Does the Arkansas State Claims Commission have jurisdiction over a claim against APERS about who controls retirement-system investments?

Plain-English summary

Kathryn Irby, the Director of the Arkansas State Claims Commission, asked the Attorney General whether the Commission had jurisdiction over a particular claim against the Arkansas Public Employees Retirement System (APERS) regarding the authority to direct investments. She made the request on remand from the Claims Review Subcommittee of the Arkansas Legislative Council, which had remanded the claim to the Commission with instructions to seek the AG's opinion.

Attorney General Leslie Rutledge declined to issue an opinion. Two reasons combined to require the declination.

First, Ark. Code Ann. § 19-10-211(a) provides that "[a] decision of the Arkansas State Claims Commission may be appealed only to the General Assembly." The Arkansas Supreme Court has confirmed that the Commission is "an arm of the General Assembly and the General Assembly has total control over the determination of, and subsequent funding for, payment of the 'just debts and obligations of the state.'" Hanley v. Arkansas State Claims Commission, 333 Ark. 159 (1998); Fireman's Ins. Co. v. Arkansas State Claims Comm'n, 301 Ark. 451 (1990). With the matter pending on legislative appeal, the AG was being asked to opine on a question already in another branch's hands.

Second, the AG follows a long-standing policy of declining to issue formal opinions on matters pending in litigation or administrative proceedings. That policy, restated across decades of opinions (e.g., Op. Att'y Gen. 2004-207 and 2002-189), recognizes that opinions can prejudice or be perceived to prejudice live disputes. The Claims Commission appeal to the General Assembly fits that pattern, even though the General Assembly is technically a legislative branch rather than a court.

The opinion's net effect was procedural: the Subcommittee's remand instruction (asking the Commission to seek an AG opinion) was answered with an explanation of why the AG could not act. The substantive question (jurisdiction over an APERS investment-authority claim) remained open, to be resolved through the legislative appeal process.

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

The Arkansas State Claims Commission hears claims against the State and its agencies, including for breaches of contract, torts under Ark. Const. art. 5, § 20 (sovereign immunity), and similar matters. Its decisions are not subject to ordinary appellate review in court. Ark. Code Ann. § 19-10-211(a) provides that "[a] decision of the Arkansas State Claims Commission may be appealed only to the General Assembly." The Claims Review Subcommittee of the Legislative Council typically handles those appeals.

The Arkansas Supreme Court has read the legislative appeal track to mean the Commission is functionally part of the legislative branch. Fireman's Ins. Co. v. Arkansas State Claims Comm'n, 301 Ark. 451 (1990), described the Commission as "an arm of the General Assembly" with the General Assembly retaining "total control over the determination of, and subsequent funding for, payment of the 'just debts and obligations of the state.'" Hanley v. Arkansas State Claims Commission, 333 Ark. 159 (1998), reaffirmed that approach.

The policy of declining to opine on pending matters is not statutory; it is the AG's institutional rule. The rationale is twofold: avoid the appearance of intervening in another branch's decision-making, and avoid prejudicing the parties whose dispute is live. The rule applies whether the pending forum is a court, the Claims Commission, or (as here) the General Assembly itself on appeal.

Why APERS investment authority is a live and recurring question

The opinion did not analyze the underlying claim, but for context: APERS, as a public-employee pension system, has statutory governance and statutory investment-authority provisions. Disputes about who can direct specific investments, or whether particular investment decisions complied with statutory or fiduciary obligations, recur across many state pension systems. Because such claims often involve large sums and questions of statutory interpretation, having a clear forum for resolution matters. The legislative appeal track in section 19-10-211(a) is the constitutional answer in Arkansas.

Common questions

Why did the legislative subcommittee remand to the Commission for an AG opinion?

Subcommittees on appeal sometimes want a legal-policy view from the AG before voting. Whether that mechanism is helpful or workable is a separate question. In this case, the AG's declination meant the Subcommittee had to decide the appeal on its own.

Was the AG saying the Commission had no jurisdiction, or did she just refuse to weigh in?

She just refused to weigh in. The opinion did not analyze the merits of the jurisdictional question. The substantive answer was left for the General Assembly to decide on appeal.

Could the AG have answered if the matter were not pending on appeal?

Maybe. If a similar jurisdictional question had been asked in the abstract, before any specific claim was filed, or after final resolution of the pending claim, the AG could have considered it. The pending nature of the appeal was the key obstacle.

What happens to the APERS investment-authority issue going forward?

The opinion did not address that. The Subcommittee, having received this declination, would have proceeded to decide the appeal under whatever standards it normally applies. Future similar disputes would either be filed in the Commission again or might be addressed in legislation, depending on how the Subcommittee resolved this case.

Citations

Ark. Code Ann. § 19-10-211(a) (Repl. 2016); Hanley v. Arkansas State Claims Commission, 333 Ark. 159, 970 S.W.2d 198 (1998); Fireman's Ins. Co. v. Arkansas State Claims Comm'n, 301 Ark. 451, 784 S.W.2d 771 (1990); Ops. Att'y Gen. 2004-207, 2002-189.

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2018-082
July 24, 2018
Kathryn Irby, Director
Arkansas State Claims Commission
101 E. Capitol Avenue, Suite 410
Little Rock, AR 72201-3823
Dear Ms. Irby:
I am writing in response to your request for an opinion at the direction of the Claims Review Subcommittee of the Arkansas Legislative Council ("Subcommittee"). As background for your request, you report that the Arkansas State Claims Commission ("Claims Commission") dismissed a particular claim for lack of jurisdiction and that the claimant filed a notice of appeal. You further report that the Subcommittee heard argument from the parties to the appeal and remanded the claim to the Claims Commission with instructions to seek an Attorney General's opinion on a question of jurisdiction. In compliance with the Subcommittee's instructions, the Claims Commission asks for my opinion on the following question, which I have paraphrased slightly:
Does the Claims Commission have jurisdiction to consider a claim against the Arkansas Public Employees Retirement System regarding the authority to direct investments?

RESPONSE
Arkansas law expressly provides that decisions of the Arkansas State Claims Commission may be appealed only to the Arkansas General Assembly. Consequently, I am unable to render an opinion pertaining to the claim at hand, which is currently pending on appeal to the General Assembly. Although my office, of course, stands ready to provide requested legal assistance to state officers in the performance of their duties, the issue before the General Assembly is a matter that falls solely within the province of that body and its appropriate committees.

Indeed, the long-standing policy of the Attorney General's office to decline to issue formal opinions on matters that are pending in litigation or in administrative proceedings dictates that I decline to address your question. This policy equally applies to matters before the Claims Commission that are pending ultimate resolution by the General Assembly.

I regret that I could not be of assistance in this matter. Please feel free to contact me if I can help you in some other respect.

Sincerely,

LESLIE RUTLEDGE
Attorney General