Can an Arkansas quorum court reduce a county treasurer's salary mid-term, and does extra pay for added duties also count as protected 'salary'?

Plain-English summary

Representative Jimmy Gazaway asked AG Leslie Rutledge two related questions about the pay of an elected Arkansas county officer. The first asked whether a quorum court could cut a county treasurer's salary while the treasurer was still in office. The second asked whether "other compensation" the quorum court had labeled as pay for additional, agreed-on duties counted as salary, and if so, whether that extra pay was also locked in for the rest of the treasurer's term.

The AG concluded that an elected county officer's salary cannot be reduced during the officer's current term. Amendment 55, section 5 of the Arkansas Constitution says compensation may not be decreased during a current term, and Ark. Code Ann. § 14-14-1203(d) says any decrease takes effect on January 1 following the next general election that fills the office.

On the second question, whether "other compensation" for additional duties was salary or non-salary compensation was a question of fact, beyond what the AG can resolve. But the AG noted that this distinction did not actually matter for the timing rule: the same prohibition on mid-term reductions in section 14-14-1203(d) covers both "salary" and "compensation," so either way, locked-in extra pay could not be cut mid-term.

The AG also flagged that Amendment 95 had recently changed county officer terms from two years to four years starting with the 2018 general election, expanding the practical reach of the mid-term protection.

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: Which county officers were covered?
A: The salaries fixed by quorum court under Ark. Code Ann. § 14-14-1204(a) covered: the county judge, sheriff, ex officio collector of taxes (or separate collector where established by law), circuit clerk, county clerk (where established by law), assessor, treasurer, coroner, and surveyor.

Q: When can a quorum court actually reduce one of those salaries? A: Per Ark. Code Ann. § 14-14-1203(d), any decrease in the annual salary of a county officer becomes effective on January 1 following the next general election held after the decrease is fixed. The AG read this together with Amendment 55, section 5 to require that the affected officeholder's term has expired, and the seat has been refilled, before the cut takes effect.

Q: What about adding new duties to a county officer?
A: A quorum court has authority under Amendment 55, section 1(a) to impose additional duties on elected county officials. Helena-West Helena School Dist. v. Fluker held that adding duties does not by itself entitle the officer to additional compensation. But the quorum court can decide to provide extra pay for added duties, and a separation-of-powers limit and statutory-conflict limit still apply (it can't, for example, effectively redefine the office or override a state statute, see Clark County v. Miller).

Q: Does extra pay for added duties count as salary?
A: It depends on the facts. The Arkansas Supreme Court defined salary in Hestand v. Erke as payment at regular intervals or fixed compensation regularly paid (year, quarter, month, or week). Extra pay that is regular and recurring tends to be salary. Section 14-14-1203(a) treats "compensation" more broadly to cover salary, hourly compensation, expense allowances, and other remuneration, all of which still flow through quorum-court appropriation.

Q: Why did the salary-vs-compensation label not matter for the mid-term rule? A: Because Ark. Code Ann. § 14-14-1203(d) bars mid-term reductions of "annual salary or compensation" of a county officer. Whichever bucket the extra pay fell into, the timing rule was the same.

Q: How did Amendment 95 change the picture?
A: Amendment 95, section 8, codified at Ark. Const. art. 7, §§ 19, 29, and 46, extended county officer terms from two years to four years starting with the 2018 general election. That meant the mid-term protection covered a longer span before the next election could re-set salaries.

Q: Could a quorum court avoid the rule by cutting fringe benefits or stipends? A: AG opinions cited in this opinion (Ops. Att'y Gen. 2013-148, 93-036, 2009-025) had concluded that paid health insurance, education pay, and certain fringe benefits all counted as compensation, and that removing them mid-term would be an unlawful decrease. The same timing rule applied.

Background and statutory framework

Arkansas county government works through Amendment 55, which gave counties broad local legislative power "not denied by the Constitution or by law" through their quorum courts. Section 5 of Amendment 55 directs the quorum court to fix the salaries of elected county officers within statutory minimums and maximums, and prohibits decreases during a current term.

The Arkansas Code implements that mandate at Ark. Code Ann. § 14-14-1204, which sets the listing of county officers whose salaries are subject to quorum-court action and ties them to a population-based classification. Section 14-14-1203(d) provides the timing rule for any decrease.

The interplay between "salary" and "compensation" runs through prior AG opinions and case law. Ark. Code Ann. § 14-14-1204(i)(1)(A) treats the elected county treasurer's salary as compensation "for all services performed as provided by the Arkansas Constitution, by law, or by county ordinance." That phrasing, paired with Section 14-14-1203(a)'s broad definition of "compensation," produced the AG's conclusion that the timing rule covered both.

Citations and references

Constitutional provisions:

• Ark. Const. amend. 55, § 1(a) (county quorum-court legislative authority)
• Ark. Const. amend. 55, § 2(b) (no consolidation, separation, revision, or abandonment of elected offices without a vote)
• Ark. Const. amend. 55, § 5 (no decrease in compensation during current term)
• Ark. Const. amend. 95, § 8 (four-year terms for county officers)

Statutes:

• Ark. Code Ann. § 7-5-102 (general election timing)
• Ark. Code Ann. § 14-14-1203(a) (definition of compensation)
• Ark. Code Ann. § 14-14-1203(d) (effective date of decreases)
• Ark. Code Ann. § 14-14-1204(a) (listing of officers whose salaries are quorum-court fixed)
• Ark. Code Ann. § 14-14-1204(b) (population classification)
• Ark. Code Ann. § 14-14-1204(i)(1)(A) (treasurer salary as full compensation for services)

Cases:

• Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179 (plain-meaning rule)
• Hestand v. Erke, 227 Ark. 309, 298 S.W.2d 44 (definition of "salary")
• Helena-West Helena School Dist. v. Fluker, 371 Ark. 574, 268 S.W.3d 879 (2007) (extra duties do not require extra pay)
• Clark County v. Miller, 291 Ark. 203, 723 S.W.2d 820 (1987) (limits on quorum-court reassignment of duties)

Prior AG opinions referenced:

• Op. Att'y Gen. 2010-107 (timing of new salary on succession)
• Op. Att'y Gen. 2009-025 (education pay as salary)
• Op. Att'y Gen. 2013-148 (health insurance as compensation)
• Op. Att'y Gen. 93-036 (fringe benefits as compensation)
• Op. Att'y Gen. 2016-072 (additional compensation for added duties)
• Op. Att'y Gen. 97-310 (limits on quorum-court power over elected county offices)
• Op. Att'y Gen. 91-050 (limits on quorum-court power)

Source

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

Original opinion text

STATE O F ARKAN SAS
ATTO RN EY G EN ERAL
LE SLI E RUTL EDGE

Opinion No. 2018-013

June 27, 2018

The Honorable Jimmy Gazaway
State Representative
800 West Court Street
Paragould, AR 72450-5952

Dear Representative Gazaway:

This is in response to your request for an opinion concerning salaries of elected county officers. You have asked two questions, which I have slightly reworded:

Question 1: Can the salary of an elected county officer, including the treasurer, be reduced during his or her term? If not, when may the salary of an elected county position be reduced?

   Question 2: Does        additional   pay- classified      as    "other

compensation" in the county budget- that is remitted to a county treasurer for additional, agreed-upon job duties that fall outside his or her normal responsibilities constitute "salary?" If so, can that "other compensation" be reduced during his or her term? And if not, when can the "other compensation" be reduced?

RESPONSE

The answer to your first question is "no," in my opinion. The salary of an elected county officer may not be decreased during the officer's current term. Any decrease in the annual salary for an elected county office will not take effect until January 1 following the next general election for that office, when the incumbent's term-of-office expires. In response to your second question, whether the treasurer's "additional pay" is salary is a question of fact that is beyond the scope of an attorney general's opinion. But importantly, if this additional pay constitutes

323 C EN TE R STR EET. SUITE 200 · LI TTLE ROC K. ARKAN SAS 7220 1 TELEPHONE (5 01) 682 -200 7 · FAX (50 1) 682-8084 ARKAN SAS AG. GO V

The Honorable Jimmy Gazaway
State Representative
Opinion No. 2018-013
Page 2

either salary or compensation, as construed under the relevant statute, then it also cannot be reduced during the treasurer's current term.

DISCUSSION

Question 1: Can the salary of an elected county officer, including the treasurer, be reduced during his or her term? If not, when may the salary of an elected county position be reduced?

Arkansas law is clear that an elected county official's salary cannot be reduced during the office-holder's current term. The constitution obligates the county quorum courts to establish the salaries of their elected county officers, with the proviso that an elected official's salary cannot be reduced mid-term:

Compensation of each county officer shall be fixed by the Quorum Court within a minimum and maximum to be determined by law.
1
Compensation may not be decreased during a current term ....

The Arkansas Code explains this prohibition in more detail, expressly stating when such a reduction in salary can take effect:

Any decrease in the annual salary or compensation of a county officer shall not become effective until January I following a general election held after the decrease has been fixed by the quorum court of the county. 2

1
Ark. Const., amend. 55, § 5 (emphasis added). See also Ark. Code Ann.§ 14-14-1204(a) (Supp. 2017) (stating that "[t]he quorum court of each county shall fix by ordinance the annual salaries of the ... county officers within the minimums and maximums provided .... ").

2
Ark. Code Ann. § 14-14-1203(d) (Supp. 2017) (emphasis added). Because this provision must be read in light of Amendment 55's proscription against decreasing compensation "during a current term[,]" it is clear that the "general election" referenced here is the regular November election in even-numbered years (see Ark. Code Ann. § 7-5-102 (Supp. 2017)) to fill an office, the term of which is scheduled to expire at that year's end.

It should be noted that at the general election in 2016, countywide officials were elected to serve two-year terms, as has been the practice since the adoption of our current constitution. But starting with the 2018 general election, pursuant to the recently adopted Amendment 95, countywide officials will be elected to serve four-year terms. See Ark. Const., amend. 95, § 8 (codified at Ark. Const. at1. 7, §§ 19, 29, and 46 (Supp. 2017)).

The Honorable Jimmy Gazaway
State Representative
Opinion No. 2018-013
Page 3

Under the facts you have provided, I take it that the county officer at issue is one whose salary is subject to the above provisions, 3 and that the quorum court has fixed the officer's salary within the relevant statutory minimums and maximums. 4 With this in mind and based on the plain language 5 of the law quoted above, I conclude that the salary of an elected county officer cannot be reduced during his or her current term of office. Moreover, any such salary reduction made by the quorum court will not take effect until after the official's original term of office has expired and the office has been refilled at the next general election. 6

Question 2: Does additional pay-classified as "other compensation" in the county budget-that is remitted to a county treasurer for additional, agreed- upon job duties that fall outside his or her normal responsibilities constitute "salary?" If so, can that "other compensation" be reduced during his or her term? And if not, when can the "other compensation" be reduced?

I cannot definitively opine on this question, as the answer ultimately turns on a question of fact that is beyond the scope of an opinion from this office. 7 However, any compensation that is part of the county treasurer's "salary or compensation" cannot be reduced during the treasurer's current term, for the reasons explained in my previous response.

A quorum court has the authority to impose additional duties on elected county

3
See Ark. Code Ann.§ 14-14-1204(a) (listing the officers whose salaries are fixed by the county quorum court: the county judge; the sheriff and ex officio collector of taxes; the collector of taxes, where established by law; the circuit clerk; the county clerk, where established by law; the assessor; the treasurer; the coroner; and the surveyor). 4 See id. at§ 14-14-1204(b) (noting that the listed county officers' salaries "shall be classified on the basis of population" unless otherwise specifically provided).

5
See Brock v. Townsell, 2009 Ark. 224, *9, 309 S.W.3d 179, 186 (noting that if the text "conveys a clear and definite meaning, there is no need to resort to the rules of statutory construction.").

6
Accord Op. Att'y Gen. 2010-107 (opining that the new salary of an elected city officer does not take effect when the successor succeeds to the office following a vacancy in that office, but instead becomes effective "when the original term-of-office expire[ s] and [comes] up for re- election."). 7 The Attorney General cannot act as a factfinder in the issuing of opinions. See, e.g., Ops. Att'y Gen. 2017-105, 2017-086, 2016-134.

The Honorable Jimmy Gazaway
State Representative
Opinion No. 2018-013
Page 4

officers, including the county treasurer. 8 And while there is no statutory requirement that the elected county officer receive additional pay in exchange for the performance of these additional duties, 9 there is no general proscription against additional compensation. 10 While I am unaware what the "normal responsibilities" are of the county treasurer in this instance, I take it that the additional duties have been lawfully imposed, and are not outside the scope of the quorum court's general authority to require such additional duties. 11

You indicate that the county treasurer is receiving "additional pay" in remuneration for these supplementary duties. Determining if this additional pay constitutes salary or compensation, such that it cannot be decreased during the treasurer's current term-of-office, requires establishing how each term is defined with respect to elected county officials. An elected county treasurer's salary is fixed by the quorum court and is "in compensation for all services performed as provided by the Arkansas Constitution, by law, or by county ordinance." 12 And while the relevant statutory provisions do not provide a definition of "salary," the Arkansas Supreme Court defines salary as "payment at regular intervals or fixed

8
See Ark. Const., amend. 55, § 1(a) ("A county acting through its Quorum Comi may exercise local legislative authority not denied by the Constitution or by law."). Accord Op. Att'y Gen. 97- 310 (concluding that "a county quorum cou1i may, in some circumstances, impose additional duties on county elected officials .... ")and 91-050 (noting that there is no preclusion against "the addition of duties by local ordinance."). 9 See Helena-West Helena School Dist. v. Fluker, 371 Ark. 574, 578, 268 S.W.3d 879, 883 (2007) ("It has long been held by this court that the imposition of extra duties to an officer does not entitle that officer to additional compensation.") (internal citation omitted). 10 Op. Att'y Gen. 2016-072.
11
A quorum court's authority to impose additional duties on elected county officers is not without limitations. Quorum courts cannot "alter the duties of an elected county official to such a degree as to effectively 'consolidate, separate, revise, or abandon any elective office ... ' during that officer's term without a vote of the people." Op. Att'y Gen. 97-310; see also Ark. Const., amend. 55, § 2(b). Fu1iher, a quorum cou1i cannot assign or reassign duties of an elected county official in a way violative of a state statute. See Op. Att'y Gen. 97-310 (citing Clark County v. Miller, 291 Ark. 203, 723 S.W.2d 820 (1987)). Finally, the separation of powers doctrine for county government must be considered. See Op. Att'y Gen. 91-050 (quorum courts, as part of the legislative branch of government, cannot exercise an overruling influence over a county executive department official, or otherwise encroach upon or significantly interfere with executive powers). 12 Ark. Code Ann.§ 14-14-1204(i)(l)(A).

The Honorable Jimmy Gazaway
State Representative
Opinion No. 2018-013
Page 5

compensation regularly paid, as by the year, quarter, month or week." 13 And the dictionary definition of "salary" is "fixed compensation periodically paid . . . for regular work or services." 14

"Compensation," on the other hand, is a more expansive category of remuneration. Section 14-14-1203(a) states that "[a]ll compensation, including salary, hourly compensation, expense allowances, and other remunerations ... shall be made only upon specific appropriation [by the quorum court]." And while all salary includes compensation, not all compensation is considered salary. 15 Indeed, an officer's fixed salary is in compensation for all his services; thus, the officer's annual salary set by the quorum court must include all compensation received by the officer. And the maximum annual salary applicable to the officer's position-including all forms of compensation received-cannot be exceeded. 16

Turning to your question, you indicate that the additional pay is received by the treasurer in exchange for the performance of additional duties. If the treasurer is 17 performing "regular work or services" for this surplus pay, it is likely salary. It is equally likely, however, that this additional pay constitutes compensation, which, as described above, is more expansive than salary.

13
Hestand v. Erke, 227 Ark. 309, 311, 298 S.W.2d 44, 46 (I 957) (internal citation omitted). Accord Op. Att'y Gen. 2009-025 (opining that "education pay" received by a county officer at regular intervals, and likely in a single check along with her fixed salary, constitutes "salary," and therefore reducing or eliminating this additional "education pay" during the officer's current term was unlawful in light of the proscription against decreasing an officer's salary during a current term).

14
RANDOM HOUSE WEBSTER'S UNABRIDGED DICTIONARY 1693 (2d ed. 1999).

15
See Ops. Att'y Gen. 2013-148 (determining that paid health insurance provided to elected county officers is "compensation" and thus cannot be eliminated in light of section 14-14- 1203(d)'s prohibition on decreasing officers' "salary or compensation" during an officer's current term); 93-036 (opining that certain fringe benefits constitute "compensation," and thus "[i]f the removal of the fringe benefits in question would in fact constitute a decrease in 'compensation,' such a decrease cannot become effective until the next general election.").

16
See Ark. Code Ann.§ 14-14-1204(a). Accord Op. Att'y Gen. 2016-072.
17
While I am unaware of the specific payment arrangement by which the county treasurer receives this "other compensation," if it is received by the treasurer at regular intervals, perhaps in a single check with the fixed salary, this is further evidence it constitutes "salary." See Op. Att'y Gen. 2009-025.

The Honorable Jimmy Gazaway
State Representative
Opinion No. 2018-013
Page 6

Importantly, however, whether the county treasurer's "additional pay" constitutes "salary" or "compensation" does not affect the application of section 14-14- 1203( d)' s timing restriction. If the "other compensation" is factually characterized as salary or compensation, then the restrictions on and effective date of any reduction by the quorum court discussed in my response to your first question will apply. This will require a case-by-case determination. And determining these factual issues is beyond the scope of an attorney general's opinion.

~~
LESLIE RUTLEDG E
Attorney General