Does an Arkansas state employee who moonlights as a part-time police officer have to take annual leave to testify in court?

Plain-English summary

Representative Chris Richey asked the AG how the state employee leave statute (Ark. Code Ann. § 21-4-213, part of the Uniform Attendance and Leave Policy Act) applies when a state employee moonlights as a part-time law enforcement officer and is subpoenaed to testify in connection with that part-time work. The wrinkle: the part-time employer pays the moonlighter for the time spent testifying, even though that time falls within the employee's regular state work day.

The AG concluded the moonlighter is a fact witness, not a "paid expert witness," even though he gets paid to testify. The statute treats fact witnesses differently from paid expert witnesses regardless of compensation. Therefore, under § 21-4-213(b)(1)(B), he is entitled to his state salary while testifying, and under § 21-4-213(b)(2), he is not required to take annual leave, unless he is a "party to the matter" (which is fact-specific and beyond the AG's reach).

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.

How § 21-4-213 worked in 2018

The statute had two operative subsections:

(b)(1): Salary entitlement. A state employee subpoenaed to testify keeps his state salary if he is a witness in a matter:

• (A) within the scope of his state employment, OR
• (B) outside the scope of his state employment, AND he is not serving as a paid expert witness or is not a party to the matter.

(b)(2): Annual leave requirement. The state employee is required to take annual leave only if the matter is outside his scope of state employment AND he is serving as a paid expert witness or is a party.

So the salary entitlement and the leave requirement are flip sides of the same coin. The state pays you for testifying as long as you are not (a) a paid expert outside your state job or (b) a party.

What is a "paid expert witness"? The statute did not define it. The AG looked to Black's Law Dictionary's definition of "expert witness" (one "qualified by knowledge, skill, experience, training, or education to provide a scientific, technical, or other specialized opinion") and "expert-witness fee" (remuneration for "professional services"). The AG also cited Ark. R. Evid. 702.

The AG distinguished a paid expert from a fact witness who happens to have specialized training. A police officer testifying about events he personally witnessed is a fact witness, even though his training makes him a more effective observer and witness. He is testifying based on personal knowledge, not providing court-qualified opinion testimony. The fact that his moonlighting employer pays him for the time does not transform him into an expert witness for purposes of § 21-4-213.

The "party to the matter" branch. The AG declined to resolve whether the hypothetical employee was a "party," because that turns on the specific case caption and procedural posture. The opinion did set out the general definition from Norman v. Norman: a party is "a person whose name is designated on record as plaintiff or defendant" with "right to control proceedings, to make defense, to adduce and cross-examine witnesses, and to appeal." Anyone affected indirectly is "interested," not a party.

Common questions

I work for the state and also part-time for a city police department. I'm subpoenaed to testify about a city case. Do I have to take leave?
Under the 2018 statute as the AG read it, no, unless you are a party to the case. Your state salary continues while you testify, and you don't burn vacation days. Your part-time employer can still pay you separately for the testimony.

Does it matter if my part-time employer pays me to testify?
No, not for purposes of the leave statute. The AG specifically addressed this concern. The fact-witness vs paid-expert distinction does not turn on whether you receive compensation, but on whether you are providing court-qualified opinion testimony based on specialized knowledge.

What if I'm testifying as a use-of-force expert in someone else's case?
That sounds like a paid-expert situation. If a court has qualified you as an expert and the case is outside your state job, you would have to take annual leave for the testimony.

What does "scope of state employment" mean?
The opinion does not define it directly, but treats it functionally as: testimony arising from work you did as part of your state job. Testimony about your moonlighting work is outside that scope.

Can my state employer require me to disclose the subpoena?
Yes, generally. The Uniform Attendance and Leave Policy Act governs leave requests and recordkeeping; standard agency policies apply.

Background and statutory framework

The Uniform Attendance and Leave Policy Act (Ark. Code Ann. § 21-4-201 et seq.) governs leave for "all affected state employees of agencies, boards, and commissions." A state employee under § 21-4-203(8) is "a person regularly appointed or employed in a position of state service by a state agency . . . for which he or she is compensated on a full-time basis . . . ." State agencies include all agencies, departments, boards, commissions, bureaus, councils, state-supported institutions of higher education, or other agencies, except those expressly excluded.

The AG's interpretive method here used the canon that when the legislature uses a phrase of "well-known legal signification," it is presumed to have used the language in that sense. Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 656 (1979); Werbe v. Holt, 217 Ark. 198, 229 S.W.2d 225 (1950). "Expert witness" is such a term: lawyers and judges know what it means in the rules of evidence, and the General Assembly is presumed to have used it the same way.

Citations

• Ark. Code Ann. § 21-4-201 et seq. (Uniform Attendance and Leave Policy Act)
• Ark. Code Ann. § 21-4-203(8), (11) (definitions of "employee" and "state agency")
• Ark. Code Ann. § 21-4-213 (court and jury leave for state employees)
• Ark. R. Evid. 702 (expert witness qualification)
• Norman v. Norman, 347 Ark. 682, 66 S.W.3d 635 (2002) (definition of "party")
• Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 656 (1979) (well-known legal terms)
• Werbe v. Holt, 217 Ark. 198, 229 S.W.2d 225 (1950) (same)
• Black's Law Dictionary 1838 (10th ed. 2014) (definition of expert witness)
• Op. Att'y Gen. 2016-032 (AG cannot fact-find)

Source

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

Original opinion text

Opinion No. 2017-119
March 1, 2018
The Honorable Chris Richey
State Representative
P.O. Box 2356
West Helena, AR 72390-0356

Dear Representative Richey:

This is in response to your request for an opinion concerning Ark. Code Ann. § 21-4-213 (Repl. 2016) as it relates to court and jury leave for state employees. You state that "[a] question of application arises when a person is employed as both a state employee and works as a part-time law enforcement officer." As further background, you note that when this individual testifies under a subpoena, he is paid by his employing law enforcement agency "for the time spent providing testimony."

Against this background, you have asked the following questions:

1) Is a law enforcement officer considered a paid expert witness under this provision?

2) Is a state employee required to take annual leave to comply with a subpoena issued as a result of employment as a part-time law enforcement officer if the subpoena is not the result of the work performed on behalf of the state agency?

RESPONSE

I take it that your first question refers to a hypothetical state employee who also works as a part-time law enforcement officer, and who is from time to time subpoenaed to testify in connection with that part-time employment. Further, you state that the part-time employer compensates him for the time he spends providing such testimony during his regular state-employment work day. The question is whether such a state employee would be considered a "paid expert witness" for purposes of Ark. Code Ann. § 21-4-213.

It appears, based on the limited facts before me, that the state employee is not a "paid expert witness" as contemplated by section 21-4-213. Rather, it appears the employee is testifying as a lay, fact witness. And fact witnesses, regardless of whether they receive payment to testify, are outside the scope of section 21-4-213, in my opinion. With regard to your second question, once it is established that the state employee would not be considered a "paid expert witness" for purposes of section 21-4-213, the inquiry turns to whether he is a "party to the matter" for which he is subpoenaed. That is a factual question that cannot be resolved in the context of an Attorney General's opinion. I can only set out the general principles with regard to what constitutes a "party" to a matter.

DISCUSSION

Question 1: Is a law enforcement officer considered a paid expert witness under this provision?

The "Uniform Attendance and Leave Policy Act" ("the Act") governs the attendance and leave policy for "all affected state employees of agencies, boards, and commissions . . . ." The Act provides in relevant part:

If an employee is subpoenaed as a witness to give a deposition or testimony in state or federal court, at a hearing, or before any body with power to issue a subpoena, the employee is:

(1) Entitled to his or her salary if the employee is a witness in a matter:
(A) Within the employee's scope of state employment; or
(B) Outside the employee's scope of state employment and the employee is not serving as a paid expert witness or is not a party to the matter; and

(2) Required to take annual leave to attend the deposition, hearing, or appear in court only if the matter is outside of the employee's scope of state employment and the employee is serving as a paid expert witness or is a party to the matter.

Your question concerns the application of the above to a state employee who is subpoenaed to provide testimony that is outside the scope of his state employment. And because this state employee is paid by his employing law enforcement agency for the time he spent providing this testimony, I gather your question is prompted by a concern that this set of facts may render the state employee a "paid expert witness," such that he is not entitled to his salary and must take annual leave pursuant to sections 21-4-213(b)(1)(B) and (b)(2).

In my opinion, however, these limited facts do not indicate that the individual in question is a "paid expert witness." Section 21-4-213 does not define the term "paid expert witness," but the term "expert witness" is a legal term of art that generally means:

A witness qualified by knowledge, skill, experience, training, or education to provide a scientific, technical, or other specialized opinion about the evidence or a fact issue.

Additionally, an "expert-witness fee" is remuneration paid to an expert for his "professional services."

I believe it is proper to look to these definitions when determining whether a particular witness is a "paid expert witness" for purposes of section 21-4-213.

There is no indication under the limited facts before me that the hypothetical state employee at issue is being paid in exchange for providing a "specialized opinion" based on his "knowledge, skill, experience, training, or education . . . ." Rather, it appears he is testifying as a lay, fact witness. And fact witnesses, regardless of whether they receive payment to testify, are outside the scope of section 21-4-213, in my opinion. To be sure, a law enforcement officer may bring his specialized training to bear when testifying as a fact witness. But that training, standing alone, does not mean that he is testifying as an "expert witness." It appears that the employee under your hypothetical is testifying based on personal knowledge of the events referenced by the subpoena. An "expert witness," on the other hand, is qualified by a court to provide opinion testimony, which need not be based on personal knowledge.

The limited facts before me therefore offer no indication that the individual in question is a "paid expert witness" as contemplated by section 21-4-213.

Question 2: Is a state employee required to take annual leave to comply with a subpoena issued as a result of employment as a part-time law enforcement officer if the subpoena is not the result of the work performed on behalf of the state agency?

Having established that the facts before me do not suggest the state employee would be considered a "paid expert witness" for purposes of section 21-4-213, it appears that the answer to your second question is contingent upon whether the individual is considered a "party to the matter" for which he is subpoenaed. And whether the individual is a party to a given matter cannot be resolved based on the limited facts before me.

However, I can set out the general principles with regard to what constitutes a "party" to a matter. A "party" is regarded as:

[A] person whose name is designated on record as plaintiff or defendant. [The] term, in general, means one having right to control proceedings, to make defense, to adduce and cross-examine witnesses, and to appeal from a judgment.

And the technical term "party" in this context refers to:

[T]hose by or against whom a suit is brought, whether in law or equity, the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons; all others who may be affected by the suit, indirectly or consequently, are persons interested, but not parties.

Given the limited facts before me, I cannot ascertain whether the individual is a "party to the matter" at issue. Simply knowing that the individual was subpoenaed as a result of his part-time employment is an insufficient basis to decide the question. I therefore cannot determine whether section 21-4-213 would require the state employee at issue to take annual leave. I must instead refer you to the general authority above regarding the meaning of the term "party" to a matter.

Sincerely,

LESLIE RUTLEDGE
Attorney General