Can a local Arkansas K-12 school administrator or employee also serve on the board of trustees of a state university?

Plain-English summary

Representative Danny Watson asked whether a public school administrator, principal, or employee could serve on the board of trustees of a publicly funded state university or college. The AG's answer was a "qualified yes."

Three sources of dual-office holding restrictions could apply, per Byrd v. State, 240 Ark. 743 (1966): (1) constitutional prohibitions, (2) statutory prohibitions, and (3) the common-law doctrine of incompatibility. The AG looked at each:

• Constitutional prohibitions. None apply to this combination.
• Statutory prohibitions. A footnote noted that state employees (those who work for state-run primary and secondary schools, like the schools for the deaf and blind) are barred from serving on the boards of trustees of Arkansas State, Arkansas Tech, Southern Arkansas University, Henderson State, and the University of Central Arkansas under §§ 6-65-201, 6-65-301, 6-65-401, 6-66-101, and 6-67-102. But local school district employees, the focus of the question, are not "state employees" for this purpose, so these statutes do not apply.
• Common-law incompatibility doctrine. Under Tappan v. Helena Federal Savings & Loan, 193 Ark. 1023 (1937), and Thompson v. Roberts, 333 Ark. 544 (1998), two offices are incompatible if (a) one is subordinate to the other or under its supervisory power, (b) the incumbent of one can remove or audit the other, or (c) the duties are inherently inconsistent. The AG generally did not see a facial conflict between local school district duties and university trustee duties; neither is subordinate to the other.

But because the AG cannot act as a fact-finder, the actual conflict-of-interest analysis must run on the specific facts of each appointment. A reviewing court would still consider whether the particular dual service is incompatible.

Currency note

This opinion was issued in 2019. 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: What is the common-law "doctrine of incompatibility"?
A: It is the rule that one person cannot hold two offices when the duties or functions are inconsistent. Thompson v. Roberts states the test. Examples include one office that supervises or audits another, or duties that conflict in practice.

Q: Why are state-employees on five named state university boards specifically barred?
A: Sections 6-65-201, 6-65-301, 6-65-401, 6-66-101, and 6-67-102 each contain a clause making "employees of any state department, state agency, or state institution" ineligible for trustee service on those particular boards. The bar is a statutory choice, not a uniform rule across all state universities. A local school district employee is not a "state department" employee.

Q: Could a specific case still be barred even if the general answer is yes?
A: Yes. The AG explicitly said only a fact-finder can make the ultimate determination. If a particular school employee has duties that intersect with a particular university's operations (procurement, dual-enrollment partnerships, real estate dealings), the case-specific facts could create incompatibility.

Q: Does it matter what kind of school employee we're talking about?
A: Yes. A custodian likely has fewer overlap risks than a superintendent who negotiates with the university over dual-enrollment funding or teacher-prep partnerships. The risk grows with seniority and the scope of decision-making authority.

Q: Are there any state universities where local school employees clearly cannot serve as trustee?
A: The opinion does not list any in this category. Local school district employees are not the same as state-agency employees, so they are not covered by the five named statutes. The opinion's footnote 3 explicitly excludes from its scope state-run primary and secondary schools (state schools for the deaf and blind), where the employee would be a state employee.

Background and statutory framework

Arkansas's dual-office framework breaks down into three layers, per Byrd v. State, 240 Ark. 743 (1966):

1. Constitutional prohibitions. Found in articles like Ark. Const. art. 5, § 7 (legislators cannot hold civil offices), and art. 19, § 6 (US/foreign offices for Arkansas officials).
2. Statutory prohibitions. Targeted bars on specific combinations.
3. Common-law incompatibility. Two offices are incompatible when the duties conflict.

For Arkansas's flagship state universities, the General Assembly enacted bars on state-agency employees serving as trustees: §§ 6-65-201 (Arkansas State), 6-65-301 (Arkansas Tech), 6-65-401 (Southern Arkansas), 6-66-101 (Henderson State), and 6-67-102 (UCA). The University of Arkansas system has its own statutory framework not addressed in this opinion.

The incompatibility test from Tappan v. Helena Federal Savings & Loan (193 Ark. 1023) was reaffirmed in Thompson v. Roberts (333 Ark. 544). The test asks whether one office is subordinate to or supervises the other, whether the holder of one can audit or remove the other, or whether the functions are "inherently inconsistent."

Citations

• Ark. Code Ann. §§ 6-65-201 (ASU), 6-65-301 (ATU), 6-65-401 (SAU), 6-66-101 (HSU), 6-67-102 (UCA) (statutory bars on state-agency employees serving as trustee)
• Byrd v. State, 240 Ark. 743, 402 S.W.2d 121 (1966)
• Tappan v. Helena Fed. Savings & Loan Assn., 193 Ark. 1023, 103 S.W.2d 458 (1937)
• Thompson v. Roberts, 333 Ark. 544, 970 S.W.2d 239 (1998)

Source

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

Original opinion text

Opinion No. 2018-131
May 10, 2019

The Honorable Danny Watson
State Representative
413 East 16th Street
Hope, AR 71801-8304

Dear Representative Watson:

I am writing in response to your request for an opinion pertaining to public service. Your question in this regard is as follows:

May a public school administrator, principal or employee serve on the Board of Trustees of a publicly funded state university or college?

RESPONSE

In my opinion, the answer to your question is a qualified "yes." Only a finder of fact can make an ultimate determination based upon all the attendant circumstances surrounding such public-school employment and board of trustee service. I am not empowered to act as a fact-finder in the issuance of Attorney General opinions.

Your question implicates so-called "dual-office holding" principles. Each instance of dual office-holding must be evaluated on its own facts, taking into account any legal provisions applicable to the particular offices or employments in question. I will, however, set forth the applicable legal standards to evaluate a dual-service question below.

There are three possible types of legal prohibitions to dual-office holding: 1) constitutional prohibitions; 2) statutory prohibitions and 3) the common-law "doctrine of incompatibility." No constitutional or statutory prohibitions appear to apply to the type of dual service you have asked about. But I believe a reviewing court would consider whether the dual service would be barred under the doctrine of incompatibility.

(I take it from your question that you are asking strictly about local school-district administrators and employees, as opposed to those who serve state-run primary and secondary schools, such as the state schools for the deaf and blind, and who would be considered state employees. There are statutory prohibitions against state employees serving on certain state universities' boards of trustees. See Ark. Code Ann. §§ 6-65-201, 6-65-301, 6-65-401, 6-66-101, and 6-67-102 (making, inter alia, "employees of any state department, state agency, or state institution" ineligible for service on the boards of trustees for Arkansas State University, Arkansas Tech University, Southern Arkansas University, Henderson State University, and the University of Central Arkansas, respectively).)

The Arkansas Supreme Court has concluded that "[t]he inconsistency, which at common law makes offices incompatible" exists where "one is subordinate to the other, and subject in some degree to the supervisory power of its incumbent, or where the incumbent of one office has the power to remove the incumbent of the other or to audit the accounts of the other." In particular, the court has explained:

Incompatibility arises ... from the nature of the duties of the offices, when there is an inconsistency in the functions of the two, where the functions of the two are inherently inconsistent or repugnant, as where the antagonism would result in the attempt by one person to discharge the duties of both offices, or where the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both.

Thus, the relevant question is whether the occupancy of both offices by the same person is detrimental to the public interest or, put differently, whether performing the duties of one interferes with the performance of the other.

It seems unlikely, in general, that the duties incumbent upon administrators or employees of a local school district would be incompatible with service on a college or university board of trustees. Absent certain facts, of which I am unaware, neither position is subordinate to the other, nor does there seem to be a facial inconsistency in the functions of the two positions.

Therefore, while the common-law doctrine of conflict of interest does not appear to expressly prohibit the dual service you have asked about, it nevertheless provides guidance for determining whether a given situation presents an impermissible conflict of interest. All such conflicts of interest must be considered in evaluating the type of dual service you have presented.

Sincerely,

LESLIE RUTLEDGE
Attorney General