In Arkansas, which boards (county fair, library, RDA, soil conservation, etc.) count as 'civil offices' that legislators and certain elected county officials cannot also serve on?

Plain-English summary

Two provisions of the Arkansas Constitution use the same phrase to limit dual office-holding. Article 5, section 10 says no senator or representative may, during the term for which elected, be appointed or elected to "any civil office under this State." Article 7, section 53, added by Amendment 95 in 2016, applies the same rule to ten elected county officials: county judge, justice of the peace, sheriff, circuit clerk, county clerk, assessor, coroner, treasurer, county surveyor, and tax collector.

Representative Mike Holcomb asked whether nine specific positions counted as "civil offices" under those provisions. Attorney General Leslie Rutledge answered for each. Five were civil offices, three were not, and one could not be decided without more facts.

The boards that the AG identified as civil offices were: county fair boards (statutory public facilities boards under Ark. Code Ann. section 14-137-106), county soil conservation boards (created under section 14-125-301 et seq.), local museum boards and commissions created as public facilities boards, county library boards created under section 13-2-401, and Rural Development Authority commissioners (section 14-188-101 et seq.). The common thread was that each entity exercises some piece of sovereign power, has statutorily defined terms and duties, and handles public funds, raises revenue, or makes binding decisions.

The boards that were not civil offices were Farm Bureau boards (described as independent voluntary organizations), local chambers of commerce, and the Arkansas Cattleman's Foundation Board. The common thread was that these are private nonprofit organizations that do not exercise sovereign power.

The Design Review Board for West Memphis was created by city ordinance in 1987, but the AG could not assess its sovereign-power character without seeing the ordinance and learning what powers it actually held. The AG cannot act as a fact-finder on questions like that.

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 "civil office" inquiry under article 5, section 10 has a long history. The AG referred to Op. Att'y Gen. 2017-028, which collected the prevailing test: a position is a civil office when it is created by law, has duties prescribed by law, and involves the exercise of some portion of the state's sovereign power. Indicia commonly cited include a fixed term, an oath of office, statutory compensation provisions, and authority to bind the public or to handle public funds.

When voters added section 53 to article 7 in 2016 by adopting Amendment 95, they imported the same "civil office" phrase. The AG's prior opinions, and this one, treat the body of "civil office" case law and AG opinions as equally applicable to the new provision.

Public facilities boards under Ark. Code Ann. section 14-137-101 et seq. are creatures of state statute. The county or city governing body creates one by ordinance, and the ordinance assigns specific duties beyond an advisory role. Section 14-137-108 fixes terms, requires oaths of office, and addresses compensation. Section 14-137-111 grants statutory powers including managing and lending money. Section 14-137-116 authorizes bond issuance.

Soil conservation districts under section 14-125-301 et seq. carry an even clearer statutory designation: section 14-125-303(a) calls each district "a governmental subdivision of this state, and a public body, corporate and politic, exercising public powers." The directors develop land-use regulations under section 14-125-501 et seq., assess and levy taxes under section 14-125-701 et seq., and accept and account for state-provided funds under section 14-125-109.

County library boards under sections 13-2-401 to -409 may serve as custodian of the "county public library fund" and may approve claims and authorize payment under section 13-2-404(c)(1). They accept gifts, donations, and bequests, and may spend funds on improvements by resolution.

Rural Development Authorities under section 14-188-101 et seq. are statutorily characterized as "a public body corporate and politic, exercising public and essential government functions." County courts appoint five commissioners with staggered terms under section 14-188-105(a)(2)(A), serving without compensation under section 14-188-105(c)(4). RDAs can sue and be sued, borrow money, and issue bonds.

Position-by-position analysis

County fair boards

Cleburne County's Ordinance No. 10-20 (2010) created the specific board Holcomb asked about, but the AG's analysis applied to public facilities boards generally. Because state law imposes a board-formation requirement, fixes terms and oaths of office, sets compensation rules, and grants the board sovereign power over money management, lending, and bond issuance, the AG concluded that members of county fair boards generally hold civil offices. The opinion cautioned that the answer for Cleburne County's specific board would depend on the ordinance the AG had not seen.

Farm Bureau boards

Holcomb described Farm Bureau as an "independent, voluntary organization and nongovernmental in nature." On that premise, the AG concluded membership is not a civil office. Farm Bureau's board does not exercise the state's sovereign power.

Design Review Board for West Memphis

Created by West Memphis Ordinance No. 1290 of 1987. The AG declined to opine because the ordinance's specifics were not before the office, and the office cannot act as a fact-finder. Whether the Design Review Board exercises sovereign power, controls public funds, or has binding authority would determine the answer. The same analytical framework would apply once the facts were assembled.

Local chambers of commerce

Private, nonprofit organizations. Membership is not a civil office under either provision.

Arkansas Cattleman's Foundation Board

Private, nonprofit. Same result as chambers of commerce.

County soil conservation boards

Statutorily designated as "a governmental subdivision of this state, and a public body, corporate and politic, exercising public powers" under section 14-125-303(a). The AG noted the directors' authority to develop land-use regulations, assess and levy taxes, and accept and account for state funds. Membership is a civil office.

Local museum boards and commissions

Created as public facilities boards under the same Ark. Code Ann. section 14-137-101 et seq. framework as county fair boards. The AG referred back to its analysis of fair boards. Membership is a civil office.

County library boards

The AG limited the answer to county library boards created under sections 13-2-401 to -409, distinguishing them from county advisory or administrative boards under section 14-14-705. The library board can be the custodian of the county public library fund, can spend that fund by resolution, can accept gifts, donations, bequests, fees, and fines, and approves claims for payment from those funds. The AG noted in a footnote that state law does not require these boards to take an oath or set their members' terms, but the library board's authority to accept, control, and spend public monies was sufficient on its own. Membership is a civil office.

Rural Development Authority commissioners

Section 14-188-109 designates RDAs as public bodies corporate and politic. Commissioners are appointed by the county court, serve staggered statutory terms, receive no compensation, and exercise statutory powers including suing and being sued, borrowing money, and issuing bonds. Commissioners likely hold civil offices.

Common questions

Why did the AG say county fair boards "generally" hold civil offices but not give a definitive answer for Cleburne County's specific board?

Because the AG cannot act as a fact-finder on the specific ordinance. Cleburne County Ordinance No. 10-20 (2010) might have given its fair board a narrower or broader scope than the typical public facilities board. The general principle from sections 14-137-101 et seq. supports civil-office status, but the actual ordinance is what controls. A county attorney would need to read the ordinance to confirm.

Did this opinion bar a sitting state legislator from serving as a county library board member?

It told a sitting legislator and a covered elected county official that doing so during their elected term likely fell within the constitutional prohibition. The AG opinion is persuasive but not binding; only a court could finally rule. The opinion provided the analytical frame for that ruling.

Why don't private nonprofit boards (Farm Bureau, chambers, Cattleman's Foundation) count?

Because the constitutional prohibition is about civil offices "under this State." Service on a private nonprofit board, even one that interacts with state and local government, is not a state office. There is no sovereign power, no statutory duties, and no public-fund custody.

What about a soil conservation district that has not yet exercised its taxing authority?

The AG's analysis tied civil-office status to the statutory grant of sovereign power, not to whether the entity had used it. Section 14-125-303(a)'s designation of the district as a public body corporate and politic was enough.

Did the opinion cover paid versus unpaid positions?

The AG did not treat compensation as decisive. Public facilities boards have statutory rules for compensation (or its absence). RDA commissioners serve without compensation under section 14-188-105(c)(4). What mattered was the statutory authority and exercise of sovereign power, not whether the board members were paid.

Citations

Ark. Const. art. 5, section 10; art. 7, section 53; amend. 95, section 6; Ark. Code Ann. sections 13-2-401 through -409, 13-2-404, 13-2-404(b)(1), 13-2-404(c)(1), 13-2-405, 14-14-705, 14-14-802(b)(2)(C)(v), 14-125-301 et seq., 14-125-303(a), 14-125-501 et seq., 14-125-701 et seq., 14-125-109, 14-137-106, 14-137-106(d)(21), 14-137-107(a), 14-137-108(a)(3), 14-137-108(a)(4), 14-137-108(a)(6), 14-137-108(b)(2), 14-137-108(b)(3), 14-137-108(b)(5), 14-137-111(a)(9), 14-137-111(a)(10), 14-137-116, 14-188-101 et seq., 14-188-104, 14-188-104(a)(2), 14-188-105(a)(2)(A), 14-188-105(c)(4), 14-188-109, 14-188-109(1)(A), 14-188-109(2)(A), 14-188-110(a)(1)(A); Op. Att'y Gen. 2017-028.

Source

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

Original opinion text

Opinion No. 2017-114
August 14, 2018

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

The Honorable Mike Holcomb
State Representative
9108 Sulphur Springs Road
Pine Bluff, AR 71603-0904

Dear Representative Holcomb:

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 Fair Board member
2. Farm Bureau Board member
3. Member of the Design Review Board for West Memphis
4. Member of local chamber of commerce
5. Arkansas Cattleman's Foundation Board member
6. County Soil Conservation Board member
7. Member of local museum board or commission
8. County Library Board member
9. [Commissioner] of Rural Development Authority

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. It is my opinion that membership on a "County Fair Board," a "County Soil Conservation Board," a local museum board or commission, a "County Library Board," and a "Rural Development Authority" are civil offices for purposes of both constitutional provisions. It is my opinion that membership on a "Farm Bureau Board," local chambers of commerce, and the "Arkansas Cattleman's Foundation Board" are not civil offices for purposes of both Article 5, section 10 and Article 7, section 53. Finally, because I do not have enough facts, and there is no legislation regarding it, I am unable to determine whether the "Design Review Board for West Memphis" is a civil office for purposes of each of these constitutional sections.

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 in language to a long-existing constitutional provision, Article 5, section 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 Article 5, section 10's prohibition on sitting legislators, 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 members of the County Fair Board, a public facilities board created by Cleburne County Ordinance No. 10-20 (2010), pursuant to Ark. Code Ann. § 14-137-106, are considered to be holding "civil offices" under Arkansas Const. art. 5, § 10, or art. 7, § 53?

It is my opinion that members of county fair boards, in general, likely hold a civil office for the purposes of Article 5, section 10 and Article 7, section 53. But this ultimately depends upon facts within the Cleburne County Ordinance to which I am not privy, and thus I am unable to render any definitive conclusion regarding this specific entity. I will instead state the general legal principles under which public facilities boards fall, so that they can be applied to the specific powers granted to the Cleburne County Fair Board.

State law authorizes counties to establish public facilities boards, including a county fair board. The governing body of the county shall create such a board pursuant to ordinance, which must include the name of the board and list the specific duties of the board, which go beyond the scope of an advisory role. Moreover, the Code sets the terms of office for board members and requires that board members take an oath of office. Section 14-137-108 likewise sets the compensation, or lack thereof, for each position. Finally, county fair board members are authorized to exercise sovereign power. The Code establishes specific, statutory powers with respect to managing and lending money, and authorizes public facilities boards to issue bonds.

In my opinion, in light of the foregoing, members of county fair boards generally are likely to hold civil offices pursuant to Article 5, section 10 and Article 7, section 53.

Question 2: Would a court likely determine that members of a local Farm Bureau Board, which is an independent, voluntary organization and nongovernmental in nature, are considered to be holding "civil offices" under Arkansas Const. art. 5, § 10, or art. 7, § 53?

Based on your description of a local Farm Bureau Board as a non-governmental "independent, voluntary organization," it is my opinion that members of this Board do not hold a civil office under either Article 5, section 10 or Article 7, section 53.

Question 3: Would a court likely determine that members of the Design Review Board for West Memphis, created by West Memphis Ordinance No. 1290 of 1987, are considered to be holding "civil offices" under Arkansas Const. art. 5, § 10, or art. 7, § 53?

Because there is no legislation regarding the "Design Review Board for West Memphis," I am unable to opine as to whether its members hold a civil office for purposes of Article 5, section 10 or Article 7, section 53. Despite the information you have provided that describes this board, I do not have enough facts, and I cannot act as a fact-finder in the issuance opinions or make additional findings of fact, to discern whether this board exercises any semblance of the state's sovereign power such that membership could be considered holding a civil office for purposes of the constitution.

Question 4: Would a court likely determine that members of local Chambers of Commerce, which are typically nonprofit organizations managed by executive committees and a board of directors, are considered to be holding "civil offices" under Arkansas Const. art. 5, § 10, or art. 7, § 53?

Question 5: Would a court likely determine that members of the Arkansas Cattleman's Foundation Board, a nonprofit organization, are considered to be holding "civil offices" under Arkansas Const. art. 5, § 10, or art. 7, § 53?

With respect to these two questions, both local chambers of commerce and the Arkansas Cattleman's Foundation Board are clearly private, nonprofit organizations. Therefore it is my opinion that service on either of these entities would not be considered holding civil offices for purposes of Article 5, section 10 or Article 7, section 53.

Question 6: Would a court likely determine that members of a County Soil Conservation Board, created pursuant to Ark. Code Ann. § 14-125-301, et seq., are considered to be holding "civil offices" under Arkansas Const. art. 5, § 10, or art. 7, § 53?

I take it from your question that you are asking about the directors, i.e., members of the governing body, of a soil conservation district formed pursuant to Title 14, Chapter 125 of the Arkansas Code. In my opinion, a reviewing court would easily conclude that the directors of a soil conservation board hold a civil office under the Arkansas Constitution. Indeed, State law all but states as much: "A soil and water conservation district organized under the provisions of this chapter shall constitute a governmental subdivision of this state, and a public body, corporate and politic, exercising public powers." The powers, duties, and responsibilities given to such districts' boards, such as developing land-use regulations, the ability to assess and levy taxes, and to accept, spend, and account for State-provided funds, are too numerous to list here, but all, in my opinion, point to such boards exercising the sovereign power, thus making membership on such boards a civil office.

Question 7: Would a court likely determine that members of the local museum board or commission, a public facilities board created by Faulkner County Ordinance No. 92-16 (1992), pursuant to Ark. Code Ann. § 14-137-106, are considered to be holding "civil offices" under Arkansas Const. art. 5, § 10, or art. 7, § 53?

Please refer to my response to your first question regarding members of public facilities boards created pursuant to Ark. Code Ann. § 14-137-101 et seq.

Question 8: Would a court likely determine that members of the County Library Board, created pursuant to Ark. Code Ann. § 13-2-401, are considered to be holding "civil offices" under Arkansas Const. art. 5, § 10, or art. 7, § 53?

Since you have asked about county library boards created pursuant to Ark. Code Ann. § 13-2-401 - 409 (Repl. 2015), I will limit my discussion to only those boards ("county library boards"). In my opinion, members of a county library board created under that statutory scheme likely would be occupying a civil office under the Arkansas Constitution.

These statutes as a whole establish that a county library board is an entity created by the county government that is properly characterized as an agent within the executive branch of the county. A county library board so created may, if it chooses, be the custodian of the "county public library fund," a separate fund under the county treasurer comprised of library tax money collected pursuant to Amendment 38 and other funds appropriated by the county quorum court. A county library board has the statutory authority to spend library funds for expansion or improvements to the library by resolution, and it has the authority to accept gifts, donations, and bequests, as well as fees and fines. Moreover, any claims against county library funds that remain in the board's custody pursuant to section 13-2-404(b)(1) can "be approved by the county court until acted upon by the governing library board . . . , and payment authorized by the governing library board."

In light of these powers to accept, control, and spend public monies, it is my opinion that membership on a county library board under section 13-2-401 would be considered a civil office under Article 5, section 10 and Article 7, section 53.

Question 9: Would a court likely determine that [commissioners] of a Rural Development Authority, created pursuant to Ark. Code Ann. § 14-188-104, are considered to be holding "civil offices" under Arkansas Const. art. 5, § 10, or art. 7, § 53?

It is my opinion that commissioners of a Rural Development Authority ("RDA") likely hold civil offices for the purposes of Article 5, section 10 and Article 7, section 53. State law authorizes the creation of an RDA and states that it is "a public body corporate and politic, exercising public and essential government functions and shall have all the powers necessary or convenient to carry out" the purposes as prescribed by law. Should a county choose to create an RDA, the county court is charged with appointing five commissioners, who serve staggered terms as set by statute and do not receive any compensation for their services. Further indicia that the commissioners hold civil offices is the fact that the powers, duties, and responsibilities given to these authorities are set by law, and include the power to sue and be sued, to borrow money, and to issue bonds, among other various powers. Thus it is my opinion that RDA commissioners likely hold a civil office under Article 5, section 10 and Article 7, section 53.

Sincerely,

LESLIE RUTLEDGE
Attorney General