Could an Arkansas county judge order courthouse employees to take a COVID test after a colleague tested positive?

Plain-English summary

A courthouse worker tested positive for COVID-19. Could the county judge respond by ordering everyone in the building, including other elected officials, to get tested before returning? Representative Wardlaw asked the AG.

Then-Attorney General Leslie Rutledge said no. Arkansas's structure of county government splits authority. The county judge is the chief executive officer (Amendment 55, § 3) and hires county employees other than those of other elected officials, but the quorum court alone sets "employee policy and practices of a general nature" (Ark. Code Ann. § 14-14-805(2)). A blanket COVID-testing requirement is exactly that kind of policy. So the judge could not impose it unilaterally. The judge had even less authority over the elected county clerk, sheriff, assessor, and the rest, because § 14-14-805(2) expressly says quorum-court legislation on employee matters does not apply to elected officers.

The opinion's other half, however, kept a door open. The county judge is the custodian of county property under Amendment 55, § 3 and Ark. Code Ann. § 14-14-1102(b)(3)(A), and may "lease, assign, or not assign use of the property." That authority lets the judge limit who can come inside the courthouse. So while the judge could not order anyone tested, the judge could plausibly bar an exposed employee or official from entering the building. Whether that bar would be reasonable in any specific situation depends on the facts and on the day-to-day administrative needs of the other elected officers' offices.

Currency note

This opinion was issued in 2021. 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

Why can the quorum court do what the county judge cannot?
Because § 14-14-805(2) gives the quorum court "any legislative authority with regard to employee policy and practices of a general nature, including, but not limited to, establishment of general vacation and sick leave policies, general office hour policies, general policies with reference to nepotism, or general policies to be applicable in the hiring of county employees." Health-and-safety mandates fit that category. The county judge's role is administrative, not legislative.

The judge controls the courthouse, right? Doesn't that include who works there?
The judge controls the building. Other elected officials control their offices and staff. The opinion balanced both: "other elected county officials are charged with the day-to-day administrative responsibilities of running their offices, and that necessarily includes accessing office space and overseeing employees. The county judge must recognize these responsibilities when managing the courthouse."

Can the quorum court impose a testing requirement?
Probably yes, "subject to other state and federal limitations." The opinion noted (in a footnote) that the EEOC's December 2020 guidance treated COVID-19 viral testing as permissible under the ADA. Antibody testing was not.

What would "reasonable" access restrictions look like?
The opinion did not list examples. The framework it laid out, that restrictions must be reasonable under all the circumstances and must accommodate other elected officials' need to run their offices, suggests temporary exclusions for exposed individuals, with notice and a clear path back to access, would be the safer approach.

Background and statutory framework

Amendment 55 is the structural backbone of modern Arkansas county government. Section 3 makes the county judge the chief executive officer with custody of county property and authority to hire most county employees. Ark. Code Ann. § 14-14-1101 implements that. Section 14-14-805(2), in contrast, vests legislative authority in the quorum court, including general employee policy, with the explicit limit that legislation about employee policy and practice "shall be applicable only to employees of the county and shall not apply to the elected county officers of the county."

The list of elected county officers in § 14-14-1301 includes the county judge, circuit clerk, county clerk, assessor, sheriff, collector of taxes, treasurer, county surveyor, coroner, and quorum court district and township officers. Because each of those officers separately controls their own employees and office practices, a county-judge mandate that cuts across all of them runs directly into the structural division of authority.

McCuen v. Jackson, 265 Ark. 819, 581 S.W.2d 326 (1979), called the county judge an "executive officer of the county" in the hiring context. The Arkansas Supreme Court has treated that label as bounded: executive, not legislative.

Citations

Constitutional provisions:

• Ark. Const. amend. 55, § 3

Statutes:

• Ark. Code Ann. § 14-14-805(2) (Repl. 2013)
• Ark. Code Ann. § 14-14-1101(a)(6) (Repl. 2013)
• Ark. Code Ann. § 14-14-1102(b)(3)(A)
• Ark. Code Ann. § 14-14-1102(b)(5)(A) (Repl. 2013)
• Ark. Code Ann. § 14-14-1301 (Supp. 2019)

Cases:

• McCuen v. Jackson, 265 Ark. 819, 581 S.W.2d 326 (1979)

External guidance referenced:

• EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (Updated Dec. 16, 2020)

Source

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

Original opinion text

Opinion No. 2020-030
February 2, 2021
The Honorable Jeff Wardlaw
State Representative
801 E. Church Street
Warren, AR 71671
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Dear Representative Wardlaw:
This is in response to your request for an opinion concerning the authority of county judges. In this regard, you have asked the following questions:
1) Does a county judge have the authority to require county employees and others working in the county courthouse (including other elected officials) to be tested for COVID-19 upon learning of a courthouse worker testing positive for COVID-19?
2) If your answer to the first question is "yes," does the county judge have the authority to bar any county employee and other courthouse workers (including other elected officials) from returning to the courthouse until they are tested and results show that they are not infected by the COVID-19 virus?

RESPONSE
The answer to your first question is "no." A response to your second question is therefore unnecessary.

DISCUSSION
Question 1: Does a county judge have the authority to require county employees and others working in the county courthouse (including other elected officials) to be tested for COVID-19 upon learning of a courthouse worker testing positive for COVID-19?

The answer to your question is generally no, but that does not mean a county judge lacks any power to limit access to county property.

With respect to county employees, such a testing policy could only be adopted by the quorum court. As a county's chief executive officer, the county judge exercises some authority over county employees. For instance, the county judge "hire[s] county employees, except those persons employed by other elected officials of the county." But it is the quorum court, not the county judge, that sets a county's general employment policies and practices. Indeed, Arkansas law specifically vests that body with the authority to set "employee policy and practices of a general nature, including, but not limited to, establishment of general vacation and sick leave policies, general office hour policies, general policies with reference to nepotism, or general policies to be applicable in the hiring of county employees ...." A policy related to employee health and safety of county employees, like a COVID-19-testing requirement, would be such a policy. As such, only the quorum court could (subject to other state and federal limitations) adopt such a policy.

Likewise, the county judge also lacks the power to require other elected officials to undergo testing. Quorum court legislation "dealing with matters of employee policy and practice shall be applicable only to employees of the county and shall not apply to the elected county officers of the county." A county judge also lacks authority to set general employment policies and practices for other elected officials.

Thus, a county judge cannot require county employees or county officials to submit to a COVID-19 test.

That does not, however, mean that the county judge lacks any authority to limit access to county property. The county judge is the custodian of county property, and accordingly, the county judge has general authority to manage that property, including the county courthouse. Yet the county judge's control over county property is not absolute, and the nature and extent of the judge's authority will necessarily depend on the circumstances. For example, other elected county officials are charged with the day-to-day administrative responsibilities of running their offices, and that necessarily includes accessing office space and overseeing employees. The county judge must recognize these responsibilities when managing the courthouse.

In sum, a county judge cannot require that county employees or officials be tested for COVID-19, but a judge might, depending on all the surrounding facts and circumstances, be able to impose reasonable restrictions on workers' and officials' access to county property if they have been exposed to COVID-19.

Question 2: If your answer to the first question is "yes," does the county judge have the authority to bar any county employee and other courthouse workers (including other elected officials) from returning to the courthouse until they are tested and results show that they are not infected by the COVID-19 virus?

Because my response to your first question is "no," a response to your second question is unnecessary.

LESLIE RUTLEDGE
Attorney General