In Arkansas, are county election commissioners, parole board members, university trustees, school board members, sheriffs and deputies, city police officers, or county parks commissioners 'civil officers' that legislators or covered county officials cannot also hold?

Plain-English summary

Representative Sarah Capp asked Attorney General Leslie Rutledge to apply the "civil office" analysis under Article 5, section 10 (which bars sitting legislators) and Article 7, section 53 (added by Amendment 95 in 2016, barring ten enumerated county elected officials) to eight categories of state and local positions: county election commissioners, members of the State Board of Pardons and Paroles, members of the Board of Trustees of Southern Arkansas University, members of local school boards, members of the State Board of Career Education, sheriffs and deputy sheriffs, city police officers, and members of the Saline County Parks and Recreation Commission.

The AG answered yes for every position, with the analysis breaking out three layers of authority.

For the first five categories (county election commissioners, Board of Pardons and Paroles, SAU trustees, local school boards, State Board of Career Education), the Arkansas Supreme Court had already held those positions to be civil offices for Article 5, section 10 purposes. The AG referred Capp to the controlling cases without restating them, treating the answer as settled.

For sheriffs and deputy sheriffs, Arkansas precedent (Hensley v. Holder, 228 Ark. 401 (1957); State Bank v. Curran, 10 Ark. 142 (1849)) had long classified the sheriff's office as a civil office, with deputy sheriff powers held to be "co-extensive with those of the sheriff" and therefore likewise civil offices. Plus, Article 7, section 53 expressly lists sheriff as one of the ten covered county elected officials, making the answer obvious for sheriffs.

For city police officers, the AG had previously opined (Op. Att'y Gen. 2018-014) that the position likely holds a civil office, with the same conclusion under both Article 5, section 10 and Article 7, section 53.

For Saline County Parks and Recreation Commission members, the AG opined that the position was created by quorum-court ordinance, requires a bond and oath, and exercises some part of state sovereignty (consistent with Op. Att'y Gen. 2014-064 on similar commissions), so it likely qualifies as a civil office under both provisions.

For all positions other than sheriff (which is explicitly listed in Article 7, section 53), the AG predicted that the same "civil office" analysis would apply under Article 7, section 53 as under Article 5, section 10. No definitive ruling existed because Article 7, section 53 was new and had not yet been litigated.

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

The constitutional provisions on dual-office holding work together. Article 5, section 10 has long barred sitting members of the General Assembly from being "appointed or elected to any civil office under this State" during the term for which they were elected. Amendment 95, ratified in November 2016, added Article 7, section 53, which extends the same prohibition to ten enumerated county elected officials: county judge, justice of the peace, sheriff, circuit clerk, county clerk, assessor, coroner, treasurer, county surveyor, and tax collector.

The "civil office" analysis under Article 5, section 10 has produced a body of Arkansas Supreme Court decisions identifying particular positions as civil offices: county election commissioners, parole board members, university trustees, local school board members, State Board of Career Education members, sheriffs, and deputies (among many others). The AG's framework, laid out in Op. Att'y Gen. 2017-028, treats those decisions as the starting point for Article 7, section 53 analysis as well, on the assumption that "civil office" carries the same meaning across both provisions.

Hensley v. Holder, 228 Ark. 401 (1957), was the leading modern Arkansas Supreme Court decision on sheriff as a civil office. The much older State Bank v. Curran, 10 Ark. 142 (1849), addressed deputy sheriff powers as co-extensive with the sheriff's, supporting treating deputy sheriff as a civil office too. Note both are state Supreme Court decisions (the "Ark." reporter), not federal cases.

Why the eighth category was different

The Saline County Parks and Recreation Commission was the only position with no controlling Arkansas Supreme Court decision and no prior AG analysis specific to it. The AG used the standard civil-office criteria: created by law (quorum-court ordinance), required bond, required oath, and exercise of part of state sovereignty. Each factor pointed toward "civil office" status, so the AG predicted a court would so conclude. The opinion noted the analysis was fact-dependent, citing Op. Att'y Gen. 2014-064, and might come out differently for other parks commissions structured differently.

Common questions

Why does the answer matter for someone running for the legislature?

If a position is a "civil office," a sitting legislator cannot accept appointment or election to it during the legislator's term. This affects who can serve on which boards while holding office, and it can affect the eligibility of legislators (or the ten covered county officials under Article 7, section 53) who want to take a board seat or law-enforcement position concurrently.

Could a justice of the peace also be a city police officer?

Under this opinion, no. Justice of the peace is one of the ten Article 7, section 53 county offices, and city police officer is a civil office. Holding both at the same time would violate Article 7, section 53.

What about a sheriff who wants to serve on a school board?

The opinion concluded local school boards are civil offices. Sheriff is itself one of the ten Article 7, section 53 offices, so a sitting sheriff cannot hold any other civil office during the term. The school board would therefore be barred while the sheriff remained in office.

Was Article 7, section 53 retroactive to officials who held positions when Amendment 95 passed?

The opinion did not address retroactivity. Section 53 prohibits being "appointed or elected" to civil office "during the term for which" the covered official was elected. The plain language addresses prospective appointments and elections during the term, not pre-existing dual office-holding when Amendment 95 took effect.

What did this opinion say about constables?

Constables were not on Capp's list. They are mentioned in passing in Op. Att'y Gen. 2017-104 as elected law enforcement officers excluded from the "law enforcement officer" definition under section 12-9-102(2). Their civil-office status under Article 7, section 53 would require its own analysis.

Citations

Ark. Const. amend. 95, § 6 (codified at Ark. Const. art. 7, § 53); Ark. Const. art. 5, § 10; Hensley v. Holder, 228 Ark. 401, 307 S.W.2d 794 (1957); State Bank v. Curran, 10 Ark. 142 (1849); Ops. Att'y Gen. 2018-014, 2017-028, 2014-064, 2011-123, 91-314.

Source

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

Original opinion text

Opinion No. 2017-112
August 1, 2018
The Honorable Sarah E. Capp
State Representative
P.O. Box 1184
Ozark, AR 72949-1184
Dear Representative Capp:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
This is in response to your request for an opinion on whether certain positions in State and local government would be considered civil offices under Arkansas Constitution Article 5, section 10, and Article 7, section 53.
The positions you have asked about are listed below:

1. County Election Commissioner
2. Member of the State Board of Pardons and Paroles
3. Member of the Board of Trustees of Southern Arkansas University
4. Member of local school board
5. Member of the State Board of Career Education
6. Sheriffs and Deputy Sheriffs
7. City Police Officers
8. Member of Saline County Parks and Recreation Commission

RESPONSE
You have asked whether the positions set out above are "considered 'civil offices' under Article 5, section 10 and Article 7, section 53" of the Arkansas Constitution. With regard to the first five positions you list, the Arkansas Supreme Court has addressed each of the above positions and has held that they are civil offices for the purposes of Article 5, section 10. The cases you have cited with respect to those positions are the most recent pronouncements by the Court regarding the application of Article 5, section 10 to these positions. With respect to the position of sheriff and deputy sheriff, the Arkansas Supreme Court has concluded that each position constitutes a "civil office," with deputy sheriffs' powers being coextensive with those of the sheriff. With regard to the final two positions you list, while the Arkansas Supreme Court has not had occasion to address such positions, it is likely that both would be considered "civil offices" for purposes of Article 5, section 10, in light of each position's ability to exercise some part of the state's sovereign power, as well as the statutory provisions establishing compensation, duties, a bond, and a required oath.

With regard to Article 7, section 53, the Court has not yet had occasion to consider the application of this new constitutional provision to the positions you have identified. Importantly, however, because Article 7, section 53 explicitly lists a "sheriff" as one of the elected offices that cannot simultaneously hold another civil office, it is obvious that sheriffs — and likely, under the analogous case law cited above, deputy sheriffs — would hold "civil offices" for purposes of Article 7, section 53. With respect to the remaining positions, I have previously stated that I have no reason to doubt that the Court would apply the same definitional parameters and consider the same criteria and factors in determining a "civil office" in the context of Article 7, section 53, taking into consideration the facts of each specific case. I will not restate the basis for that conclusion, but instead refer you to my previous opinion for the analysis.

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 of taxes.
This amendment is very similar to a long-existing constitutional provision in Arkansas Constitution Article 5, § 10, 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.

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 the provision noted above. And I have opined that this corpus of law should be equally applicable to the provisions of Article 7, section 53. 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."

Question 1: Would a court likely determine that county election commissioners hold a civil office under Arkansas Constitution Article 5, § 10 and Article 7, § 53?
Question 2: Would a court likely determine that members of the State Board of Pardons and Paroles hold a civil office under Arkansas Constitution Article 5, § 10 and Article 7, § 53?
Question 3: Would a court likely determine that members of the Board of Trustees of Southern Arkansas University hold a civil office under Arkansas Constitution Article 5, § 10 and Article 7, § 53?
Question 4: Would a court likely determine that members of local school boards hold a civil office under Arkansas Constitution Article 5, § 10 and Article 7, § 53?
Question 5: Would a court likely determine that members of the State Board of Career Education hold a civil office under Arkansas Constitution Article 5, § 10 and Article 7, § 53?

With respect to these positions and whether they are considered civil offices for the purposes of Article 5, section 10, please see my summary response above regarding the Court's pronouncements on these positions. Regarding whether they would be considered civil offices under Article 7, section 53, no definitive answer is possible absent a controlling judicial ruling. But it is likely that a court will reach the same conclusion regarding Article 7, section 53 as it did in these cases regarding Article 5, section 10. If I am correct in this prediction, this means that county election commissioners as well as the members of the State Board of Pardons and Paroles, the Board of Trustees of Southern Arkansas University, a local school board, and the State Board of Career Education hold a "civil office" for the purposes of Article 7, section 53.

Question 6: Would a court likely determine that sheriffs and deputy sheriffs hold a civil office under Arkansas Constitution Article 5, § 10 and Article 7, § 53?

With respect to the position of sheriff and deputy sheriff, the Court has concluded, and this office has likewise opined, that each position holds a "civil office." Indeed, the Court has construed a deputy sheriff's powers as "co-extensive with th[ose] of the sheriff," thus determining that such a position is likewise a civil office.

With respect to whether sheriffs and deputy sheriffs hold a civil office under Article 7, section 53, it is my opinion that, based on the plain language of this newly added provision — which specifically includes "sheriff" as one of the elected positions barred from holding another civil office — sheriffs, and likely deputy sheriffs, hold "civil offices" for purposes of Article 7, section 53.

Question 7: Would a court likely determine that city police officers hold a civil office under Arkansas Constitution Article 5, § 10 and Article 7, § 53?

I have previously opined that a city police officer likely holds a civil office. In my opinion, city police officers likely hold "civil offices" under Article 5, section 10.

Regarding whether a city police officer would be considered a civil office under Article 7, section 53, no definitive answer is possible absent a controlling judicial ruling. However, I predict the Court would likely take into consideration the above analyses regarding a police officer's "civil office" status under Article 5, section 10, and conclude that city police officers hold a "civil office" for the purposes of Article 7, section 53.

Question 8: Would a court likely determine that members of the Saline County Parks and Recreation Commission hold a civil office under Arkansas Constitution Article 5, § 10 and Article 7, § 53?

It is my opinion that members of the Saline County Parks and Recreation Commission ("SCPRC") likely hold a civil office for the purposes of Article 5, section 10. The Arkansas Supreme Court has not had occasion to opine as to the status of SCPRC members. However, the position of SCPRC member was created by law through a quorum-court ordinance; and the posting of a bond and administration of an oath are both required. Accordingly, I believe it is likely that an SCPRC member exercises a part of state sovereignty and thus holds a "civil office" for purposes of Article 5, section 10.

Regarding whether an SCPRC member would be considered to hold a "civil office" under Article 7, section 53, no definitive answer is possible absent a controlling judicial ruling. While the answer is certainly factually dependent, I believe it is likely that the Court would take into account the above analyses regarding an SCPRC member's status under Article 5, section 10, and likewise conclude that an SCPRC member holds a "civil office" for the purposes of Article 7, section 53.

Sincerely,

LESLIE RUTLEDGE
Attorney General