Would Arkansas courts likely treat seven kinds of water, airport, fire, hospital, health and levee board seats as civil offices?

Plain-English summary

Representative Lanny Fite asked whether service on eight types of Arkansas boards counted as holding a “civil office” under the constitutional restrictions for legislators and certain county officials. The AG predicted that seven categories likely were civil offices under both Article 5, § 10 and Article 7, § 53: water boards, public facilities boards, airport commissions, the Arkansas Fire Protection Service Board, county hospital boards, county or district boards of health, and levee boards. She could not classify the Southwest Mental Health Board because she found no governing legislation or sufficient information about it.

For the seven categories she analyzed, the AG relied on statutes creating the positions and setting duties, compensation and terms. Several required oaths. The water, public facilities and municipal airport boards had eminent-domain authority; other boards held powers to manage money, issue bonds, prescribe standards, issue orders or regulate operations. These features supported her prediction that the seats were civil offices. The opinion used “likely” throughout; it did not report a judicial ruling on any particular person's eligibility to serve.

Currency note

This opinion was issued in 2018 and describes the boards under statutes then in force. Check a board's current legal structure and any later court decisions before making an appointment decision.

Background and statutory framework

Ark. Const. art. 5, § 10 restricts a senator or representative from appointment or election to a civil office during the term for which elected. Ark. Const. art. 7, § 53, added by Amendment 95, imposes a similar restriction on ten specified county officials. The AG referred to Opinion 2017-028 for the general civil-office factors and applied them to the statutes Fite asked about.

The AG looked at legal creation, powers and duties, compensation and term length. An oath and the exercise of public power also informed the first four categories. For the final three categories, she stressed that the boards' statutory authority exceeded a merely advisory role.

How the AG evaluated the boards

Water boards, public facilities boards, airport commissions and fire board. The AG grouped these first four questions. She found statutory creation, continuing duties, compensation rules and terms for each. Water, public facilities and airport commissioners had oath requirements. Water boards, public facilities boards and municipal airport commissions could exercise eminent domain. The statutes also supplied powers concerning money, bonds, airport management or fire-department standards. She predicted these seats likely qualified as civil offices under both constitutional provisions.

County hospitals, boards of health and levee boards. These statutes likewise established the boards, their duties, compensation rules and terms. The AG pointed to authority to manage hospitals, adopt rules and orders, and exercise exclusive control over levees. She predicted these seats also likely were civil offices.

Southwest Mental Health Board. The AG could not find legislation governing the board and said she lacked enough information to give an opinion on its civil-office status. That is an unresolved classification, not a finding that its members may or may not serve.

Common questions

Did the AG definitively bar legislators or county officials from all these boards?

No. She predicted that the seven categories with identified statutes likely qualify as civil offices. The constitutional provisions restrict appointment or election of covered officials to civil offices during their terms, but the opinion did not adjudicate a particular appointment.

Could a county judge resign and immediately take a board seat?

The opinion does not decide that timing question. Article 7, § 53 speaks of appointment or election “during the term for which he or she has been elected.” A person considering a move should examine that provision and current law before acting.

Why did the AG mention the boards' powers?

The statutes gave members more than advisory tasks. The opinion points to powers such as eminent domain for certain boards, hospital management, rulemaking, orders and levee supervision as reasons the seats likely count as offices.

What would be needed to assess the Southwest Mental Health Board?

The AG needed governing legislation or enough information to identify the board's powers, duties and structure. She said she could not locate a state statute for it.

Source

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

Original opinion text

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

Opinion No. 2017-116

August 1, 2018

The Honorable Lanny Fite
State Representative
3324 Highway 5
Benton, AR 72019-18 83

Dear Representative Fite:

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, § 10, and Article 7, § 53.

The positions you have asked about are listed below:

1. Members of rural water boards or regional water boards or water users boards
2. Members of waterworks and public sewers facilities boards 3. Members of airport commissions
4. Members of the Arkansas Fire Protection Service Board 5. Members of the Southwest Mental Health Board 6. Members of county hospital boards
7. Members of county or district boards of health 8. Members of levee boards or levee improvement districts

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 all but one of the boards and commissions you have listed are likely "civil offices" for purposes of Article 5, section 10 and Article 7, section 53. I lack sufficient information regarding the "Southwest Mental Health Board;"

323 CE NTER STREET. SU ITE 200 · L ITT LE ROCK. ARKAN SAS 7220 1 TELEP HONE (50 1) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV

The Honorable Lanny Fite
State Representative
Opinion No. 2017-116
Page 2

neither can I find any state statutes governing such a board. Therefore, I am unable to opine as to whether this board constitutes a "civil office" for purposes of Article 5, section 10 or Article 7, section 53.

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) Collectoroftaxes. 1

This amendment is very similar 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 a similar and long- standing constitutional prohibition placed on sitting legislators. And I have opined

1
Ark. Const., amend. 95, § 6 (codified at Ark. Const., art. 7, § 53 (Supp. 2017)).

The Honorable Lanny Fite
State Representative
Opinion No. 2017-116
Page 3

that this corpus of law should be equally applicable to the provisions of Article 7, section 53. 2 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."

DISCUSSION

Question 1: Would a court likely determine that members of rural water boards or regional water boards or water users boards ("Water Boards"), hold a "civil office" under Arkansas Constitution Article 5, §I 0 and Article 7, § 53?

Question 2: Would a court likely determine that members of waterworks and public sewers facilities boards ("Public Facilities Boards"), hold a "civil office" under Arkansas Constitution Article 5, § I 0 and Article 7, § 53?

Question 3: Would a court likely determine that members of airport commissions hold a "civil office" under Arkansas Constitution Article 5, § I 0 and Article 7, § 53?

Question 4: Would a court likely determine that members of the Arkansas Fire Protection Service Board hold a "civil office" under Arkansas Constitution Article 5, § I 0 and Article 7, § 53?

The answer to your first four questions is "yes," in my opinion. The first four board and commission members about which you ask likely hold a "civil office" pursuant to both Article 5, section 10 and Article 7, section 53. Because the reasoning on which I base my opinion applies to each of these offices, I will address them together.

Each of the above-mentioned positions is created bl law. 3 The Code likewise establishes the powers and duties of each position, sets the compensation-or

2
See Op. Att'y Gen. 2017-028.
3
See Ark. Code Ann.§§ 14-238-108(a) (Supp. 2017) (Water boards); 14-137-107(a) (Rep!. 1998) (Public facilities boards); 14-357-102(a) (Airport commissions); 20-22-803(a) (Supp. 2017) (Arkansas Fire Protection Service Board). 4 See id. at §§ 14-238-11 l(a) (Rep!. 1998) (water board members' duties are continuing, not occasional or intermittent); 14-137-111 (public facilities board members' duties are numerous, and include the authority to "do any and all ... things necessary or convenient" to accomplish"

The Honorable Lanny Fite
State Representative
Opinion No. 2017-116
Page 4

lack thereof-for each position, 5 and establishes the terms of office. 6 And in order to serve, members of the Water Boards, Public Facilities Boards, and Airport Commissions must take an oath of office. 7

Furthermore, each of these positions exercises some sort of sovereign power. Members of Water Boards, Public Facilities Boards, and Municipal Airport Commissions are all authorized to exercise the power of eminent domain. 8 And finally, each of these is given specific, statutory powers with respect to managing and lending money, and issuing bonds. 9

It is thus my opinion that members of these boards and commissions likely hold a "civil office" under Arkansas Constitution Article 5, section 10 and Article 7, section 53.

their purpose); 14-3 57-105(a)( 1) (county airp011 commissioners' duties are continuous, and include the authority to "manage, operate, improve, extend, and maintain the airp011 and its related properties and facilities."); 14-359-109(a)(l) (municipal airport commissioners' duties include the "full and complete authority to manage, operate, improve, extend, and maintain the municipal airport and its related properties and facilities."); 20-22-804(a)(l) (Fire Protection Service Board members' duties include the authority to "[p]rescribe by regulation minimum standards for the certification of fire departments and standards for the classification of fire departments .... ").

5
See id. at §§ 14-238-108(e) (water board members); 14-137-108(a)(6) (Supp. 2017) (public facilities board members); 14-357-104 (county airport commissioners); 14-359-107 (municipal airp011 commissioners); 20-22-803(d) (Arkansas Fire Protection Service Board members).

6
See id. at §§ 14-238-108(b) (water board members); 14-137-108(a) (public facilities board members); 14-357-102(b) (county airport commissioners); 14-359-105(b) (municipal airpo11 commissioners); 20-22-803(a)(4) (Arkansas Fire Protection Service Board members). 7 See id. at§§ 14-238-108(c) (water board members); 14-137-108(a)(4) (public facilities board members); 14-357-102(e) (county airport commissioners); 14-359-105(c) (municipal airport commissioners). 8 See Ark. Code Ann. §§ 14-238-l 12(c) (water boards); 14-137-l 12(c) (Rep!. 1998) (public facilities boards); 14-359-112 (municipal airport commissions). 9 See id. at§§ 14-238-l 13(a) (Rep!. 1998); 14-137-111(10) (regarding a public facilities board's power to lend and invest money); 14-137-l 15(a) (Rep!. 1998) (regarding public facilities board's power to issue bonds); 14-359-11 l(a) (regarding a municipal airport commission's power to issue bonds, borrow money, and allocate available funds).

The Honorable Lanny Fite
State Representative
Opinion No. 2017-116
Page 5

Question 5: Would a court likely determine that members of the Southwest Mental Health Board !told a "civil office" under Arkansas Constitution Article 5, § 10 and Article 7, § 53?

Because there is no legislation regarding "Southwest Mental Health," I am unable to opine as to whether it is a "civil office" for purposes of Article 5, section 10 or Article 7, section 53.

Question 6: Would a court likely determine that members of county hospital boards !told a "civil office" under Arkansas Constitution Article 5, § 10 and Article 7, § 53?

Question 7: Would a court likely determine that members of county or district boards of !tea/tit !told a "civil office" under Arkansas Constitution Article 5, § I 0 and Article 7, § 53?

Question 8: Would a court likely determine that members of a levee board or levee improvement district board !told a "civil office" under Arkansas Constitution Article 5, § 10 and Article 7, § 53?

The answer to your last three questions is "yes," in my opinion. Each of these board members about which you ask likely hold a "civil office" pursuant to both Article 5, section 10 and Article 7, section 53. Because the reasoning on which I base my opinion applies to each of these offices, I will address them together.

Each of the above-mentioned positions is created by law. 10 The Code likewise establishes the powers and duties of each position, 11 sets the compensation-or

10
See Ark. Code Ann. §§ 14-263-103(a) (Supp. 2017); 14-262-l 13(b)(l) (Repl. 1998) (establishing qualifications for county board of health members) and 14-262-l 13(c)(l) (establishing qualifications for district board of health members); 14-123-30l(a) (Repl. 1998) (noting that three directors of levees and three assessors of lands shall be elected in each of the levee districts). 11 See id. at§§ 14-263-lOS(b)-(c) (Repl. 1998) (establishing that hospital board members' duties include the "duty of managing, controlling, and supervising the operation of the county hospital," and the power to "make regulations, employ personnel, and prescribe any and all requirements and other matters pertaining to the operation of the hospital."); 14-262-11 S(a) (Repl. 1998) (including the power to provide offices, determine general policies, issue orders, and adopt rules and regulations); 14-123-308 (Repl. 1998) (stating that levee boards have "exclusive control and supervision of the levees in their district," and the authority to "[m]ake all necessary rules for [the levees'] protection.").

The Honorable Lanny Fite
State Representative
Opinion No. 2017-116
Page 6

lack thereof-for each, 12 and establishes the terms of office. 13 Furthermore, members of each of these boards are assigned specific powers and duties by law, which go beyond the scope of an advisory role. Such powers include the power to establish rules and regulations and the power to issue orders and exercise exclusive control and supervision.

Accordingly, it is my opinion that these offices likely are "civil offices" pursuant to Article 5, section 10 and Article 7, section 53.

Sincerely,

..<~;~~:::::>- L. //?.A''?
LESLIE RUTLEDGE
Attorney General

12
See id. at§§ 14-263-104(e) (Rep!. 1998) (regarding hospital board members' compensation); 14-262-114(b)(5) (Rep!. 1998) (stating that members of boards of health serve without compensation, except for reimbursement for expenses incurred in attending board meetings); 14- 123-316(a) (Supp. 2017) (providing that levee board members shall receive up to $50.00 per day for attending meetings while engaging in the performance of their duties). 13 See id. at§§ 14-263-104(b) (hospital board members); 14-162-113 (county or district boards of health); 14-123-306(b) (levee boards).