Are Arkansas school teachers, small-district superintendents, and similar non-sovereign positions considered 'civil offices' that block the holder from running for or holding county office?

Plain-English summary

Representative Kim Hammer asked AG Leslie Rutledge whether five categories of position (public school teacher, superintendent of a small school district, auditor of the Arkansas Burial Association Board, member of the Baxter Regional Medical Center political advisory board, and a delegate to a constitutional convention) counted as "civil offices" under two provisions of the Arkansas Constitution. Article 5, section 10 has long barred dual office-holding for state officers. Article 7, section 53 (added by Amendment 95 in 2016) imposed a similar bar on ten enumerated county offices, blocking the elected county judge, justices of the peace, sheriff, circuit clerk, county clerk, assessor, coroner, treasurer, surveyor, and tax collector from holding any other "civil office" during their term.

The AG concluded that none of the five positions amounted to a civil office under Article 5 section 10, citing existing Arkansas Supreme Court holdings: Maddox v. State for teachers and small-district superintendents, Haynes v. Riales for the Burial Association auditor, and Harvey v. Ridgeway for convention delegates. The Baxter Regional advisory board was a non-governmental, non-profit role with no exercise of sovereign power.

The AG predicted that the same analytical framework would apply to Amendment 95's new provision in Article 7, section 53, even though no court had yet construed that section. On that prediction, none of the five positions would be a civil office for Amendment 95 purposes either.

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.

Common questions

Q: What is a "civil office" under the Arkansas Constitution?
A: Arkansas courts have used a multi-factor test focused on whether the position involves an exercise of sovereign power, has duties fixed by law (rather than by contract), and is part of one of the three branches of state or local government. Positions filled by employment contract, or rooted in private non-profit corporations, generally fall outside the definition.

Q: Why did Amendment 95 matter?
A: Amendment 95, approved by Arkansas voters in November 2016, added Article 7, section 53 to bar elected county officers (county judge, justices 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 the term to which they were elected. It also extended county-officer terms from two years to four starting with the 2018 general election.

Q: Are public school teachers civil officers?
A: Per Maddox v. State, the Arkansas Supreme Court held that a teacher whose tenure, compensation, and duties are all fixed by contract with the school board is an employee, not an officer. AG 2017-115 followed that holding.

Q: What about superintendents?
A: Maddox also addressed small-district superintendents, concluding that they are not civil officers under Article 5, section 10. The AG noted that Ark. Code Ann. § 6-13-109(a) speaks differently for some district superintendents, so context can vary, but the general rule from Maddox held.

Q: What about an advisory board for a non-profit hospital?
A: The AG opined that membership on the Baxter Regional Medical Center political advisory board is not a civil office because the hospital is a private non-profit, not a governmental entity, and serving on its board does not involve any exercise of sovereign power.

Q: What about a delegate to a constitutional convention?
A: Harvey v. Ridgeway held that a constitutional-convention delegate is not a civil officer within Article 5, section 10's prohibition because the role does not sit within any of the three branches of state government.

Q: Was this opinion binding on the courts?
A: No. AG opinions are persuasive authority. The AG explicitly noted that no definitive answer is possible absent a controlling judicial ruling, and the Arkansas Supreme Court had not yet construed Article 7, section 53 at the time.

Background and statutory framework

Article 5, section 10 of the Arkansas Constitution prohibits a state senator or representative from being appointed during their term to any civil office created or whose emoluments were increased during that term. The Arkansas Supreme Court has built a body of case law applying that section to a wide variety of positions, with the recurring question being whether a role exercises sovereign power and is created by civil law.

Amendment 95, approved by voters in November 2016 and codified at Article 7, section 53, expanded that style of restriction to specific elected county officers. The provision lists ten county positions and bars any holder from being appointed or elected to "any civil office in this state" during the elected term.

At the time of this opinion the new provision had not been judicially construed. AG Rutledge had previously stated, in Op. Att'y Gen. 2017-028, that she had no reason to doubt the court would apply the same definitional framework to Article 7, section 53 as it had to Article 5, section 10. AG 2017-115 carried that prediction forward to the five positions Representative Hammer asked about.

The AG also flagged that the question about the Burial Association auditor might be moot. Act 788 of 2017 abolished the Arkansas Burial Association Board effective July 1, 2018, folding all burial associations into a new State Board of Embalmers, Funeral Directors, Cemeteries, and Burial Services within the State Insurance Department.

Citations and references

Constitutional provisions:

• Ark. Const. art. 5, § 10 (state-officer dual office bar)
• Ark. Const. art. 7, § 53 (Amendment 95 county-officer dual office bar)
• Ark. Const. amend. 95, § 8 (four-year terms for county officers starting 2018)

Statutes:

• Ark. Code Ann. § 6-13-109(a) (school district administration)

Cases:

• Maddox v. State, 220 Ark. 762, 249 S.W.2d 972 (1952) (teachers and small-district superintendents not civil officers)
• Haynes v. Riales, 226 Ark. 370, 290 S.W.2d 7 (1956) (Burial Association auditor not a civil officer)
• Harvey v. Ridgeway, 248 Ark. 35, 450 S.W.2d 281 (1970) (constitutional-convention delegate not a civil officer)

Prior AG opinions referenced:

• Op. Att'y Gen. 2000-144 (Baxter Regional Medical Center advisory board)
• Op. Att'y Gen. 2017-028 (predicting Article 7, section 53 framework)

Source

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

Original opinion text

Opinion No. 2017-115
June 27, 2018

The Honorable Kim Hammer
State Representative
1411 Edgehill
Benton, AR 72015-3128

Dear Representative Hammer:

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. In your request for my opinion, you have asked about five positions and have cited to Arkansas Supreme Court cases and one opinion from this office wherein it was determined that those positions were not "civil offices" for the purposes of Article 5, section 10.

The positions you have asked about and authorities you have referenced are:

1. Teacher (citing Maddox v. State, where the Arkansas Supreme Court stated that the position of school teacher, "whose tenure, compensation, and duties all fixed by his contract with the school boards, is an employee rather than an officer.").

2. Superintendent of a small school district (also citing Maddox wherein the Court concluded that superintendents of smaller school districts are not civil offices under Article 5, section 10).

3. Auditor of the Arkansas Burial Association Board (citing Haynes v. Riales, where the Court held that an auditor for the Burial Association Board was not a civil office).

4. Member of the Baxter Regional Medical Center Political Advisory Board (citing Op. Att'y Gen. 2000-144, which opined that such membership was not a civil office because it did not involve any grant of sovereign power, the Board being a private, non-profit entity).

5. A delegate to the Constitutional Convention (citing Harvey v. Ridgeway, which held that a delegate to a constitutional convention is not civil officer within Article 5, section 10's prohibition because the delegate would not be serving within one of the three branches of state government).

RESPONSE

You have asked whether the positions set out above are "considered 'civil offices' under Article 5 § 10 and Article 7 § 53" of the constitution. With the exception of the fourth, "Advisory Board" position, the Arkansas Supreme Court has addressed each of the above positions and has held that they are not civil offices for the purposes of Article 5, section 10. The cases you have cited are the most recent pronouncements by the Court regarding the application of Article 5, section 10 to these positions.

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. Article 7, section 53 was added to the constitution by Ark. Const. amend. 95, which was approved by the voters in November 2016. It states:

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.

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.

Of course, no definitive answer is possible absent a controlling judicial ruling. But I predict the Court will likely 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 a school teacher, a superintendent of a small school district, an auditor for the Arkansas Burial Association Board, and a delegate to a constitutional convention do not hold a "civil office" for the purposes of Article 7, section 53.

With respect to service on the Baxter County Regional Medical Center's political advisory board, absent additional facts that have not been presented to me, it is my opinion that to the extent this board still exists, membership does not constitute a civil office because (1) the Baxter Regional Medical Center is a non-profit corporation, not a governmental entity, and thus not an entity created by the civil law, and (2) such membership could in no way be seen as exercising the sovereign power of the State.

Sincerely,

Leslie Rutledge
Attorney General

Footnote: The question regarding an auditor for the Burial Association Board may ultimately be moot with the enactment of Act 788 of 2017, which in relevant part abolished this Board, effective July 1, 2018, and will fold all burial associations in Arkansas under a new State Board of Embalmers, Funeral Directors, Cemeteries, and Burial Services. This new state board will become a part of the State Insurance Department.