When a nonprofit fire department converts to an Arkansas fire protection district, which statutory procedures must the county follow?

Plain-English summary

Twelfth Judicial District Prosecuting Attorney Daniel Shue asked Attorney General Leslie Rutledge a 15-question road map for converting two nonprofit fire departments in Sebastian County into formal fire protection districts. The trigger statute, Ark. Code Ann. § 14-284-226, says that on a petition from a fire department, "the quorum court shall grant the petition" and the department "shall become a fire protection district using the procedures set out in this subchapter."

The AG resolved the threshold question first: "this subchapter" means subchapter 2 of chapter 284 of title 14. From there, every subsequent procedural step in the conversion (the 10% elector petition, the ordinance, the published notice, the 60-to-90-day public hearing, the election of commissioners, and the property assessments) flows from the same subchapter, as if the fire department were being formed from scratch. The opinion then walked through each of the prosecutor's 15 sub-questions, anchored to specific statutory provisions in §§ 14-284-204, -208, -212, -215, and -216.

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.

Anyone planning a conversion now should check the current version of subchapter 2 of chapter 284, including the procedures in § 14-284-204 and the timberland assessment rule in § 14-284-212(g)(3).

Historical context

What the prosecutor was working with

Two nonprofit fire departments in Sebastian County had filed petitions under § 14-284-226 to become fire protection districts. The statute is short. It says the county "shall grant the petition" and the conversion will use "the procedures set out in this subchapter." The prosecutor needed a step-by-step map. The AG provided one.

What the AG concluded, step by step (as of 2019)

The applicable subchapter. Section 14-284-226 sits in subchapter 2 of chapter 284 of title 14. The cross-reference to "this subchapter" means subchapter 2.

Procedures under § 14-284-204. The county must follow them. The AG read § 14-284-226(b)(2) literally: "shall become a fire protection district using the procedures set out in this subchapter." Section 14-284-204, which is part of subchapter 2, prescribes the basic formation procedure.

Public hearing requirement. Yes. Section 14-284-204(a)(3)(A) requires an "initial public hearing" before the quorum court adopts an ordinance. After certifying the elector petitions and holding the initial hearing, the quorum court may adopt the formation ordinance.

The 10% elector petition. The AG flagged that § 14-284-204(a)(1) and (b)(1) require a petition of 10% of qualified electors in the proposed district. The prosecutor had not asked about this, but the AG warned that the elector petition is part of "the procedures" under § 14-284-226. The AG answered that the quorum court could not adopt the ordinance before elector petitions were certified. If the legislature did not intend that result, the AG wrote, "legislation correction or clarification would be required."

Ordinance and ratification. The quorum court adopts an ordinance once the elector petitions are certified. Section 14-284-204(c) requires:

• Publication of the ordinance in a newspaper of general circulation;
• A public hearing held 60 to 90 days after publication, at a large public facility within the proposed district;
• Voiding of the ordinance if a majority of qualified electors appear in opposition or sign opposing petitions filed by the hearing date.

Section 14-284-208 (board of commissioners). Applies. Districts formed after July 3, 1989, elect their commissioners "by the qualified electors residing within the district" at a public meeting called by the county court. The county court establishes the procedure for the meeting and the election. Quorum court confirmation is not required; that step exists for some other appointment regimes but not here.

Section 14-284-212 (plans, assessors, assessments). Applies once the district is established. The board, not the county, determines whether assessments are by classification, flat fee per parcel, or flat fee per landowner. Section 14-284-212(g)(3) provides that on or after March 6, 2015, the board "shall assess timberland at a rate not to exceed twenty-five percent (25%) of the forest fire protection tax under § 26-61-103."

Timing. Subchapter 2 does not specify deadlines for assessments to align with the county tax book or with implementation of the conversion. The AG suggested coordinating with the county clerk and county collector. For implementation, the AG cited Lewis v. Conlee, 258 Ark. 715, 529 S.W.2d 132 (1975), for the proposition that a court would impose a "reasonably prompt" timing requirement to keep the conversion from stalling.

Wind-down of the nonprofit. Subchapter 2 contains no special requirements for fire departments organized as nonprofit corporations. The AG did not identify any other wind-down statute or procedure.

Sebastian County’s role. Asked about the county government’s responsibilities, the AG referred back to her answers on the ordinance, hearing, notice, and commissioners’ election. She did not characterize the county’s role as passive.

Why the subchapter reference mattered

Section 14-284-226 directs fire departments to use the procedures in “this subchapter.” The AG identified that as subchapter 2 of chapter 284 and then answered how its formation, hearing, board, and assessment provisions apply to the requested conversion.

Common questions

Q: Could Sebastian County skip the 10% elector petition because the fire department itself was the petitioner? A: The AG signaled "no." Section 14-284-226(b)(2) folds the conversion into "the procedures set out in this subchapter," and § 14-284-204 requires the elector petition. The AG said that excluding the elector petition from the conversion procedures would require legislative correction or clarification.

Q: Are commissioners of the new fire protection district appointed or elected? A: Elected, by the qualified electors residing in the district, at a public meeting called by the county court. The quorum court does not appoint them and does not confirm them.

Q: Could the board set a flat fee instead of an assessment based on benefits? A: Yes, for districts formed after July 3, 1995. Section 14-284-212(g)(1)(A) authorizes the board to assess a "flat fee" per parcel or per landowner, with the option of a different flat fee for commercial property and unimproved property.

Q: How are timberlands assessed?
A: Under § 14-284-212(g)(3)(A)(i), at a rate not to exceed 25% of the forest fire protection tax under § 26-61-103. The board "shall assess" timberland; it is not optional once the district is formed.

Q: When must the conversion be completed?
A: The statute is silent. The AG predicted a court would impose a "reasonably prompt" timing requirement under Lewis v. Conlee. Practical timing should be worked out with the county clerk and county collector to align with the property-tax book.

Background and statutory framework

Arkansas allows two routes to a fire protection district under subchapter 2 of chapter 284 of title 14:

1. Original formation under § 14-284-204, beginning with a petition of 10% of qualified electors in the proposed district.
2. Conversion under § 14-284-226, where an existing fire department petitions the county to be converted into a district.

Section 14-284-226 channels the conversion path back into the original-formation procedures. That is the statutory move that makes the AG's analysis run: every procedural step in subchapter 2 also applies to a conversion, including the elector petition, ordinance, hearing, and elected commissioners. Once the district exists, § 14-284-212 governs assessments, and §§ 14-284-215 and -216 govern collection of the assessments alongside property taxes.

The cardinal rule of Arkansas statutory construction, repeatedly cited in the opinion, is that statutes are read just as they read, giving words their ordinary meaning. Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003). Courts will not "resort to a strained construction of statutory language for the purpose of restricting or expanding a statute's plain meaning." Thompson v. Younts, 282 Ark. 524, 669 S.W.2d 471 (1984). When a statute "conveys a clear and definite meaning, there is no need to resort to the rules of statutory construction." Brock v. Townsell, 2009 Ark. 224 at 9, 309 S.W.3d 179, 186.

Citations and references

Statutes:

• Ark. Code Ann. § 14-284-226 (conversion of fire department to fire protection district)
• Ark. Code Ann. § 14-284-204 (formation procedures)
• Ark. Code Ann. § 14-284-208 (board of commissioners)
• Ark. Code Ann. § 14-284-212 (plans, assessors, and assessments)
• Ark. Code Ann. §§ 14-284-215, -216 (collection of assessments)
• Ark. Code Ann. § 26-61-103 (forest fire protection tax)

Cases:

• Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003), Ark. Supreme Court, ordinary meaning of statutory language
• Thompson v. Younts, 282 Ark. 524, 669 S.W.2d 471 (1984), Ark. Supreme Court, no strained statutory construction
• Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179, Ark. Supreme Court, plain-meaning rule
• Lewis v. Conlee, 258 Ark. 715, 529 S.W.2d 132 (1975), Ark. Supreme Court, reasonable-time requirement for council action

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. 2018-136

April 2, 2019

The Honorable Daniel Shue
Prosecuting Attorney
Twelfth Judicial District
901 South B Street, Suite 209
Fort Smith, AR 72901

Dear Mr. Shue:

This is in response to your request for my opinion on a number of questions concerning petitions submitted pursuant to Ark. Code Ann. § 14-284-226, which provides for the conversion of fire departments to fire protection districts. According to your correspondence, the Sebastian County Quorum Court has received two such petitions from fire departments that currently operate as non- profit corporations.

I will begin by setting out section 14-284-226. I will then restate and address your questions. Section 14-284-226 states:

(a) A fire department that seeks to become a fire protection district shall make the request by petition to the quorum court of the county, or counties if the fire department serves more than one (1) county.

(b) Upon the request by petition in subsection (a) of this section:

( 1) The quorum court shall grant the petition to convert the fire department to a fire protection district; and

(2) The fire department shall become a fire protection district using the procedures set out in this subchapter. 1

1
Ark. Code Ann . § 14-284-226 (Supp . 2017).

323 CENTER STREET. SU ITE 200 · LI TTLE RO C K. ARKAN SAS 7220 1 TELE PH ONE (501) 682-2007 · FAX (50 1) 682-8084 ARKANSASAG.GOV

The Honorable Daniel Shue
Pros. Att'y, 12th Judicial District
Opinion No. 2018-136
Page 2

Question 1 - What subchapter does Ark. Code Ann.§ 14-284-226 refer [to] with regard to the procedure to be followed?

Section 14-284-226 is part of subchapter 2 of chapter 284 of Arkansas Code title

14. Accordingly, the "subchapter" referenced in section l 4-284-226(b )(2) is, by a
    plain reading, subchapter 2 of chapter 284 of title 14.

Question 2: Should Sebastian County follow the procedures set forth in Ark. Code Ann.§ 14-284-204?
2
"Yes," based on established rules of statutory interpretation. The statute you asked about in your first question-Ark. Code Ann. § l 4-284-226(b )(2)-states that "a fire department shall become a fire protection district using the procedures set out in [subchapter 2 of chapter 284 of title I 4]." (Emphasis added). And the statute you ask about here-Ark. Code Ann. § 14-284-204-is part of this "subchapter 2." The procedures in section 14-284-204 must, therefore, be used for a fire department to become a fire protection district.

Question 3: Should there be a public hearing in the proposed fire districts before an ordinance is presented to the Sebastian County Quorum Court?

"Yes." Section 14-284-204 requires an "initial hearing" 3 before the quorum court may adopt an ordinance to establish a fire protection district:

After the petitions are certified and the initial public hearing held, the county quorum court may adopt an ordinance to establish the district, to levy assessments on property or the landowners, or both, and to call for a 4 public hearing on the ordinance.

2
The cardinal rule of statutory interpretation is to construe a statute just as it reads, giving its words their ordinary and usually accepted meaning in common language. See Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003). Courts will not reso1t to a strained construction of statutory language for the purpose of restricting or expanding a statute's plain meaning. Thompson v. Younts, 282 Ark. 524, 669 S.W.2d 471 (1984). To the extent the statute "conveys a clear and definite meaning, there is no need to resort to the rules of statutory construction." Brock v. Townsell, 2009 Ark. 224 at 9, 309 S.W.3d 179, 186. 3 Ark. Code Ann.§ 14-284-204(a)(3)(A) (Supp. 2017).
4
Id. at§ 14-284-204(b)(l).

The Honorable Daniel Shue
Pros. Att'y, 12th Judicial District
Opinion No. 2018-136
Page 3

This "initial public hearing" applies because, as stated in response to Question 2 above, the procedures in section 14-284-204 must be used for a fire department to become a fire protection district.

The procedures in section 14-284-204 also include a petition of 10 per cent of qualified electors in the area proposed to be included in the district. 5 You have not asked about this petition-of-electors part of section 14-284-204. However, this is part of the "procedures" that section 14-284-226 says a fire department must use to become a fire department district. If the General Assembly did not intend to include this as part of the "procedures" under section 14-284-226, legislation correction or clarification would be required.

Question 4: Does the Sebastian County Quorum Court enact an ordinance based upon these petitions and set a public hearing to review the ordinance after passage and subject to ratification by a majority of residents in the proposed fire districts?

If the "petitions" referenced here are not petitions of electors that have been certified pursuant to section 14-284-204, then the answer is "no." As noted in response to Question 3 above, section 14-284-204 provides for the quorum court's adoption of an ordinance to establish a fire protection district after "petitions [of electors] are certified." 6 And these procedures apply when a fire department "seeks to become a fire protection district" pursuant to section 14-284-226.

If, however, the fire department submits the requisite petition of electors, then the quorum court may adopt an ordinance to establish the district; and the "notice" and "public hearing" requirements under section 14-284-204 will apply. The quorum court publishes the notice, and a hearing is held sometime between 60 and 90 days following publication:

(1 )(A) When an ordinance is adopted by the quorum court establishing a fire protection district, the quorum court shall publish notice of the adoption of the ordinance in a newspaper of general circulation in the county.

5
Id. at§ 14-284-204(a)(l), (b)(l).
6
Id. at § 14-284-204(b)(I).

The Honorable Daniel Shue
Pros. Att'y, 12th Judicial District
Opinion No. 2018-136
Page 4

(B) The notice shall include a copy of the ordinance and shall prescribe a time and place within the proposed district for a public hearing on the ordinance.

(2)(A) A public hearing shall be held at some large public facility within the boundaries of the proposed district at least sixty (60) days and not more than ninety (90) days after the date of publication of the notice. 7

The public hearing is held to give affected property owners an opportunity to oppose the establishment of the district:

(B) If at the hearing a majority of the qualified electors in the proposed district appear in person to oppose the establishment of the district or if petitions opposing the establishment of the district and containing the signatures of a majority of the qualified electors in the proposed district are filed at or before the public hearing, the ordinance creating the district shall be void.

(C)(i) If a majority of the qualified electors of the proposed district do not object to the establishment of the district in person or by petition within the time prescribed in this subsection, the ordinance shall be valid and the district shall be established. 8

Question 5: Is Ark. Code Ann. § 14-284-208 "Order for Establishment-Board of Commissioners-Appointment-Compensation" to be foil owed?

Yes, I believe these provisions in section 14-284-208 (Supp. 2017) apply as part of the "procedures" for a fire department to become a fire protection district.

Question 6: Does Sebastian County appoint the Board of Commissioners or are they elected? And if elected, by whom?

Section 14-284-208 states in relevant part that commissioners of districts formed after July 3, 1989, shall be elected by the qualified electors in the district "at a public meeting called by the county court":

7
Ark. Code Ann. § 14-284-204( c).
8
Id. at § 14-284-204( c)(2).

The Honorable Daniel Shue
Pros. Att'y, 12th Judicial District
Opinion No. 2018-136
Page 5

The members of the boards of commissioners of fire protection districts formed after July 3, 1989, ... under this subchapter shall be elected at a public meeting called by the county court. The commissioners shall be elected by the qualified electors residing within the district. 9

The statute is silent regarding the election procedure itself. But given that the county court calls the meeting, I conclude that the county court will establish the procedure for calling the meeting and for holding the election. 10 I have found no other applicable statutes governing the matter.

Question 7: Does the Sebastian County Quorum Court confirm the Board of Commissioners appointment?

No. As noted in response to Question 6, commissioners of districts formed after July 3, 1989 are elected at a public meeting called by the county court. I have found no provision requiring quorum court confirmation of such commissioners.

Question 8: Is Ark. Code Ann. § 14-284-212 "Preparation of Plans - Assessors and Assessments Generally" to be followed?

Yes. Once a fire department becomes a fire protection district, section 14-284-212 will apply with respect to plans for providing fire protection services and annual assessments. This follows from the plain language of section 14-284-212, which 11 requires both the development of plans "after [the district's] establishment" and 12 the appointment of assessors to make assessments "within the district."

Question 9: Are the amounts to be levied against real property governed by Ark. Code Ann.§ 14-284-212?

Yes. See response to Question 8 above.

9
Ark. Code Ann. § 14-284-208(b).

10
See Op. Att'y Gen. 99-386.
11
Ark. Code Ann.§ 14-284-212(a) (Supp. 2017).

12
Id. at§ 14-284-212(c)-(g).

The Honorable Daniel Shue
Pros. Att'y, 12th Judicial District
Opinion No. 2018-136
Page 6

Question 10: Is a flat fee per parcel or per acre the guideline or is an assessment made by classification ofproperty?
13
The "elected board of commissioners' will make this determination.

Question 11: Is timberland a "shall assess" provision?

This question presumably refers to Ark. Code Ann. § 14-284-212(g)(3), which addresses the assessment rate on timberland"[ o]n and after March 6, 2015":

On and after March 6, 2015, the elected board of commissioners of a fire protection district shall assess timberland at a rate not to exceed twenty-five percent (25%) of the forest fire protection tax under § 14
26-61-103.

Similar to my response to Question 8 above, once a fire department becomes a fire protection district pursuant to Ark. Code Ann. § 14-284-226, this provision will apply to assessments.

Question 12: What are the deadlines and timeframe for the assessment in order to meet the dates for publishing the tax book and sending tax statements pursuant to law?

Subchapter 2 of chapter 284 of title 14 does not prescribe specific deadlines for assessments in relation to the time frames that apply to the collection of ad valorem taxes. 15 Concerns about the timing of district assessments may raise practical considerations, and may suggest the need to confer or coordinate with the county clerk and county collector.

13
Id. at § l 4-284-2 l 2(g)( I )(A) (authorizing the board of a "fire protection district formed after July 3, 1995" to assess a "flat fee" either "per parcel" or "per landowner" as an alternative to assessing benefits, and fmther authorizing such a board to "establish a different flat fee for the classification of prope1ty as commercial prope1ty" and as "unimproved prope1ty.").

14
Ark. Code Ann.§ 14-284-212(g)(3)(A)(i).

15
Fire protection districts created under this subchapter collect amounts that are either assessed as benefits against prope1ty within the district or levied as flat fees on property within the district, both of which are collected with prope1ty taxes. See Ark. Code Ann. §§ 14-284-215 (Repl. 1998) and -216 (Supp. 2017).

The Honorable Daniel Shue
Pros. Att'y, 12th Judicial District
Opinion No. 2018-136
Page 7

Question 13: What are the deadlines and timeframe for the implementation of the conversion?

Subchapter 2 of chapter 284 of title 14 does not specify any deadlines or timeframes in this regard. But I believe a court faced with the question would impose a reasonable time requirement to prevent the conversion from being stymied. There is precedent in analogous circumstances for the imposition of a reasonable time requirement. 16

Question 14: What are the requirements for the winding down of operations for each of those non-profits and the conversion [from] a non-profit organization to a fire protection district?

There are no requirements under Subchapter 2 specific to fire departments formed as nonprofit organizations.

Question 15: What is the responsibility of Sebastian County government with regard to this conversion?

See responses to Questions 4 through 6 above.

Sincerely,

:?"= => /~----
~
LESLIE RUTLEDGE j
Attorney General

16
See Lewis v. Conlee, 258 Ark. 715, 529 S.W.2d 132 (1975) (holding that mandamus should have been granted to require a city council to set a referendum election within a " reasonably prompt period of time" after petitioners requested the referendum).