Are county advisory boards in Arkansas governing bodies subject to FOIA open meetings, and does an uncodified ordinance survive?

Plain-English summary

State Senator Mark Johnson asked AG Leslie Rutledge eight questions about county advisory boards generally and the Pulaski County Election Advisory Board specifically. The AG answered the broad-statutory and FOIA questions and declined the questions that required interpreting a specific Pulaski County ordinance.

The two substantive holdings:

Section 14-14-705 creates two distinct kinds of boards, not one body with conflicting powers. Subsection (a) authorizes a county quorum court to "establish county advisory or administrative boards." Subsection (b)(1) (advisory boards) provides that they "shall not have the power to administer programs or set policy." Subsection (b)(2) (administrative boards) provides that they "may be established to exercise administrative powers granted by ordinance." The two subsections do not conflict; they describe two different types of bodies with different authorities. The senator's first question turned on a misreading that conflated the two; once separated, the apparent conflict vanishes, and questions 1 and 2 (which depended on the alleged conflict) became moot.

Advisory boards under Section 14-14-705 are not "governing bodies" under FOIA, so the open-meeting requirement does not reach them. The FOIA's open-meetings provision (Ark. Code Ann. § 25-19-106(a)) applies to "governing bodies" of counties and other political subdivisions. The FOIA does not define the term, and the Arkansas Supreme Court has not, but the AG's office and the leading commentators have consistently opined that a "governing body" is one with decision-making authority. An advisory board under § 14-14-705(b)(1) is, by statutory design, denied that authority. It may "furnish advice, gather information, make recommendations, and perform other activities as may be prescribed by ordinance" (Ark. Code Ann. § 14-14-705(b)(1)(A)), but the ejusdem generis canon limits "other activities" to similarly non-decisional ones (Edwards v. Campbell, 2010 Ark. 398, 370 S.W.3d 250). The answer does not change if an advisory board nevertheless purports to exercise decision-making authority. (The AG noted, though, that in that scenario the board may be wise to follow the open-meetings rules anyway, because if the quorum court ratifies its ultra vires actions, the records may be subject to FOIA challenge.)

The AG declined questions 4-7, which all turned on interpreting Pulaski County Ordinance 02-OR-104 establishing the Pulaski County Election Advisory Board. Long-standing AG policy is to decline to construe local ordinances. The senator was effectively asking whether the specific ordinance had given that board more than advisory powers, whether that created conflicts with the County Election Commission, and whether it made the board a "governing body" subject to FOIA in practice. None of those could be answered without reading the ordinance, which fell outside the AG's role.

On the eighth question (codification): Section 14-14-903 requires county ordinances to be compiled into a uniform code. The Pulaski County election ordinance was uncodified. The AG concluded that the ordinance was nonetheless valid. Section 14-14-903's effect is that an uncodified ordinance lacks "prima facie evidence" status (Ark. Code Ann. § 14-14-903(d)(4)), but the section does not say uncodified ordinances are invalid. Section 14-14-807 lists state laws that bind county legislative procedure, and codification under § 14-14-903 is not on that list. So failure to codify is a problem of evidentiary status only, not of validity.

Currency note

This opinion was issued in 2020. 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

What's the difference between a county advisory board and a county administrative board?
The structural difference is in subsections (b)(1) and (b)(2) of Ark. Code Ann. § 14-14-705. Advisory boards under (b)(1) "shall not have the power to administer programs or set policy"; they advise, gather information, and make recommendations. Administrative boards under (b)(2) "may be established to exercise administrative powers granted by ordinance." A given board is one or the other, not both.

Why does it matter whether a board is a "governing body" under FOIA?
The FOIA open-meetings provision (Ark. Code Ann. § 25-19-106(a)) reaches "governing bodies" of counties and other political subdivisions. If a body falls outside the term, its meetings are not governed by FOIA's notice and openness requirements. The line between "decision-maker" and "advisor" is the operative one.

What if an advisory board acts as if it has decision-making authority?
The AG suggested that even though, by statute, advisory boards are not governing bodies, a board acting beyond its statutory authority may be wise to comply with open-meeting requirements anyway. Otherwise, if the quorum court ratifies the board's ultra vires actions, FOIA challenges may follow. This is practical advice, not a legal holding.

Why did the AG refuse to answer questions about the Pulaski County ordinance?
Long-standing AG policy: this office declines to construe local ordinances when issuing official opinions. The AG's role is interpreting state law, not playing judge to local enactments.

If a county ordinance isn't codified, is it valid?
Yes, generally. Section 14-14-903 imposes a codification requirement, but the only direct consequence the section identifies is that an uncodified ordinance lacks "prima facie evidence" status. Section 14-14-807 enumerates the state-law constraints on county legislation, and codification is not among them. So the ordinance can still be valid; it just may face evidentiary friction in litigation.

Background and statutory framework

Ark. Code Ann. § 14-14-705 sits in the county-government chapter and authorizes quorum courts to create advisory or administrative boards by ordinance. Subsections (b)(1) and (b)(2) define the two types and their permitted powers. Ark. Code Ann. § 25-19-106 is the FOIA open-meetings provision, which applies to "governing bodies." Ark. Code Ann. § 14-14-807 lists state laws that bind county legislative authority; § 14-14-903 imposes a codification requirement; § 14-14-904 and § 14-14-905 set out the substantive procedures for adopting ordinances; § 14-14-907 sets supermajority requirements for certain appropriation ordinances.

The "governing body equals decision-maker" principle traces to a chain of AG opinions (Op. Att'y Gen. 2018-118, 2014-124, 2006-059) and Watkins & Peltz, The Arkansas Freedom of Information Act (5th ed., 2009).

The codification analysis pulls in canons of statutory construction (uncodified ordinances lack prima facie evidence weight per Ark. Code Ann. § 14-14-903(d)(4); Velder v. Crown Exploration Co., 10 Ark. App. 273, 663 S.W.2d 205 (1984), defines "prima facie evidence"; Hinkle v. Perry, 296 Ark. 114, 752 S.W.2d 267 (1988), is cited generally on prima facie evidence in this area).

Citations

Statutes:

• Ark. Code Ann. § 14-14-705 (Repl. 2013) (county advisory or administrative boards)
• Ark. Code Ann. § 14-14-807, -807(2) (Repl. 2013) (state laws binding county legislative authority)
• Ark. Code Ann. § 14-14-903 (Supp. 2019) (codification of county ordinances)
• Ark. Code Ann. § 14-14-904 (Supp. 2019) (procedures for adopting ordinances)
• Ark. Code Ann. § 14-14-905 (Repl. 2013) (procedures for introducing and amending ordinances)
• Ark. Code Ann. § 14-14-907 (supermajority requirement for certain appropriation ordinances enacted without separate readings)
• Ark. Code Ann. § 25-19-106(a) (Supp. 2019) (FOIA open-meetings provision)

Cases:

• Edwards v. Campbell, 2010 Ark. 398, 370 S.W.3d 250 (ejusdem generis canon)
• Velder v. Crown Exploration Co., 10 Ark. App. 273, 663 S.W.2d 205 (1984) (definition of prima facie evidence)
• Hinkle v. Perry, 296 Ark. 114, 752 S.W.2d 267 (1988)

Prior opinions referenced:

• Op. Att'y Gen. 2018-118 (citing 2014-124 with approval)
• Op. Att'y Gen. 2014-124 ("governing body" equals decision-making body)
• Op. Att'y Gen. 2006-059 (same)
• Ops. Att'y Gen. 2019-035, 2015-020, 2004-173 (declining to construe local ordinances)
• Op. Att'y Gen. 2005-223 (county ordinance invalid for failure to meet § 14-14-905's publication requirement)
• Op. Att'y Gen. 92-085 (citing § 14-14-807 for two-thirds vote requirement under § 14-14-907)

Other authority:

• John J. Watkins & Richard J. Peltz, The Arkansas Freedom of Information Act 74-85 (Arkansas Law Press, 5th ed., 2009)

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. 2019-067
April 16, 2020

The Honorable Mark Johnson
State Senator
P.O. Box 241022
Little Rock, AR 72223

Dear Senator Johnson:

This is in response to your request for an opinion on a number of questions concerning the formation of county advisory boards under Ark. Code Ann. § 14-14-705 (Repl. 2013). Your request also pertains specifically to the Pulaski County Election Advisory Board established by County Ordinance 02-OR-104, which you state is uncodified. I have restated (paraphrasing slightly) your questions, and will address them in the order posed.

Question 1: In one breath, the Legislature limited these [advisory] boards to functions of reviewing and making recommendations. Yet in the next, it permits them the ability to "exercise administrative powers granted by county ordinance." The two statutory provisions appear to be in direct conflict with one another. Do county advisory boards have the ability to "exercise administrative powers"? If they do, then could they be considered "governing bodies"?

Question 2: And, if they do, would that be considered an unconstitutional delegation of legislative authority?

Answering these questions requires explaining the two types of boards authorized by Ark. Code Ann. § 14-14-705. This statute provides general authority for the creation of "advisory or administrative" boards by county ordinance: "A county quorum court, by ordinance, may establish county advisory or administrative boards for the conduct of county affairs." It is clear under subsections 14-14-705(b)(1) (regarding advisory boards) and 14-14-705(b)(2) (regarding administrative boards) that these are two distinct types of bodies.

You express concern that these two subsections of section 14-14-705 are in conflict. As we can see, however, they do not conflict because they address different bodies. More specific to your first question, advisory boards "shall not have the power to administer programs or set policy." Administrative boards, by contrast, "may be established to exercise administrative powers granted by ordinance...."

This response renders the remainder of these questions moot.

Question 3: The previous question is also critical in determining whether the Arkansas Freedom of Information Act [FOIA] applies to these bodies. The open meeting provisions of FOIA apply to "governing bodies." Is a board created pursuant to Ark. Code Ann. § 14-14-705 a governing body? And would the answer to this question change depending on whether a board such as the Pulaski County Election Advisory Board actually exercised these powers?

Some explanation of the FOIA's open-meetings provision will be helpful before addressing these questions. The FOIA requires that, except as otherwise specifically provided, all meetings of the "governing bodies" of counties and other political subdivisions "shall be public meetings." The FOIA does not define "governing bodies." Nor is there any definitive Arkansas case law on the meaning of this term. However, this office and the leading commentators on the FOIA have consistently opined that a governing body is one with decision-making authority. A group that lacks decision-making authority, on the other hand, is not a governing body under the FOIA. Instead, such a group generally is considered an "advisory body." I believe this category includes a "county advisory board" under subsection 14-14-705(b)(1) that, consistent with its title, acts solely in an advisory capacity.

An advisory board under this body of law may "assist a county office, department, or subordinate service district." It is specifically denied the power to "administer programs or set policy." It may only "furnish advice, gather information, make recommendations, and perform other activities as may be prescribed by ordinance."

Accordingly, the answer to the first part of the above question is "no" regarding a board created by county ordinance under subsection 14-14-705(b)(1) as an advisory board. Because this type of board lacks decision-making authority, it is not a "governing body" under the FOIA. In response to the second part of this question, the answer does not change if a county advisory board nevertheless purports to exercise decision-making authority. (If an advisory board nevertheless attempts to exercise powers that are beyond the scope of its authority under section 14-14-705, it may be advisable for the board to follow the FOIA's open-meeting requirements nonetheless. Otherwise, the board may face a FOIA challenge if it purports to act as a governing body, and particularly if the quorum court ratifies its ultra vires actions.)

Question 4: Although one could claim that the Pulaski County Election Advisory Board only acts in an advisory capacity, its enabling ordinance suggests otherwise. It gives the Board powers not limited to merely auditing functions. Given this language in the ordinance, can the Board be considered a "governing body"?

Question 5: In addition, does the "not limited to" language in the ordinance create the potential for a conflict of authority with the Pulaski County Election Commission and in that respect is it an over-broad delegation of power?

Question 6: Does the Board's auditing authority give it oversight over the County Election Commission?

Question 7: Given the fact that the advisory board appears to have been given more than advisory powers by the county, is it a "governing body" subject to the open meeting provisions of the FOIA and required to hold public meetings?

The resolution of each of these questions turns on the interpretation of the ordinance establishing the Pulaski County Election Advisory Board. I consequently am unable to provide an opinion in response to these inquiries. It has long been the policy of this office to decline to construe the provisions of local ordinances when rendering official opinions.

Question 8: Does the lack of codification invalidate County Ordinance 02-OR-104?

The answer to this question is "no," in my opinion. Arkansas Code section 14-14-903 requires the compilation of county ordinances into a "uniform code," and I gather that the ordinance in question is not included in this compilation. The absence of the ordinance from the uniform code means that there is no "prima facie evidence" of the ordinance. However, there is no indication in section 14-14-903 that an ordinance is invalid for lack of compliance with section 14-14-903's codification requirement. Nor has my research revealed any other statute to that effect.

The General Assembly has designated certain state laws that operate as a "prohibition on the legislative power of a county acting other than as provided." Among such state laws are "[a]ll state laws establishing legislative procedures or requirements for county government[.]" With regard to your particular question, therefore, the issue for resolution regarding the validity of this ordinance is whether the county followed procedures established by state law for the adoption of county ordinances. If those procedures were followed, then in my opinion, the ordinance is not invalid because of its absence from the uniform code. The codification requirement is not part of county legislative procedures or requirement; and I have found no statute indicating that an ordinance is invalid on the basis of a lack of codification.

Sincerely,

LESLIE RUTLEDGE
Attorney General