansas are created at the municipal level (cities of the first class, second class, or incorporated towns). Their governing statute (Ark. Code Ann. § 14-169-709) does not give them an "area of operation" outside the city. So an urban renewal commissioner's residency is tied to the city itself.

Can a city or county appoint commissioners from outside the area of operation?

There is one exception built into the housing authority statute: Ark. Code Ann. § 14-169-103 explicitly allows appointment of commissioners from "any additional area where the housing authority is authorized to undertake a housing project." So commissioners can come from areas the authority is authorized to serve, even if those areas are outside the original area of operation. But the residency must be tied to the served area, not just the host city.

What happens if a non-resident is appointed?

Under Article 19, section 3, the appointment is invalid because the appointee does not possess the qualifications of an elector for the political subdivision. The remedies typically run through quo warranto or other office-eligibility challenges in court.

Background and statutory framework

Arkansas's two relevant constitutional provisions:

• Ark. Const. art. 19, § 3: No one may be elected or appointed to fill an office without possessing the qualifications of an elector. The Arkansas Supreme Court reads this to require residence in the political subdivision served (Davis v. Holt).
• Ark. Const. art. 19, § 4: Civil officers for the State at large must reside in the State; district, county, and township officers must reside in their respective districts, counties, and townships. The AG concluded this provision does not apply to housing authority/urban renewal commissioners because they are not state, district, county, or township officers.

The court-developed test for what counts as a civil office:

• The duty is continuing and defined by government rules, not by contract (Lucas v. Futrall).
• The officer "ordinarily exercises some part of the State's sovereign power" (Maddox v. State).
• Tenure, compensation, and duties are usually fixed by law.

The court-developed treatment of housing authorities:

• They are "agents of the state" exercising police power (City of Ft. Smith v. Hous. Auth. of City of Ft. Smith).
• They are political subdivisions in their own right (Dermott Special Sch. Dist. v. Johnson analogy).

Citations

• Ark. Const. art. 19, § 3 (qualified-elector requirement for officeholders)
• Ark. Const. art. 19, § 4 (state, district, county, township residency)
• Ark. Code Ann. § 14-169-103, -104 (housing authority general powers)
• Ark. Code Ann. § 14-169-203(8) (housing authority area of operation)
• Ark. Code Ann. § 14-169-207, -208 (housing authority commissioners)
• Ark. Code Ann. § 14-169-210 (housing authority commissioner removal)
• Ark. Code Ann. § 14-169-211, -212, -213 (housing authority powers)
• Ark. Code Ann. § 14-169-708, -709, -710, -711 (urban renewal agency)
• Davis v. Holt, 304 Ark. 619, 804 S.W.2d 362 (1991)
• Charisse v. Eldred, 252 Ark. 101, 477 S.W.2d 480 (1972)
• Thomas v. Sitton, 213 Ark. 816, 212 S.W.2d 710 (1948)
• McClendon v. Board of Health of City of Hot Springs, 141 Ark. 114, 216 S.W. 289 (1919)
• Lucas v. Futrall, 84 Ark. 540, 106 S.W. 667 (1907)
• Maddox v. State, 220 Ark. 762, 249 S.W.2d 972 (1952)
• Benton v. Gunter, 342 Ark. 543, 29 S.W.3d 719 (2000)
• City of Ft. Smith v. Hous. Auth. of City of Ft. Smith, 256 Ark. 254, 506 S.W.2d 534
• State Bd. of Workforce Educ. & Career Opportunities v. King, 336 Ark. 409, 985 S.W.2d 731 (1999)
• Dermott Special Sch. Dist. v. Johnson, 343 Ark. 90, 32 S.W.3d 477 (2000)

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORN EY GENERAL
LESLIE RUTLEDGE
Opinion No. 2017-096
March 27, 2018
The Honorable Vivian L. Flowers
State Representative
P. 0. Box 3156
Pine Bluff, AR 71611-3156
Dear Representative Flowers:
This is in response to your request for an opm1on on the following question concerning commissioners of housing authorities and urban renewal agencies: Is there any residency requirement for commissioners of housing authorities and urban renewal agencies? RESPONSE Yes. The commissioners must reside within the area where the housing authority or urban renewal agency is authorized to exercise its powers. DISCUSSION Your question is governed by Article 19, section 3 of the Arkansas Constitution, which provides that no individual may be elected or appointed to an office "who does not possess the qualifications of an elector": No persons shall be elected to or appointed to fill a vacancy in any office who does not possess the qualifications of an elector. 1 1 Ark. Const. art.19, § 3. Although this provision refers to the filling of "vacancies," it has consistently been applied in cases of elective and appointive offices, and to the filling of vacancies therein. See, e.g., Davis v. Holt, 304 Ark. 619, 804 S.W.2d 362 (1991); Charisse v. Eldred, 252 Ark. 101, 477 S.W.2d 480 (1972); Thomas v. Sitton, 213 Ark. 816, 212 S.W.2d 710 323 CENTER STREET. SU ITE 200 · LITTLE ROCK. ARKANSAS 7220 1 TELEPHONE (501) 682-2007 · FAX (50 I) 682-8084 ARKANSASAG.GOV The Honorable Vivian L. Flowers State Representative Opinion No. 2017-096 Page 2 At issue initially is whether a comm1ss10ner of a housing authority or urban renewal area holds an "office." The answer to that question is plainly "yes." While the Arkansas Supreme Court has declined to establish any hard and fast rules with regard to the nature of an "office," 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 "2 It has likewise outlined several characteristics of a "public officer": A public officer ordinarily exercises some part of the State's sovereign power. His tenure of office, his compensation, and his duties are usually fixed by law. The taking of an oath of office, the receipt of a formal commission, and the giving of a bond all indicate that a public office is involved, although no single factor is ever inclusive. 3 Based on these factors, it is my opmton that comm1ss1oners of both housing authorities and urban renewal agencies hold an "office." While the governing provisions do not require either housing authority or urban renewal commissioners to take an oath of office, the provisions do explicitly define both types of commissioners' tenure of office, fix their powers and duties,5 and address the (1948); McClendon v. Board of Health of City of Hot Springs, 141 Ark. 114, 216 S.W. 289 (1919). See also Ops. Att'y Gen. 2007-055, 2003-056, 2001-039, 98-041, 92-112, 91-383. 2Lucas v. Futral/, 84 Ark. 540, 547, 106 S.W. 667, 669 (1907). 3Maddox v. State, 220 Ark. 762, 763-64, 249 S.W.2d 972 (1952); see also Ops. Att'y Gen. 2017- 028, 2004-312, 2003-056. 4Ark. Code Ann. §§ 14-169-208(c)(2)(A) (Repl. 1998) and 14-169-710(b) (Repl. 1998) (establishing five-year terms for both housing authority and urban renewal commissioners). 5See § 14-169-104 (Repl. 1998) (referring to a housing authority's exercise of its powers "for the purpose of planning, undertaking, financing, constructing, and operating housing projects ... "); Ark. Code Ann. § 14-169-211-213 (Rep I. 1998) (declaring a housing authority a "public body corporate and politic, exercising exclusively public and essential governmental functions and having all the powers necessary or convenient to carry out and effectuate the purposes and provisions of this subchapter ... [,]" and vesting a housing authority with various specific powers, including the power to conduct hearings, make regulations, issue bonds, and acquire property through eminent domain); Ark. Code Ann. §§ 14-169-708, -801, -802 (Rep I. 1998) (providing for The Honorable Vivian L. Flowers State Representative Opinion No. 2017-096 Page 3 issue of salary.6 Perhaps most significant is the fact that the commissioners' powers and duties plainly involve the exercise of sovereign powers. As the Court has stated, "a grant and f ossession of the sovereign power" is a key factor signifying a "civil office." Once it is established that a position is an "office," the inquiry turns to Article 19, section 3 's requirement that appointees possess the "qualifications of an elector."8 This so-called "qualified-elector" requirement normally entails residence in a particular locale. More particularly, the Arkansas Supreme Court has interpreted Article 19, section 3 to "require residence in the political subdivision to be served" by the officer.9 Accordingly, and in response to your general question, there is a residency requirement for commissioners of housing authorities and urban renewal agencies. I feel it is important to recognize that there may be a remaining question regarding the relevant "political subdivision to be served" in the case of these comm1ss1oners. Specifically, the question arises whether the relevant political an urban renewal agency's exercise of the same powers as a housing authority, and addressing an urban renewal agency's specific powers, which include the power of eminent domain). 6 Ark. Code Ann. § 14-169-208( e) (Housing authority commissioners "may receive reasonable compensation for [their] services, not to exceed three hundred ($300) per year," and are entitled to "necessary expenses, including traveling expenses, incurred in the discharge of [their] duties."); Ark. Code Ann. § 14-169-710( e) (Urban renewal commissioners may "receive no compensation for [their] services but shall be entitled to the necessary expenses, including travel expenses, incurred in the discharge of their duties."). 1State Ed. of Workforce Educ. & Career Opportunities v. King, 336 Ark. 409, 416, 985 S.W.2d 731, 734 (1999) (citing State v. Spaulding, 72 N. W. 288 (Iowa 1897) ). 8 Another constitutional provision requires that "[a]ll civil officers for the State at large shall reside within the State, and all district, county and township officers within their respective districts, counties, and townships .... " Ark. Const. art.19, § 4. In my opinion, commissioners of housing authorities and urban renewal agencies are neither State, district, county, nor township officers. Accordingly, I believe Article 19, section 3 is the relevant constitutional provision. 9Holt, supra note I, 304 Ark. at 623, 804 S.W.2d at 364 (requiring that a school board director be a resident of the school district). See also Benton v. Gunter, 342 Ark. 543, 29 S.W.3d 719 (2000) (Glaze, J. concurring) (municipal judge must be resident of the city); Charisse v. Eldred, 252 Ark. 101, 4 77 S. W.2d 480 ( 1972) (same regarding city alderman); Sitton, supra note 1, 213 Ark. 816, 212 S.W.2d 710 (1948) (city marshal); McClendon v. Board of Health of City of Hot Springs, 141Ark. 114, 216 S.W. 289 (1919) (city manager). See also Ops. Att'y Gen. 2012-122, 2007-

302. The Honorable Vivian L. Flowers
     State Representative
     Opinion No. 2017-096
     Page 4
     subdivision (for purposes of Article 19, section 3 's qualified-elector requirement) is the city or county for which the housing authority or urban renewal agency is established, as opposed to the housing authority or urban renewal agency itself. Housing authorities are created "in each city and county of the state."10 A housing authority cannot function until the governing body of the city or county, as the case may be, declares there is a need for such an authority-at which goint the mayor or the county governing body appoints the initial commissioners. 1 Urban renewal agencies are created "in each municipality in this state, where on January 10, 1961, a housing authority has not been established or a housing authority is established but the housing authority has not undertaken an urban renewal project .... "12 And similar to housing authorities, urban renewal agencies cannot function until the city or town resolves that there is a need for rehabilitating, conserving, or redeveloping one or more deteriorating areas-at which point the mayor appoints the initial board of commissioners.13 The role of the city or county in authorizing a housing authority or urban renewal agency to function might suggest that the city or the county is the "political subdivision to be served,"14 for purposes of Article 19, section 3 's residency requirement as applied to these commissioners. That would mean that housing authority commissioners must reside in the relevant city or county, as the case may be; and urban renewal agency commissioners must reside in the relevant city. As further support for this view, successor commissioners of both housing authorities and urban renewal agencies are appointed by the remaining commissioners, subject to confirmation by either the city or county governing body.15 And 10Ark. Code Ann.§ 14-169-207(a)(l) (Supp. 2017). 11Jd. at§§ 14-169-207(a)(2), -208(a)(2) (Rep!. 1998). 12 Ark. Code Ann.§ 14-169-709(a)(l) (Supp. 2017). "Municipality" here means a city of the first class, a city of the second class, or an incorporated town. Id. at § 14-169-702(3) (Supp. 2017). 13/d. at§§ 14-169-709(b), -710(a)(l). 14Holt, 304 Ark. at 623, 804 S.W.2d at 364. 15 Ark. Code Ann. § § 14-169-208( c )(2)(B)(i) and 14-169-71 O(b )(2). The Honorable Vivian L. Flowers State Representative Opinion No. 2017-096 Page 5 commissioners of both entities are subject to removal, on certain grounds, by the city or county governing body.16 But the Court has observed that a housing authority is an "agent of the state," created "separate and apart" from the city or county: A Housing Authority is an agent of the state dealing with public health standards and falls squarely within the traditional police powers of the state .... Although a Housing Authority is authorized in a municipality (as well as in a county or by combinations), the benefit of its existence obviously spreads past the city (or county) .... A city Housing Authority constitutes a public body corporate and politic exercising essential governmental functions, having perpetual succession, the power to sue and be sued, to enter into contracts in exercise of its powers, to exercise the power of eminent domain, to cooperate with the city, the county, the State or any political subdivision thereof in action taken' within the scope of its primary functions. It is in essence a separate Authority created to cooperate with the city or county as the case may be. Even when the power of appointment of Housing Authority members is vested in city officials (here the city is given the veto power as to each appointment), it has been held that however intimate the connection between the city and the authority may be, the latter is created for the performance of a state {unction, separate and apart from the municipality in which it exists. 1 16 Ark. Code Ann.§§ 14-169-210(a) (Repl. 1998) and 14-169-71 l(a)(l) (Repl. 1998) (providing that the city or county governing body, as the case may be, may remove a commissioner "for inefficiency or neglect of duty or misconduct in office.") 17City of Ft. Smith v. Haus. Auth. of City of Ft. Smith, 256 Ark. 254, 258-59, 506 S.W.2d 534, 536-37 (emphasis added; internal citation omitted). See also Ark. La. Gas Co. v. City of Little Rock, 256 Ark. 112, 114, 506 S.W.2d 555, 557 (1974) (noting that housing authorities are "separate and independent bodies corporate" and that "the statutes demonstrate that the housing authorities are autonomous entities that have the power to act in every field related to their work independently of the cities."); L. C. Eddy, Inc. v. City of Arkadelphia, 303 F.2d 473, 475-76 (8th Cir. 1962) (characterizing the Housing Authorities Act as endowing a housing authority "with all the attributes of a municipal corporation."). The Honorable Vivian L. Flowers State Representative Opinion No. 2017-096 Page 6 I believe it is clear from the foregoing that a housing authority falls within the following definition of a "political subdivision" adopted by the Court:
     [P]olitical subdivisions have been defined as that 'they embrace a certain territory and its inhabitants, organized for the public advantage, and not in the interest of particular individuals or classes; that their chief design is the exercise of governmental functions; and that to the electors residing within each is, to some extent, committed the power of local government, to be wielded mediately or immediately within their territory for the peculiar benefit of the people there residing.18 I believe the same is true of an urban renewal agency, which shares all the attributes of a housing authority.19 If faced with the question, therefore, I believe the Court would conclude that the housing authority or the urban renewal agency is the relevant political subdivision for purposes of the qualified-elector requirement under Article 19, section 3. These are the bodies served by the commissioners, who exercise power within the limits of the area served the respective housing authority or urban renewal agency. It necessarily follows, in my opinion, that the commissioners must be residents of the areas served by their respective bodies. In the case of a housing authority, that would be the "area of operation"20 or any other area(s) where the housing authority operates.21 An urban renewal agency does not have a defined area of operation 18Dermott Special Sch. Dist. v. Johnson, 343 Ark. 90, 95, 32 S.W.3d 477, 480 (2000) (citing Muse v. Prescott Sch. Dist., 233 Ark. 789, 349 S.W.2d 329 (1961), where the Court stated that it was "obvious" this definition of "political subdivisions" embraces school districts, and that "a school district is in the same legal category as a housing authority."). Accord Op. Att'y Gen. 2017-130. 19See Ark. Code Ann.§§ 14-169-705 (Supp. 2017) and-708 (Repl. 1998). 20Ark. Code Ann. § 14-169-203(8) (defining a housing authority's "area of operation" based on the city's population and territorial boundaries and the county's territorial boundaries, as the case may be). 21 A housing authority established for a city may operate in the unincorporated area of the county and in more than one city; and a housing authority established for a county may operate in more than one county. See id., and Ark. Code Ann. §§ 14-169-104 (Repl. 1998), 14-169-224 (Repl. 1998), 14-169-302 (Repl. 1998). The Honorable Vivian L. Flowers State Representative Opinion No. 2017-096 Page 7 other than the municipality it serves. It is therefore my opm10n that the commissioners of an urban renewal agency must be residents of the city or town in which the agency was created. 22 CONCLUSION In sum, the answer to your question is "yes," in my opinion. More specifically, it is my opinion that the commissioners must reside within the area where the housing authority or urban renewal agency is authorized to exercise its powers. Sincerely,
     ~{~
     Attorney General
     The appointment of housing authority comm1ss10ners from "additional area[s]"- i.e., from outside the authority's area of operation-is specifically contemplated by Ark. Code Ann. § 14- 169-103 (Rep I. 1998) (stating that nothing in the housing authority statutes prevents the appointment of commissioners from "any additional area where the housing authority if authorized to undertake a housing project."). 22See note 12, supra.