Can an Arkansas county judge or county clerk also serve on the Workforce Development Board, an Intergovernmental Cooperation Council, or the Electronic Recording Commission without violating the dual-office rule in Amendment 95?

Plain-English summary

Representative John Maddox asked whether three statutory boards required certain county elected officials to hold a separate "civil office" within the meaning of Amendment 95, which added Article 7, section 53 to the Arkansas Constitution. Article 7, section 53 prohibits ten specific county elected officials (county judge, justice of the peace, sheriff, circuit clerk, county clerk, assessor, coroner, treasurer, surveyor, and tax collector) from being appointed or elected to "any civil office" during their term.

The three boards in question were the County Intergovernmental Cooperation Councils (Ark. Code Ann. § 14-27-102), the Arkansas Workforce Development Board (Ark. Code Ann. § 15-4-3704), and the Electronic Recording Commission (Ark. Code Ann. § 14-2-305).

Attorney General Leslie Rutledge gave a split answer. For the Intergovernmental Cooperation Councils and the Electronic Recording Commission, she concluded that the statutes simply imposed additional duties on existing county offices, leaning on Sparling v. Refunding Board, 189 Ark. 189 (1934), where the Supreme Court held that membership on a tax Refunding Board was not an "additional office" but additional duties laid on the holders of existing offices. Members of the cooperation councils received no compensation, exercised no separate sovereign power, and addressed matters that already fell within the general purview of the county judge and county clerk. Members of the Electronic Recording Commission likewise served without compensation and performed work tied to the existing duties of county recorders.

For the Workforce Development Board, the AG reached the opposite conclusion. The Board's statutory powers and duties under section 15-4-3706 (assisting the governor in developing a unified state workforce plan) were substantial enough that service on it constituted a civil office for Article 7, section 53 purposes. A county judge sitting on the Workforce Development Board would therefore violate Amendment 95.

The AG flagged but did not answer a downstream question about federal aid: the federal Workforce Innovation and Opportunity Act, 29 U.S.C. § 3101 et seq., requires certain local-government participation on workforce boards. Whether Arkansas could continue receiving federal aid if county judges could not serve on the Board involved interpreting federal law, which the AG treated as outside the scope of her opinions.

Currency note

This opinion was issued in 2018. 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 was adopted by Arkansas voters in November 2016. Section 6 of the amendment added Article 7, section 53 to the state constitution, prohibiting ten enumerated county elected officials from being appointed or elected to "any civil office in this state" during their term. The provision parallels Article 5, section 10, which has long imposed the same constraint on members of the General Assembly.

Companion Opinion 2017-028 had previously laid out the criteria for what makes a position a "civil office" under Article 5, section 10, and the AG concluded that the same framework applies to Article 7, section 53. The Sparling decision provided the additional-office versus additional-duties distinction. In Sparling, the Court rejected a constitutional challenge to a Refunding Board composed of seven existing constitutional officers, holding that membership amounted to "additional duties" laid on the holders of those offices rather than the creation of new civil offices.

The opinion also referenced Opinion 2017-028's example of property-tax equalization boards (Ark. Code Ann. § 26-27-301 et seq.), where the county clerk's required service as secretary of the equalization board was understood as an additional duty rather than a separate civil office.

How the AG drew the line for each board

County Intergovernmental Cooperation Councils

In 1987, the General Assembly enacted Act 510 to create a cooperation council in each county to coordinate efficient use of local government resources and reduce duplication of services. Membership consists of the county judge, county clerk, and the mayors of each incorporated city or town in the county. The county judge chairs with full voting and veto powers; the county clerk serves as secretary. Members serve without compensation. The councils meet at least annually to review service delivery in areas like law enforcement, fire protection, jails, ambulance, and public transit.

The AG saw none of the markers of a civil office: no separate grant of sovereign power, no compensation, no powers exercised beyond what already inhered in the offices of county judge and county clerk. The councils addressed the same matters those officials already handled in their official capacities. Service was an additional duty, not an additional office.

Arkansas Workforce Development Board

The Workforce Development Board, established by section 15-4-3704, has extensive statutory powers under section 15-4-3706 in helping the governor develop a unified state workforce plan. The AG noted that "the numerous duties the Board is charged by law in assisting the governor with in developing a unified state workforce plan makes it clear that such service would be considered a civil office." A county judge appointed to the Board would therefore be holding a separate civil office in violation of Article 7, section 53.

Electronic Recording Commission

Established under the Uniform Real Property Electronic Recording Act adopted in 2007 (2007 Ark. Acts, No. 734, codified at Ark. Code Ann. §§ 14-2-301 to -307), the eleven-member Electronic Recording Commission keeps Arkansas county recorders' standards and technology in harmony with other states that adopted the uniform act. A majority of members must be county recorders, appointed by the governor. Commissioners do not receive compensation, though they are eligible for expenses. The 2011 amendment (No. 1157) added a state-legislator seat.

The AG saw service on the Commission as an additional duty tied to the work of county recorders. Standards adopted by the Commission directly affect the recorders' day-to-day duties, so participation was an extension of existing office responsibilities rather than a separate office.

The federal-aid question

The AG noted but did not resolve the question of whether Arkansas could continue receiving federal Workforce Innovation and Opportunity Act funds if a county judge could not sit on the Workforce Development Board. That issue required interpreting 29 U.S.C. § 3101 et seq., which the AG treated as beyond her statutory authority to opine on, citing Op. Att'y Gen. 2015-097.

Common questions

Which county officials are covered by Article 7, section 53?

The provision lists ten: county judge, justice of the peace, sheriff, circuit clerk, county clerk, assessor, coroner, treasurer, county surveyor, and tax collector.

What makes a position a "civil office" under Arkansas case law?

This opinion points readers to Opinion 2017-028 for the full set of factors. Here, the AG asked whether the statutes gave county officials a separate office or merely added duties to the offices they already held. For the cooperation councils, she specifically found no separate grant of sovereign power.

If a position is just "additional duties," does that mean a county official has to serve?

The opinion did not address whether service was mandatory; it addressed whether service was constitutionally permitted. A statute requiring a county clerk to serve as secretary of an additional body usually imposes the duty by force of the statute itself.

Did the opinion answer whether legislators (not county officials) could sit on these boards?

No. The AG cited the similar Article 5, section 10 restriction and an earlier opinion about legislators to explain the civil-office test. Her conclusions here concern the county officials identified in the request. A footnote notes that the Electronic Recording Commission statute calls for one active legislator, but the opinion does not decide a legislator's eligibility to serve on any of these bodies.

Citations

Ark. Const. amend. 95, § 6 (codified at Ark. Const. art. 7, § 53); Ark. Const. art. 5, § 10; Ark. Code Ann. § 14-27-101 to -104; § 14-2-301 to -307; § 15-4-3704; § 15-4-3706; § 26-27-301 et seq.; Act 510; 2007 Ark. Acts, No. 734; 2011 Ark. Acts, No. 1157; Workforce Innovation and Opportunity Act, 29 U.S.C. § 3101 et seq.; Sparling v. Refunding Board, 189 Ark. 189, 71 S.W.2d 182 (1934); State Board of Workforce Educ. v. King, 336 Ark. 409, 985 S.W.2d 731 (1999); Op. Att'y Gen. 2017-028; Op. Att'y Gen. 2015-097.

Source

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

Original opinion text

STATE OF ARKAN SAS
ATTORN EY GENERAL
LES LI E RUTLED GE

Opinion No. 2017-104

August 1, 2018

The Honorable John Maddox
State Representative
520 Church Avenue
Mena, AR 71953-3210

Dear Representative Maddox:

This is in response to your request for my opm1on on whether service by appointment on the Intergovernmental Cooperation Councils, the Arkansas Workforce Development Board, and the Electronic Recording Commission by certain county officials would be considered "civil offices" under Arkansas Constitution Article 7, section 53. I have paraphrased your question, as follows:

Would a court likely determine that Ark. Code Ann. §§ 14-27-102 (county intergovernmental cooperation councils), 15-4-3 704 (the Arkansas Workforce Development Board), and 14-2-305 (the Electronic Recording Commission) simply impose additional duties on county elected officials such that service on the aforementioned boards would not be considered as serving in a separate civil office in violation of art. 7, § 53?

RESPONSE

It is my opinion regarding sections 14-27-102 and 14-2-305 that these statutes do not create separate offices, and thus the county officials' service on these bodies does not violate Article 7, section 53. With regard to section 15-4-3704, it is my opinion that service on the Workforce Development Board by a county judge would be considered a "civil office." However, the question of whether Arkansas could still receive federal aid under the Workforce Innovation and Opportunity Act, which requires such service, involves interpreting federal law, which is beyond my authority to render an opinion.

323 CENTER STREET. SU ITE 200 · LITTL E ROCK. ARKAN SAS 7220 1 TELEPHONE (501) 682-2007 ·FAX (50 1) 682-8084 ARKANSA SAG.GOV

The Honorable John Maddox
State Representative
Opinion No. 2017-104
Page 2

DISCUSSION

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 oftaxes. 1

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. 2

In order to determine whether a particular position falls within Article 7, section 53 's proscription for elected county officials, the key consideration is whether the position qualifies as a "civil office." I have previously addressed the prevailing law on what constitutes a "civil office" in the context of a similar and long- standing constitutional prohibition placed on sitting legislators. And I have opined that this corpus of law should be equally applicable to the provisions of Article 7,

1
Ark. Const., amend. 95, § 6 (codified at Ark. Const., art. 7, § 53 (Supp. 2017)).
2
Ark. Const., art 5, § 10 (Rep!. 2004).

The Honorable John Maddox
State Representative
Opinion No. 2017-104
Page 3

section 53. 3 I will not restate the analysis here, but instead refer you to my previous opinion for a review of the criteria and factors for identifying a "civil office."

Your request for my opinion regarding the particular statutes you have identified raises another possibility that must be considered when addressing the question whether a specific position is a "civil office" - whether it truly is an "additional office" or whether it instead only involves "additional duties" that have been imposed on the elected county official. 4 In Sparling, the Court rejected a constitutional challenge to a statute that created a tax "Refunding Board" composed of the Governor, Lieutenant Governor, Treasurer of State, Secretary of State, State Auditor, Attorney General, and the State Bank Commissioner. The Court held that membership on the Refunding Board was not an "additional office," but merely amounted to the imposition of "additional duties ... by the
[legislature] on the holders of the respective offices."5 As an example of this distinction, in Opinion 2017-028, I pointed to the law establishing property-tax equalization boards in each county, and which require the county clerk to serve as the secretary of the board. 6 I reasoned, based on the usual criteria signifying a "civil office" and from the relevant statute's description of the county clerk's duties, that serving as the secretary of the county equalization board has few, if any, of the characteristics of a "civil office" for the clerk, and that it appeared more likely that legislature had simply added duties for the county clerk along with those already prescribed by law.

In my opinion, this is the proper analysis with respect to two of the statutes you have asked about. I will address each statute separately.

Question 1: Would a court likely determine that Ark. Code Ann. § 14-27-101 - 104 (Rep/. 2013), which created County Intergovernmental Cooperation Councils, simply impose additional duties on county elected officials such that service on the councils would not be considered as serving in a separate civil office in violation ofArt. 7, § 53?

3
See Op. Att'y Gen. 2017-028.
4
Sparling v. Refunding Board, 189 Ark. 189, 191, 71 S. W .2d 182, 183 ( 1934).
5
Id. (emphasis added).
6
Ark. Code Ann. § 26-27-301 et seq. (Repl. 2012 & Supp. 2017).

The Honorable John Maddox
State Representative
Opinion No. 2017-104
Page 4

The answer to this question is "yes," in my opm10n. In 1987, the General Assembly enacted Act 510 7 that established county intergovernmental cooperation councils in each county of the state. 8 The purpose of these councils is to "encourage the efficient use of local government resources, and to eliminate the duplication of services by local governments." 9 The law, among other things, reqmres:

[T]he executives of all political subdivisions of each county to meet on a regular basis for the purpose of encouraging cooperation by the various local government jurisdictions within each county in the most efficient use of their mutual resources and in the providing of services to their local communities in the most efficient and mutually advantageous manner possible. 10

The county judge, county clerk, and the mayors of each city and incorporated town within the county comprise the membership of each council, with the county judge acting as chairman with full voting and veto powers. 11 The county clerk serves as the secretary of each cooperation council, with the duties as defined in the statute. 12 The members of the cooperation councils serve without • 13 compensat10n.

These cooperation councils are required by law to meet at least one time annually, 14 and are to "review the delivery of services by the various local government subdivisions within the county" in areas such as law-enforcement and fire-protection services, jails and correctional services, ambulance and emergency

7
Codified at Ark. Code Ann.§ 14-27-101 -104 (Rep!. 2014).
8
Ark. Code Ann. § 14-27-102(a) ("There is established within each county of this state a county intergovernmental cooperation council ... ").

9 Id.

10
Id. at§ 14-27-lOl(a).

11
Id. at§ 14-27-102(b).
12
Id. at§ 14-27-102(b)(3).
13
Ark. Code Ann.§ 14-27-102(d).
14
Id. at§ 14-27-103(a).

The Honorable John Maddox
State Representative
Opinion No. 2017-104
Page 5

medical services, and public transit and transportation services. 15 These reviews are designed to determine if costs for these local government services can be reduced through employee-, equipment-, or facility-sharing measures; the elimination of unnecessarily duplicative services; or the joint purchasing of certain commodities or services. 16

In my opinion, a reviewing court would most likely view the statutes establishing these cooperation councils and requiring the county judges and county clerks to serve on them as ones that merely impose additional duties on these elected county officials, and not as ones that create civil offices. I can see few, if any, of the factors the Court looks for that signify a "civil office."

Primarily, I cannot see where the statutes at issue provide for any separate grant or possession of sovereign power. 17 State law certainly establishes these cooperating councils in each of Arkansas' 75 counties. But the councils are charged with addressing matters that fall within the general purview of the elected county judge and county clerk (how to provide local services for efficiently and cost effectively for the benefit of local residents). Stated differently, serving on a county intergovernmental cooperation council is just one more duty imposed on these county officials in furtherance of their fundamental missions. The officials are not exercising any additional sovereign powers, apart from the powers that inhere in their elected offices.

Question 2: Would a court likely determine that Ark. Code Ann. § 15-4-3704 (Supp. 2017), which created the Arkansas Workforce Development Board, simply imposes additional duties on county elected officials such that service on the board would not be considered as serving in a separate civil office in violation ofArt. 7, § 53?

In my opinion, the answer to this question very likely is "no." It is unquestionable, in my opinion, that when one reviews the statutory powers and

15
Id. at§ 14-27-104(a).
16
Id. at§ 14-27-104(b).
17
See State Board of Workforce Educ. v. King, 336 Ark. 409, 985 S.W.2d 731 (1999).

The Honorable John Maddox
State Representative
Opinion No. 2017-104
Page 6

duties of the Arkansas Workforce Development Board ("Board"), 18 such service would be considered a civil office for the purposes of Article 7, section 53. 19

Question 3: Would a court likely determine that Ark. Code Ann. § 14-2-305 (Supp. 2017), which created the Electronic Recording Commission, simply imposes additional duties on county elected officials such that service on the commission would not be considered as serving in a separate civil office in violation ofArt. 7, § 53?

The answer to this question is "yes," in my opm1on. This comm1ss1on was established with the adoption of the "Uniform Real Property Electronic Recording Act" in 2007, 20 a uniform act proposed by the National Conference of Commissioners on Uniform State Laws. The purpose of the uniform act is to allow the recording of electronic real-property documents if a paper document with the same content would be recordable. 21 The Electronic Recording Commission ("the Commission") is charged with keeping "the standards and practices of county recorders in this state in harmony with the standards and practices of recording offices in other jurisdictions that enact substantially [the uniform act] and to keep the technology used by county recorders in this state compatible with technology used by recording offices in other jurisdictions that enact substantially [the uniform act]. " 22

18
See Ark. Code Ann.§ 15-4-3706 (Supp. 2017). The numerous duties the Board is charged by law in assisting the governor with in developing a unified state workforce plan makes it clear that such service would be considered a civil office. 19 The implications of this, however, with respect to the federal Workforce Innovation and Opportunity Act, 29 U.S.C. § 3101 et seq., as it relates to Arkansas necessarily involve an interpretation of federal law, which is beyond my statutory authority to render an opinion. See Op. Att'y Gen. 2015-097. 20 2007 Ark. Acts, No. 734 (codified at Ark. Code Ann.§§ 14-2-301 - 307 (Rep!. 2013 and Supp. 2017). 21 Ark. Code Ann.§ 14-2-303 cmt. (a) (NCCUSL comments, 2004).
22
Ark. Code Ann. § 14-2-305(b) (Supp. 2017).

The Honorable John Maddox
State Representative
Opinion No. 2017-104
Page 7

Under the uniform act adopted in Arkansas, a majority of the I I-member Commission must be county recorders, appointed by the governor. 23 This is because county recorders will be most affected in their official duties by the standards the Commission adopts for the electronic recording of real-property documents in Arkansas. 24 The 11 commissioners do not receive compensation for their service, although they are eligible for expenses.

In my opinion, service on this Commission does not satisfy enough of the factors set out above to qualify for a "civil office." Rather, it seems more likely that the county recorders serving on the Commission are performing an additional duty in connection with the mission of their elected offices.

Sincerely,

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LESLIE RUTLEDGE
Attorney General

23
Id. at§ 14-2-305(a). The uniform act was amended in 2011 to require that one member be an active state legislator, see 2011 Ark. Acts, No. 1157 (however, I am unaware that any active member of the General Assembly has actually been on the Commission since at least 2013). Beyond that, the uniform act is silent as to the residual makeup of its membership.

24
Id. at§ 14-2-305 cmt. (a) (NCCUSL comments, 2004).