If someone in Arkansas has a felony conviction (or one that has been expunged), can they still run for public office or become a certified police officer?

Plain-English summary

Representative Mike Holcomb asked Attorney General Leslie Rutledge three related questions about whether a felony conviction, or one that has been expunged, blocks a person from running for office in Arkansas, becoming a certified police officer, or holding any "office of trust."

The AG's analysis split into two tracks.

For elected and appointed public office generally, Article 5, section 9 of the Arkansas Constitution disqualifies anyone "convicted of embezzlement of public money, bribery, forgery, or other infamous crime," and the section defines "infamous crime" to include any felony, abuse of office, tampering, and certain misdemeanors involving deceit or fraud (including misdemeanors related to the election process). So an unexpunged felony conviction was a hard bar to public office. The AG also pointed to Ark. Code Ann. section 16-90-112(b), which adds that a convicted felon "shall be excluded from every office of trust or profit and from the right of suffrage."

But a valid expungement under the Comprehensive Criminal Record Sealing Act of 2013 (Ark. Code Ann. § 14-90-1401 et seq., despite the codification reference in the opinion text) "restores all privileges and rights" and treats the underlying conduct "as a matter of law never to have occurred." The Arkansas Supreme Court applied that statutory text in Haile v. Johnston, 2016 Ark. 52, holding that a sealed misdemeanor conviction did not block eligibility for sheriff. The AG read Haile to mean that, ordinarily, a person with a properly sealed record is restored to full public-office eligibility.

For law enforcement certification, the AG reached a different conclusion. Ark. Code Ann. section 12-9-106(b)(2) provides that "no person who pleads or is found guilty of a felony shall be eligible to be appointed or certified as a law enforcement officer." That language reaches anyone who has pleaded or been found guilty, regardless of the eventual disposition or expungement. The AG found persuasive support in Landers v. Arkansas Department of Education, 2010 Ark. App. 312, where the Court of Appeals upheld denial of a teaching license to someone whose conviction had been expunged, and in dictum from Doe v. Arkansas Department of Human Services, 357 Ark. 413, addressing similar elder-care employment disqualifications. The "unless otherwise specifically provided by law" clause of the sealing statute (Ark. Code Ann. § 16-90-1417(a)(1)) leaves the section 12-9-106(b)(2) bar in place.

A clarifying note on scope: the law enforcement certification rule under section 12-9-106 applies only to appointed law enforcement officers, because the statutory definition of "law enforcement officer" in section 12-9-102(2) excludes officers "elected by a vote of the people." Elected sheriffs, constables, and similar officers are governed by the general public-office rules under Article 5, section 9, not the certification statute, so an expungement following Haile would generally restore their eligibility.

The AG closed by noting that the statutory landscape "could be far clearer in its meaning" and suggested that the legislature consider amendments specifying what effect, if any, an expungement has on disqualifications like section 12-9-106(b)(2).

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

Three layers of Arkansas law worked together to produce the result.

First, the public-office disqualification. Article 5, section 9 of the Arkansas Constitution disqualifies anyone convicted of embezzlement of public money, bribery, forgery, or other "infamous crime" from holding "any office of trust or profit in this state." The provision defines "infamous crime" to include any felony, abuse of office, tampering, and any misdemeanor involving deceit, fraud, or false statement (including election-related misdemeanors). Article 3, section 6 adds that anyone convicted of fraud, bribery, or other corrupt election violations is "disqualified from holding any office of trust or profit." Section 7-5-207(b) of the Code requires that a candidate be qualified and eligible at the time of filing, and section 7-6-102(b) and (c) require candidates to certify under oath that they have not been convicted of a felony, with a Class D felony penalty for falsification.

Second, the sealing/expungement framework. The Comprehensive Criminal Record Sealing Act of 2013 (codified primarily in Ark. Code Ann. ch. 90 of Title 16, with various definitions in section 16-90-1404) repealed the Uniform Expungement Act and established a unified procedure for sealing records. The key effect provisions are sections 16-90-1417(a)(1) and (b)(1):

• "A person whose record has been sealed under this subchapter shall have all privileges and rights restored, and the record that has been sealed shall not affect any of his or her civil rights or liberties unless otherwise specifically provided by law."
• "Upon the entry of the uniform order, the person's underlying conduct shall be deemed as a matter of law never to have occurred . . . ."

Third, the law-enforcement-specific bar. Section 12-9-106(b)(2) provides: "no person who pleads or is found guilty of a felony shall be eligible to be appointed or certified as a law enforcement officer." Section 12-9-102(2) limits that definition to appointed officers, carving out elected ones. The Arkansas Commission on Law Enforcement Standards and Training Rule 1002(3)(d) reinforces this: "[t]he fact that an individual has received a pardon, or their record has been expunged shall not release the individual from having a felony record for the purposes of this regulation."

How Haile v. Johnston shaped the public-office answer

Haile v. Johnston, 2016 Ark. 52, was the controlling decision for the AG's first answer. There, an individual with a sealed misdemeanor conviction was running for sheriff, and an opponent challenged his eligibility. The Arkansas Supreme Court held that, "based on the plain language of the statute at issue, as a matter of law, Johnston's misdemeanor conviction never occurred, Johnston never had a record, and all of his privileges and rights are restored." That reading came from the same sealing-statute text now codified at section 16-90-1417, which "restores all privileges and rights" and treats the conduct as never having occurred. The Court relied on Powers v. Bryant, 309 Ark. 568 (1992), and Tyler v. Shackleford, 303 Ark. 662 (1990), as earlier examples of giving expungement statutes their plain-text effect.

Note the cross-reference between this opinion and the underlying authorities. Haile and the supporting cases are Arkansas Supreme Court (Ark.) decisions, citing the Southwestern Reporter regional reporter (S.W.2d, S.W.3d), and Landers is an Arkansas Court of Appeals decision (Ark. App.). None of these are U.S. Supreme Court cases.

Why expungement does not unlock law enforcement certification

The AG read section 12-9-106(b)(2)'s "pleads or is found guilty" language as reaching the moment of plea or finding, not the eventual conviction status. Once a person has pleaded guilty or been found guilty, the statutory disqualification attaches, and an expungement of the resulting record does not undo the historical fact of the plea or finding.

The AG drew analogical support from Landers v. Arkansas Department of Education, 2010 Ark. App. 312, where the Court of Appeals upheld denial of a teaching license under section 6-17-410(c). That statute uses the same "pleaded guilty or no lo contendere to or has been found guilty" phrasing, and the court read it to bar licensure even after expungement. The Doe v. Arkansas Department of Human Services dictum, 357 Ark. 413, on the elder-care disqualification statute (then-section 20-33-205(a)(3)(A), now superseded by Acts 2009, No. 762, codified at section 20-38-105) reinforced the same approach.

Importantly, Acts 2009 No. 762 amended elder-care disqualifications to expressly say that an expunged, pardoned, or otherwise sealed record does not disqualify. The legislature thus showed it knew how to carve out expungements when it wanted to. Section 12-9-106 contained no such carve-out, and the AG took that legislative silence as deliberate.

Common questions

If a felony was expunged, could a person run for sheriff or county judge?

The AG concluded yes, ordinarily, based on Haile v. Johnston. A valid sealing order under the Comprehensive Criminal Record Sealing Act restored "all privileges and rights" and treated the underlying conduct as never having occurred. So eligibility for elected office was restored unless another statute "specifically provided" otherwise.

What if the person was already a certified police officer when the felony plea happened?

The opinion did not address whether existing certification could continue after a plea or finding of guilt. It addressed eligibility for appointment or certification going forward.

Does the law-enforcement bar apply to elected sheriffs and constables?

No. Section 12-9-102(2) excludes elected officers from the "law enforcement officer" definition for purposes of section 12-9-106. So the certification statute does not reach elected sheriffs and constables. They are governed by the general Article 5, section 9 public-office rule and would be eligible if their record was validly expunged.

What about teaching licenses, nursing-home work, or other regulated employment?

The opinion noted that other licensing and employment statutes have their own felony rules. Teaching: section 6-17-410(c) (Landers held expungement does not cure). Elder care: section 20-38-105(b) (post-2009 statute does cure expunged offenses). Each statutory scheme has to be checked individually.

Did the opinion say anything about pardons?

The Commission on Law Enforcement Standards and Training Rule 1002(3)(d) (cited by the AG) provides that a pardon, like an expungement, does not remove the felony for certification purposes. The AG did not analyze pardons separately as to public office under Article 5, section 9.

Citations

Ark. Const. art. 5, § 9; Ark. Const. art. 3, § 6; Ark. Code Ann. § 7-5-207(b); § 7-6-102(b), (c); § 14-90-1401 et seq.; § 16-90-112(b); § 16-90-902(a) (repealed); § 16-90-1404(4)(A); § 16-90-1417(a)(1), (a)(2), (b)(1); § 16-93-303(e); § 12-9-102(2); § 12-9-106(b)(2); § 6-17-410(c); § 20-33-205(a)(3)(A) (repealed); § 20-38-105(b); Acts 2013, No. 1460; Acts 2009, No. 762; May v. Edwards, 258 Ark. 871, 529 S.W.2d 647 (1975); City of Jacksonville, Arkansas v. Smith, 2018 Ark. 87; Haile v. Johnston, 2016 Ark. 52, 482 S.W.3d 323; Powers v. Bryant, 309 Ark. 568, 832 S.W.2d 232 (1992); Tyler v. Shackleford, 303 Ark. 662, 799 S.W.2d 789 (1990); Landers v. Arkansas Department of Education, 2010 Ark. App. 312, 374 S.W.3d 795 (2010); Doe v. Arkansas Department of Human Services, 357 Ark. 413, 182 S.W.3d 107 (2004); Arkansas Commission on Law Enforcement Standards and Training Rule 1002(3)(d); Ops. Att'y Gen. 2013-133, 2011-080, 2006-070, 2003-057.

Source

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

Original opinion text

Opinion No. 2018-022
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 the following questions, which I have slightly paraphrased, concerning the legal restrictions on running for and serving in public office:
1) Does an individual who has a prior felony conviction or a felony conviction that has been expunged have the right to run for and serve in a public office of trust in the State of Arkansas?
2) Does a person with an expunged felony conviction meet the standard requirements for a policeman if he did not get his gun rights or voting rights reinstated?
3) What are the restrictions on running for public office in law enforcement and other public offices of trust?

RESPONSE
In response to Questions 1 and 3, Arkansas law disqualifies anyone convicted of a felony from running for or holding public office, but a valid expungement ordinarily restores eligibility for public office. In response to Question 2, a person who pleads guilty to or is found guilty of a felony is ineligible to be appointed or certified as a law enforcement officer.

DISCUSSION
Question 1: Does an individual who has a prior felony conviction or a felony conviction that has been expunged have the right to run for and serve in a public office of trust in the State of Arkansas?
Question 3: What are the restrictions on running for public office in law enforcement and other public offices of trust?

Because these questions both concern eligibility for elected public office, I will address them together. The Arkansas Constitution disqualifies anyone convicted of a felony or other "infamous crime" from holding public office:
(a) No person convicted of embezzlement of public money, bribery, forgery, or other infamous crime is eligible to the General Assembly or capable of holding any office of trust or profit in this state.
(b) As used in this section, "infamous crime" means:
(1) A felony offense;
(2) Abuse of office as defined under Arkansas law;
(3) Tampering as defined under Arkansas law; or
(4) A misdemeanor offense in which the finder of fact was required to find, or the defendant to admit, an act of deceit, fraud, or false statement, including without limitation a misdemeanor offense related to the election process.

Additionally, "[n]o person's name shall be placed upon the ballot as a candidate for any public office in this state at any election unless the person is qualified and eligible at the time of filing, or as otherwise may be provided by law, as a candidate for the office to hold the public office for which he or she is a candidate . . . ."

The Arkansas Supreme Court has observed that "[t]he reason one who has been convicted of an infamous crime is prevented from taking office is because he is thereby rendered ineligible just as he would be if he did not possess other qualifications required by law." The lack of a conviction covered by Article 5, section 9 is therefore considered a legal prerequisite to holding office just like other restrictions such as age and residency.

Echoing the Arkansas Constitution, the Arkansas Code provides that "[e]very person convicted of bribery or felony shall be excluded from every office of trust or profit and from the right of suffrage in this state." It is therefore clear that any felony or other offense constituting an "infamous crime" under Article 5, section 9 generally renders the convicted person ineligible to run for or hold public office.

But you have also asked about a record that has been expunged. A valid expungement ordinarily restores eligibility for public office. Under the Comprehensive Criminal Record Sealing Act of 2013 (Ark. Code Ann. § 14-90-1401 et seq.), a person whose record has been sealed "shall have all privileges and rights restored" and "the underlying conduct shall be deemed as a matter of law never to have occurred":
A person whose record has been sealed under this subchapter shall have all privileges and rights restored, and the record that has been sealed shall not affect any of his or her civil rights or liberties unless otherwise specifically provided by law.

Upon the entry of the uniform order, the person's underlying conduct shall be deemed as a matter of law never to have occurred, and the person may state that the underlying conduct did not occur and that a record of the person that was sealed does not exist.

In Haile v. Johnston, the Arkansas Supreme Court looked to the "plain language" of this statute and held that an individual with a sealed conviction that would otherwise have rendered him ineligible for the office of county sheriff was eligible to run for and hold that office:
. . . based on the plain language of the statute at issue, as a matter of law, Johnston's misdemeanor conviction never occurred, Johnston never had a record, and all of his privileges and rights are restored. Accordingly, the plain language dictates that it is as if Johnston never had the misdemeanor conviction. Thus, Johnson is eligible to run for and hold office.

Question 2: Does a person with an expunged felony conviction meet the standard requirements for a policeman if he did not get his gun rights or voting rights reinstated?

Regardless of whether gun or voting rights were restored, if the person in question pleaded guilty to or was found guilty of a felony, then, in accordance with Ark. Code Ann. § 12-9-106(b)(2), he is not "eligible to be appointed or certified as a law enforcement officer." And it appears that an expungement does not remove this disqualification.

Under the Comprehensive Criminal Record Sealing Act, an expunged ("sealed") record will not affect a person's civil rights or liberties "unless otherwise specifically provided by law." It seems that section 12-9-106(b)(2), noted above, serves as one example of a law that limits a person's rights despite an expunged record.

Another example is Ark. Code Ann. § 6-17-410(c), regarding teacher licensure. This statute provides that a license shall not be issued to any person who has pleaded guilty or no lo contendere to or has been found guilty of any one of several enumerated disqualifying criminal offenses. In Landers v. Arkansas Department of Education, the Arkansas Court of Appeals upheld the State Board of Education's decision to deny a teacher's license to an individual who pleaded nolo contendere to a disqualifying offense that had been expunged. The Court concluded that the General Assembly clearly expressed its intent under section 6-17-410(c) "for all who have pled guilty or no lo contendere to a disqualifying offense to be prohibited from receiving a teaching license, regardless of whether the individual's record has since been expunged." The Court reasoned that "[b]y referencing both those who have pled guilty or nolo contendere in addition to those who have been found guilty, the General Assembly intended to include those whose records have been expunged as those ineligible for licensure due to criminal conduct."

The Arkansas Supreme Court in dictum addressed the same issue in Doe v. Arkansas Department of Human Services. Doe involved a Department of Human Services (DHS) policy of considering expunged criminal records when making determinations regarding employment in nursing homes. The plaintiffs argued that the DHS policy violated the "second chance" policy under the then-effective expungement statute, Ark. Code Ann. § 16-90-902(a) (Supp. 2001). The Court observed that under that statute, an individual whose record has been expunged will have "'all privileges and rights restored . . . unless otherwise specified by law.'" The Court commented that the plaintiffs' argument ignored the Elder Care Law's enumeration of offenses that will disqualify a person from employment in a long-term care facility. Importantly, the statute cited by the Court (Ark. Code Ann. § 20-33-205(a)(3)(A)), like the statute before us concerning law enforcement officers (Ark. Code Ann. § 12-9-106(b)(2)), disqualified those who have pleaded guilty to or been found guilty of the enumerated offenses. The Court obviously was of the view that an expungement does not remove the disqualification.

The appellate courts have not specifically addressed section 12-9-106(b)(2), or the question of one's eligibility to become a certified law enforcement officer after having pleaded guilty to or been found guilty of a felony. The above cases indicate that if faced with the question, the courts would hold that the specific prohibition under this statute will control and will not be overridden by the expungement laws. But the legislation could be far clearer in its meaning. Uncertainty in this area could be avoided if the legislature would clarify the statute and expressly indicate what — if any — effect an expungement will have on this statute, and on other, similar disqualifying statutes.

Sincerely,

LESLIE RUTLEDGE
Attorney General